Judge's comment that either waiver or estoppel applied did not reflect failure to decide

Insurance - Actions on Policies - Commencement of Proceedings

Insured was involved in dirt bike accident. Insured was sued in negligence. Without securing non-waiver agreement or issuing reservation letter, insurer appointed lawyer to defend claim against insured, pleadings were exchanged, and other steps were taken. Plaintiff's counsel asked insured's lawyer whether there was any issue about coverage. This provoked insurer to inquire further into coverage issue. Insurer brought unsuccessful application seeking declarations that insured did not have coverage, nor was insurer obliged to defend him. Application judge held that insurer had either waived its right to deny coverage and refuse to defend, or was estopped from doing so. Insurer appealed. Appeal dismissed. Application judge's comment that either waiver or estoppel would apply did not reflect failure to decide whether either doctrine applied. Insurer had not established that application judge made palpable and overriding error in finding detrimental reliance. Application judge's reasons for decision were not inadequate. Application judge's finding that insurer was estopped from relying on certain exemptions undercut insurer's ability to invoke these exemptions, whether to dispute its duty to defend or to dispute indemnification.

The Commonwell Mutual Insurance Group v. Campbell (2019), 2019 CarswellOnt 13577, 2019 ONCA 668, David M. Paciocco J.A., Harvison Young J.A., and B. Zarnett J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 16459, 2018 ONSC 5899, Calum MacLeod J. (Ont. S.C.J.).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

More civil liability for privacy complaints in Ontario after landmark case

Privacy Commissioner could overhaul artificial intelligence laws amid mounting privacy concerns

Cynthia Koo to research cybermisogyny for women's rights org

Windsor Law expands class action clinic to meet growing demand

Human rights monitoring falls in the law society's mandate, says founding member of group

Condo board capacity still unsettled after decision on notice and nullity

Most Read Articles

Human rights monitoring falls in the law society's mandate, says founding member of group

Juror's alleged letter praising Crown's appearance does not amount to bias, appeal judges say

Condo board capacity still unsettled after decision on notice and nullity

CBA president Vivene Salmon honoured as 2020 Woman of Influence