Ontario Court Of Appeal Summaries (January 7 – 11, 2019)

Good evening.

There were only three substantive civil decisions released by the Court of Appeal this week.

In TD General Insurance Company v Intact Insurance Company, the Court examined two insurance policies that had overlapping coverage. The Court reiterated the rule from Family Insurance Corp v Lombard Canada Ltd that where insurers have not intended to limit their obligations to contribute to a loss or claim or where those intentions cannot be reconciled, the insurers must share the burden equally under a coordinate obligation to make good the loss or claim.

In Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., the Court set aside summary judgment on a guarantee, finding that the motion judge should not have granted judgment simply because the appellants did not clearly articulate a defence of "no consideration" in their pleadings. A generous reading of the pleading disclosed the "no consideration" defence. On the evidentiary record, the guarantee at issue was signed days after the advance had already been made. The defence of "no consideration" therefore raised a genuine issue for trial.

In Lee v. Richcraft Homes Ltd., 2019, a panel of the Court extended the time to seek leave to appeal from a Divisional Court order (upholding a Master's order) after a nine-month delay in bringing the motion. This, after two of their colleagues had denied motions for extension of time. The panel felt that the appeal may have merit. The Master apparently decided the pleadings motion at issue under Rule 21, which only a judge has jurisdiction to hear. Moreover, the Master had denied leave to amend, but should not have done so.

Wishing everyone a pleasant weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

CIVIL DECISIONS

TD General Insurance Company v. Intact Insurance Company, 2019 ONCA 5

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

Marc D. Isaacs and Arie Odinocki, for the appellant

Gary J. Marcuccio, for the respondent

Keywords: Contracts, Insurance, Interpretation, Homeowners' Insurance Policy, Primary Coverage, Excess Coverage, Other Insurance Clauses, "Closeness to the Risk" Approach, "Minnesota" Approach, Family Insurance Corp v Lombard Canada Ltd, 2002 SCC 48, Lawyers' Professional Indemnity Company v Lloyd's Underwriters, 2017 ONCA 858

Facts:

A boat's passenger claimed she was injured when the boat struck the shoreline. The passenger sued the boat's driver and owner. The driver was covered by two policies of insurance. The boat's owner held a TD insurance policy that covered the driver, who had the owner's permission to drive the boat. The driver was covered by his Intact homeowner's policy.

The two policies had identical "other insurance clauses" that provided that where other insurance applied to a loss or claim, the policies would be considered excess insurance. TD brought an application seeking an order that both insurance companies were on equal footing and had to share equally in the defence and indemnity of the driver stemming from the passenger's claim.

The application judge noted that the governing authority was the Supreme Court of Canada's decision in Family Insurance Corp v Lombard Canada Ltd, 2002 SCC 48 ("Family Insurance"). The application judge also noted that in Family Insurance the Court held that the insurance policies themselves must be construed to determine the liability of each insurer, and the Court should not refer to surrounding circumstances or look outside the policies.

The application judge observed that the TD policy insured liability arising from the specific boat involved in the accident (through a personal liability extension), while the Intact policy insured liability arising from the use of any type of watercraft. The application judge reasoned that the personal liability extension demonstrated TD's intention to cover a different type of risk than that covered by the basic watercraft coverage in each policy.

The application judge found that it was clear "that TD intended to provide the primary insurance coverage for the watercraft." Since the TD policy provided the "primary insurance" and since Intact conceded that it provided excess insurance, TD's application was dismissed.

Issues:

(1) Did the application judge err in...