Insurance

Coverage Issues For Off-Road Vehicles

A recent decision by the Ontario Licence Appeal Tribunal reminds us of the potential coverage issues surrounding off-road vehicles, such as all-terrain vehicles, commonly referred to as ATVs. The applicant was injured in an ATV incident on July 11, 2015, while a guest at a property in rural Ontario. He attended the property as a guest of Family A. Family A had recently purchased the property from Family B. The applicant suffered significant injuries and applied for accident benefits, under his father's insurance policy with Aviva Canada Inc. under the Statutory Accident Benefit Schedule — Effective September 1, 2010 (the "Schedule"). Read More
Commercial LitigationInsurance

Ontario Court Provides “Appropriate” Relief Against Statutory Limitation For Insurance Claims

Ontario's two year limitation period often becomes a trap for unwary policy holders who suffer a property loss. It is not uncommon to see claims drag on through the adjusting process, with interim payments being made, only to have insurers deny some or all of the claim more than two years after the loss. When the insured sues, insurers then claim the action is statute barred — a position our courts have accepted in a number of cases. A recent decision by Justice Paul Perell provides the insured with some relief from this trap. In Nasr Hospitality Services Inc. v. Intact Insurance ("Nasr"),1 Justice Perell confirmed that even though your claim may arise on the date of loss, it is not necessarily fully "discovered" until a later date. He concluded that where an insurer began paying on a property loss, a coverage claim was not discoverable until the insurer communicated a clear repudiation of its obligation to indemnify the insured. Read More
Insurance

Coachman Insurance Co. v. Kraft: A Passenger can be in “Use” of a Motorized Vehicle

In Coachman Insurance Co. v. Kraft,[1] a recent decision of the Ontario Superior Court, the Court found that “use” of a “motorized vehicle” in a homeowner’s policy exclusion includes the conduct of a passenger on an ATV. Even as a passenger, one may exercise “some form of control over” a motor vehicle, sufficient to come within the definition of the term “use”. Read More
Commercial LitigationInsurance

The Ontario Court Of Appeal Leaves Window Cleaners Out To Dry On Window Replacement Costs

The Ontario Court of Appeal's recent decision in G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Co. ["Procleaners"]1 is an interesting example of the application of the "your work" exclusion, particularly since the Court rejected the approach to policy interpretation that the Newfoundland Court of Appeal gave to an exclusion with very similar wording. Read More
Insurance

In Nodel v. Stewart Title Guaranty Co., it “Paid” to Know the Rules of Policy Interpretation

n a recent decision from the Ontario Superior Court, Nodel v. Stewart Title Guaranty Co., Justice Matheson applied well established policy interpretation principles to an "exception from coverage" clause contained in a schedule to a title insurance policy, which effectively operated as an exclusion clause. Typically, an exclusion clause bars coverage when a claim otherwise falls within the initial grant of coverage. Exceptions then bring an otherwise excluded claim back within coverage. Oddly, in the title insurance policy issued by the respondent, Stewart Title Guaranty Co.'s ("Stewart Title"), both the exclusion and "exception from coverage" clauses set out risks that fell outside the scope of the coverage grant. It was one such "exception from coverage" clause that was at issue in Nodel, specifically the interpretation of the words "are paid to". Read More
Insurance

Failure To Take Assignment From Insured Could Bar Broker’s Claim

A recent Ontario case illustrates the complex nature of insurance law. It also demonstrates what can happen when a party to a coverage claim fails to have the proper advice on coverage issues. In this case, an automobile insurer denied a coverage claim because the broker listed the wrong vehicle on the application for insurance. The broker indemnified the insured, and then sought indemnity from the insurer. A judge then granted summary judgment in favour of the insurer, finding the broker had no claim in its own name, and notably it had not taken an assignment of the insured's right to indemnity from the insurer. In January, the Ontario Court of Appeal (OCA) ordered the claim to proceed to trial. As explained below, the broker would be in a much stronger position if it had taken an assignment from the insured. Read More
Insurance

Court Of Appeal Dramatically Restricts Application Of “Delay” Exclusion In E&O Policy

In Hollowcore v. Visocchi, the Ontario Court of Appeal (ONCA) recently limited the application of a "delay" exclusion where damages awarded against the insured arose from two concurrent causes, notwithstanding that one of these causes was excluded from coverage. The damages in Hollowcore were caused by negligence and delay by the insured. The policy covered damages arising out of negligence claims, but excluded claims arising out of the insureds' failure to complete engineering drawings on time. Read More
Insurance

Supreme Court Limits “Cost Of Making Good” Exclusion, But Leaves Residual Uncertainty

The Supreme Court of Canada has released its much-anticipated decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. The case is notable in three ways. First, it continues a trend of the Court bringing real commercial sense to the interpretation of insurance policies. Second, it restricts the scope of the faulty workmanship exclusion to the actual cost of redoing the work. Third, it unfortunately provides unnecessary commentary that may result in some ongoing uncertainty, particularly in the area of faulty design. Read More
Insurance

Carneiro v. Durham: The Independent Rights Of An Additional Insured

In Carneiro v. Durham (Regional Municipality) 1, the Ontario Court of Appeal recently had the opportunity to consider the bundle of rights afforded to a municipality, named as an additional under a contractor's liability policy. The Court held that the municipality had independent rights under the policy, including a right to a defence, regardless of the defence provided to the named insured. Read More