CGL provider required to defend claims relating to publication of confidential information notwithstanding data exclusion clauses
Insurance law – Commercial general liability insurance – Duty to defend – Exclusions – Interpretation of policy – Class actions
Laridae Communications Inc. v. Co-operators General Insurance Co., [2020] O.J. No. 2124, 2020 ONSC 2198, Ontario Superior Court of Justice, May 8, 2020, A. Pollak J.
An unauthorized party accessed documents from a secured section of the website of Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and published certain documents on the internet. These documents contained the personal information of 285 people who had been subjects of FCS’s investigations.
A class action proceeding was brought on behalf of these people. FCS brought third party proceedings against Laridae, a company it engaged to provide communication strategies, which included reviewing and refreshing FCS’s website to ensure it was compliant with privacy and other legislative requirements.
Laridae obtained CGL coverage from the insurer and FCS was named as an additional insured. Both insureds requested a defence from the insurer in the class proceedings. The insurer denied a duty to defend. The insureds brought an application seeking a declaration that the insurer had a duty to defend them.
The insurer admitted there was coverage but relied on the data exclusion provisions to deny coverage and a duty to defend.
The court noted that data exclusion clauses have not yet been litigated. Given this, and the applicable law, the court was not satisfied the insurer had discharged its onus of establishing that the substance of the claims clearly falls within the data exclusion provisions.
This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Cameron B. Elder at celder@harpergrey.com.
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