Table of Contents
Civil Decisions
202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304
Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7
Render v. ThyssenKrupp Elevator (Canada) Limited , 2022 ONCA 310
Keywords: Employment Law, Dismissal for Cause, Punitive Damages, Civil Procedure, Costs, Litigation Misconduct, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), McKinley v. BC Tel, 2001 SCC 38, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Carscallen v. FRI Corp., 2005 C.L.L.C. 210-038 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McCallum v. Saputo, 2021 MBCA 62, Plester v. Polyone Canada Inc., 2011 ONSC 6068, Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, Ojo v. Crystal Claire Cosmetics Inc., 2021 ONSC 1428, Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, Tadayon v. Mohtashami, 2015 ONCA 777, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Hobbs v. Hobbs, 2008 ONCA 598, Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, Georg v. Hassanali (1989), 18 R.F.L. (3d) 225 (Ont. S.C.), Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.)
Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula , 2022 ONCA 315
Keywords: Environmental Law, Provincial Offences, Statutory Interpretation, Evidence, Expert Witnesses, Qualifications, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 2, 9, 10 and 17, Fisheries Act, R.S.C. 1985, c. F-14, Endangered Species Act, 2007, S.O. 2007, c. 6, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. High, 2003 BCSC 1723, R. v. Rhodes, 2007 BCPC 1, R. v. Live Nation, 2016 ONCJ 223, R. v. Abbey, 2017 ONCA 640, R. v. Mills, 2019 ONCA 940, R. v. Natsis, 2018 ONCA 425, Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Tang, 2015 ONCA 470, leave to appeal refused, [2015] S.C.C.A. No. 486, R. v. McManus, 2017 ONCA 188, R. v. T.A., 2015 ONCJ 624, R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514, R. v. Tesfai, 2015 ONSC 7792, Moore v. Getahun, 2015 ONCA 55, leave to appeal to refused, [2015] S.C.C.A. No. 119
Mukwa v. Farm Credit of Canada , 2022 ONCA 320
Keywords: Civil Procedure, Abuse of Process, Vexatious Litigants, Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, Rules of Civil Procedure, Rules 2.1.01(1), 2.1.01(3) and 15.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Khan v. Krylov & Company LLP, 2017 ONCA 625, Rallis v. Myers, 2019 ONCA 437, Khan v. Law Society of Ontario,2020 ONCA 320, Mukwa v. Farm Credit of Canada,2021 ONSC 1632, Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, National Bank of Canada v. Guibord, 2021 ONSC 6549, Guibord v. National Bank, 2021 ONSC 5408, Trinity Western University v. Law Society of Upper Canada,2018 SCC 33, Groia v. Law Society of Upper Canada, 2018 SCC 27, R. v. Cunningham, 2010 SCC 10, R. v. Anderson, 2014 SCC 41
Waxman v. Waxman , 2022 ONCA 311
Keywords: Civil Procedure, Settlements, Duty to Disclose, Summary Judgment, Permanent Stays, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Housen v. Nikolaisen, 2002 SCC 33, Carotiv. Vuletic, 2021 ONSC 2778, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66
CIVIL DECISIONS
202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304
[Feldman, Pepall and Favreau JJ.A.]
COUNSEL:
A. Evangelista, J. Kent and N. Dehnashi, for the appellant
D. Muise, for the respondents
Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7
FACTS:
The respondents operate seven daycare centres called Helping Hands outside the Toronto area. Their business at the seven locations was insured through a Business Choice Policy from the appellant Northbridge from February 2020 to February 2021. The policy included a special endorsement to cover business losses arising from a pandemic. The business loss portion of the original insuring agreement is contained in Part II of the policy, and originally did not include coverage in the case of a pandemic. That coverage was added by a special endorsement titled the A.D.C.O. Program Endorsement, which amended the Part I – Property Insured, Part II – Business Income, and Part III – Commercial General Liability coverages.
The respondents made a claim in relation to COVID-19 closures from March 17, 2020 to June 22, 2020. The application judge concluded that the limit of liability clause provides coverage of $50,000 on a per location basis, for a total exposure of $350,000.
The appellants argued that the proper interpretation of the policy translates to $50,000 as a global total for the seven locations.
ISSUES:
(1) Did the application judge err in her interpretation of the limit of liability clause contained in the “Outbreak & Negative Publicity” coverage extension for business losses suffered during a pandemic?
HOLDING:
Appeal dismissed.
REASONING:
(1) No.
The standard of review was correctness, on the basis that the insurance policy was a standard form policy. The insurance policy under review was clearly a bespoke policy that included and excluded defined coverages for specified amounts in respect of each of the respondents’ seven business locations. However, the clauses within the policy were standard, unmodified clauses that were also offered to similar businesses. In that way, they were in a standard form.
The court outlined six reasons for its decision:
(a) The internal wording of the limit of liability clause was unambiguous. While the application judge was incorrect in finding that the limit of liability clause was ambiguous, her overall interpretation of coverage found in the limit of liability clause was correct. The court stated that looking only at the words of the limit of liability clause itself, the maximum amount is stated to be “or as otherwise indicated on the ‘schedule’”. As in this policy there are seven separate schedules, one for each scheduled risk location, therefore the reference to “the ‘schedule’” can only mean to each individual schedule for each risk location. The only reference in the schedules to a limit of liability for business losses is the “Actual Loss Sustained”, which applies to the business losses not referred to in the extended endorsement.
(b) The respondent insured’s interpretation was reinforced by the language of the indemnity agreement for pandemic loss coverage in the A.D.C.O. Program Endorsement. In accordance with the interpretive principles from the governing case law, as both the indemnity agreement and the limit of liability clause were subclauses of the “Outbreak & Negative Publicity” extension of coverage, they were to be read together (exclusions should be read in light of their initial grant of coverage). The indemnity agreement provided coverage for loss of business income as a result of a pandemic outbreak “at your ‘scheduled risk location’”. Being in the singular rather than the plural, it was referring to each single scheduled risk location (i.e., each of the seven daycare centres).
(c) In regards to the appellant’s argument that the court was reading in the word each, the court stated that the singular reference to “scheduled risk location” indicated that the indemnity was for losses at the location listed on the schedule. In this case, there were seven separate schedules, one for each risk location. It was not necessary to read in the word “each” because the use of the singular performs the same function.
(d) The indemnity and limit of liability provisions were consistent with the structure of the entire policy, which insured each location for its losses, as defined precisely in the separate schedules.
(e) The appellant had not referenced any provisions of the insurance agreement or the applicable endorsements that provided coverage based on losses or damage at a scheduled risk location where the limit of liability for such coverage applied to all locations on an aggregate basis, rather than on a per location basis.
(f) The premium the respondents paid for the extended coverage was based on and divided among the seven risk locations in different amounts.
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