An operator of an elementary school (“Palliser”) was successful in obtaining an order that its insurer (“Aviva”) was obligated to defend it with respect to claims brought by neighbours of Palliser which alleged that coal dust transported by wind from Palliser’s property was damaging their homes. The court held that the Pollution Exclusion in the policy did not apply to these claims as blowing coal dust failed the common sense test for “pollution” which was intended or expected to be excluded from coverage.

23. November 2004 0
Palliser Regional School Division No. 26 v. Aviva Scottish & York Insurance Co., [2004] A.J. No. 1356, Alberta Court of Queen’s Bench

This was the trial of a plaintiff/insured’s claim against his automobile insurer solely based on an allegation of bad faith. The issue was whether the insurer was liable to the insured for punitive, intangible, and aggravated damages where the insurer had paid out all coverages under the policy. The Court held that there was a breach of the duty of good faith, and regardless of whether the insurance claims were ultimately satisfied the plaintiff’s damages were compensable. The Court refused to award punitive damages, but awarded nominal damages for intangible and aggravated losses. The Court rejected the argument of the insurer, based on previous case law, that a plaintiff must have a successful action for some specific coverage under the policy before an action can succeed for bad faith.

22. November 2004 0
Baudisch v. Co-operators General Insurance Co., [2004] A.J. No. 1456, Alberta Provincial Court

An insured under a homeowner’s policy (“Revivo”) was successful in obtaining an order that his insurer (“State Farm”) was obligated to defend an action against Revivo arising from a fire started while he was working on a “parts car” while completing a kit car. The court held that the exclusion clause in the policy relating to ownership, use or operation of a motor vehicle was inapplicable where neither the parts car nor the kit car was useable or operable as an automobile.

18. November 2004 0
Meadowview Heights Ltd. v. Revivo, [2004] O.J. No. 4742, Ontario Superior Court of Justice

A family was insured through a homeowners policy. The son sexually assaulted two children who were being babysat by the parents. An action was commenced against the son for sexually assaulting the children and against the parents for negligently supervising the children, and failing to warn the children’s parents of their son’s propensity to molest children. The son was not entitled to insurance coverage pursuant to the homeowner’s policy because it contained an exclusion for actual or alleged sexual molestation. The parents were not entitled to coverage under the policy because the claims against them arose from an event for which coverage was expressly excluded.

09. November 2004 0
D.C. v. Royal & Sun Alliance Insurance Co. of Canada, [2004] O.J. No. 4587, Ontario Superior Court of Justice

When an Insured no longer has his or her policy of insurance, the court may rely upon secondary evidence to establish the existence of a policy. In such circumstances, the court may infer that the terms and conditions of the policy of insurance are similar to the terms and conditions in other policies written by the insurance company. Allegations of vicarious liability against an employer for sexual assaults perpetrated by an employee prior to the initiation of an insurance contract, will not be covered by an occurrence-based policy. This is true even if the full extent of the damages suffered by the victim are not discovered until the policy is in force.

09. November 2004 0
Synod of the Diocese of Edmonton v. Lombard General Insurance Co. of Canada, [2004] A.J. No. 1287, Alberta Court of Queen’s Bench

Where the plaintiff, whose husband was killed in a motor vehicle accident, subsequently gave birth to the couple’s son, the infant was deemed to have been born at the time of his father’s death. He was therefore a dependent in accordance with section 2(6) of the Statutory Benefits Schedule and entitled to the Death Benefit under the policy in force at the time.

29. October 2004 0
Willard v. Zurich Insurance Company, [2004] O.J. No. 4388, Ontario Superior Court of Justice

This was the appeal of an award under a disability insurance policy. At issue was a disability policy covering “bodily injury caused by an accident”, and whether the trial judge made an error by finding that the Plaintiff’s arterial dissection and stroke were caused by trauma when he turned his neck while playing basketball. The majority of the Court of Appeal upheld the trial decision on the basis that ordinary acts of living, such as playing basketball in this case, can constitute an accident. The majority declined to find that there was no evidence upon which the trial judge could hold for the Plaintiff on the issue of causation. Borins J.A. dissented, favouring the ordinary interpretation of “accidental”, and finding that the judge erred in his understanding of the expert medical evidence concerning the length of time before arterial dissection would normally result in neurologic symptoms. Mr. Justice Borins held that the trial judge made a palpable and overriding error in finding for the Plaintiff on causation.

26. October 2004 0
Guillet v. American Home Assurance Co., [2004] O.J. No. 4330, Ontario Court of Appeal