Canada Case Law

Fiera Private Debt Fund III LP v. 3306133 Nova Scotia Limited

Court

Supreme Court of Nova Scotia

The court held that (1) AIG has a duty to defend under the Fiduciary Liability Policy because there is a mere possibility the Eckler Claims (fiduciary breach and conflict of interest, including diversion of pension assets and payment of litigation expenses) fall within the policy; (2) Newline must advance defence costs under the D&O Liability Policy because the pleadings and applicable principles show the true gravamen of the claims implicates directors' board-level decisions and are not categorically excluded by pension-legislation or prior-acts exclusions at this preliminary stage; (3) Eckl…

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• Duty to defend
• Duty to indemnify
• Advancement of defence costs
• Standing and jurisdiction under ccaa s.11
• Insurance act s.28(1)
• Insurance exclusions (known claims/prior acts/pension exclusion)

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Elite Insurance Company (Aviva) v. Borgatti Estate

Court

Federal Court

Summary judgment was granted for the Defendants in a marine insurance coverage dispute because Aviva was estopped from denying coverage under the policy.

• Safety equipment warranty
• Warranty compliance
• Navigation lights
• Estoppel
• Waiver
• Laches

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Deasan Holdings Ltd. v. Continental Casualty Company

Court

British Columbia Court of Appeal

The Court of Appeal allowed the appeal and held Continental had a duty to defend Deasan in a landslide lawsuit, finding the broker bound the insurer and notice of changed risk was effective.

• Duty to defend
• Agency of insurance broker
• Statutory condition 4 (material change in risk)
• Policy interpretation
• Additional insured
• Certificate of insurance

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Kashin v. G.E.S. Construction Limited

Court

Court of Appeal for Ontario

The motion judge’s factual findings that Lloyd’s never unequivocally abandoned its right to void the 2015 Policy, that renewals and premium acceptance occurred in the context of dispute resolution, and that there was no evidence of detrimental reliance or bad faith, justify dismissal of the appellant’s waiver, estoppel and bad faith claims and support allowing Lloyd’s to void the policy for misrepresentation.

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• Duty to defend
• Void for misrepresentation
• Waiver
• Estoppel
• Bad faith
• Costs

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Thunder Bay (City) v. Great American Insurance Company

Court

Court of Appeal for Ontario

One section of the policy's lead exclusion is ambiguous; because ambiguity leaves a mere possibility of coverage, the insurer must defend the City under the established threshold in Progressive Homes; appeal dismissed and insurer ordered to defend.

Source excerpt

• Duty to defend
• Insurance policy exclusions
• Interpretation of exclusion clauses
• Insurance act s.124

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Honeywell International Inc. v. XL Insurance Company Ltd.

Court

British Columbia Court of Appeal

The Court of Appeal held Honeywell could fall within “insured” subcontractor coverage under a wrap-up policy because it allegedly did more than merely supply materials.

• Duty to defend
• Wrap-up insurance
• Policy interpretation
• Exclusion clauses
• Third party proceedings
• Summary trial

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Fares Construction Limited v. Lead Structural Formwork Limited

Court

Supreme Court of Nova Scotia

Proposed amendments to add Sovereign as a party for indemnity and for duty to defend are denied: indemnity claims are premature and barred by the policy "no action" clause until settlement or final judgment; duty to defend disputes, although justiciable, must be pursued in separate declaratory proceedings rather than by joinder in the underlying actions; proposed amendments to defences alleging waiver of subrogation or barring co-insured claims are unsustainable absent an indemnity payment or clear coverage entitlement.

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• Duty to defend
• Duty to indemnify
• No action clause
• Amendment of pleadings
• Subrogation
• Third party joinder

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Kerk-Courtney v. Security National Insurance Company (TD General Insurance Company)

Court

Court of Appeal for Ontario

The Court of Appeal found the application judge erred by deciding the enforceability of the APS 'entire agreement' clause when assessing duty to defend, but nonetheless dismissed the appeal because the appellants breached the policy's prompt notice obligation, relief against forfeiture was not warranted, and therefore the insurer validly denied defense and indemnity.

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• Duty to defend
• Contractual liability exclusion
• Entire agreement clause
• Late notice/failure to give prompt notice
• Relief against forfeiture
• Negligent misrepresentation

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Live Nation Ontario Concerts GP, Inc. v. Aviva Insurance Company of Canada

Court

Court of Appeal for Ontario

The court held that the Nimmo pleadings include mixed claims: security negligence claims against NorthWest are covered under the Aviva policy but separate statutory negligence claims against the respondents are not; Aviva is not liable to pay defence costs that are solely attributable to uncovered statutory negligence claims; equitable contribution is a remedy among concurrent insurers and, in the absence of Starr as a party, Aviva cannot claim equitable contribution from the respondents (insureds); notwithstanding these findings, the appellate court did not disturb the application judge’s in…

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• Duty to defend
• Mixed claims
• Pleadings rule
• Equitable contribution
• Other insurance clauses
• Self-insured retention

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Davies v. AIG Insurance Company of Canada

Court

Court of Appeal for Ontario

The insureds materially misrepresented the nature of their financing by failing to disclose syndicated mortgages; that omission was material both objectively and subjectively to AIG's underwriting decision and triggered the representations and severability exclusion in the D&O policies, relieving AIG of any duty to advance defence costs and entitling it to recover the sums advanced.

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• Directors' and officers' liability insurance
• Misrepresentation and non-disclosure
• Materiality of representations
• Duty to defend
• Fresh evidence / standing of bankrupt

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