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

This is an appeal by the insurer of a motions court decision that it had a duty to defend an insured against a claim for the intentional tort of trespass to land. The insured, a schoolboy, allegedly started a fire on school property. On a motion, the Public Trustee of Manitoba, as Litigation Guardian of the student, brought a successful application to compel Co-operators to defend. Co-operators appealed on the basis of wording in the homeowner’s insurance policy an issue which excluded coverage for property damage caused intentionally. The Court of Appeal upheld the decision of the motions court, holding that even though the fire was alleged to have been started intentionally and the damages to the school may have been unforeseen, the claims as pleaded raised a possibility that a court could find that the act therefore was a negligent one.

15. October 2004 0
R.D.F. (Litigation Guardian of) v. Co-operators General Insurance Co., [2004] M.J. No. 382, Manitoba Court of Appeal

This was the appeal and cross-appeal of a summary judgment in which the lower court held that the insurer had no duty to defend Innopex in a U.S. intellectual property action. At issue was an action commenced against the insured and its employee by Gucci for trademark infringement and other infringement claims. The Court of Appeal held that there was a duty to defend, and the lower court made an improper inquiry into the evidence in the underlying infringement action.

15. October 2004 0
Halifax Insurance Co. of Canada v. Innopex Ltd., [2004] O.J. No. 4178, Ontario Court of Appeal