Insurer Cannot Rely on Total Pollution Exclusion to Refuse Duty to Defend in Negligence Claim

  • April 06, 2022
  • Beryl Meng

In Hemlow Estate v. Co-operators General Insurance Co, 2021 ONCA 908, the Ontario Court of Appeal held that the insurer had a duty to defend a claim relating to the negligence of the insured, which resulted in the insured’s own death and property damage at the location where he was working. The court affirmed that the Pollution Exclusion did not apply, as the claim was based in negligence and breach of contract, and not from the escape of a pollutant. 


John Hemlow, the insured, was killed in a workplace accident. Hemlow was a contractor, who during the course of his work, opened a valve to a pipe releasing pressurized ammonia that caused extensive property damage. As a result, the property owners brought an action in negligence, nuisance and breach of contract against the Estate of Hemlow.

Hemlow had a Commercial General Liability (CGL) policy with Co-Operators. The policy contained a Total Pollution Exclusion, which excluded coverage for damage caused by “pollutants”. In a different part of the policy, not connected to the Total Pollution Exclusion, the word “Pollutants” was defined as “any solid, liquid, gaseous or thermal irritant or contaminant including smoke, odours, vapour, soot, fumes, acids, alkalis, chemicals and waste.”

The insurer relied on the Total Pollution Exclusion in refusing to defend the estate. The estate brought an application seeking a declaration the insurer had a duty to defend. The application judge granted the application and held that Co-operators had a duty to defend. The judge found the word “pollution” was ambiguous in the policy and where there is ambiguity in the contract, the court’s interpretation will be guided by the reasonable expectation of the parties. The judge held the reasonable expectation of the insured was that the exclusion applied solely to the pollution of the natural environment. Therefore, the exclusion did not apply.