Superior Court says insurers had duty to defend claim concerning hunting trip accident

In Trajcevski v. Aviva et al., 2026 ONSC 3579, the plaintiff and others commenced an action against the applicant. The statement of claim alleged a hunting trip accident at a property at Adams Road, Town of Mattawa, Ontario, on or about the evening of Sept. 10, 2022. 

According to the claim:

• The plaintiff and the applicant, who were friends, went hunting 
• While they were setting up their tents, the applicant suddenly and negligently discharged his firearm without warning 
• The bullet struck and pierced the plaintiff’s right foot, and amputated three of his toes 

A homeowner policy issued by CAA Insurance Company insured the applicant. CAA accepted coverage and provided a defence via its appointed counsel. 

The respondents – Aviva Insurance Company of Canada, Sovereign General Insurance Company, and Trisura Guarantee Insurance Company – issued a subscription policy to Great North Wildlife Affiliates (GNWA). 

An endorsement in the GNWA policy insured GNWA’s club members for losses caused by bodily injury relating to certain outdoor activities, including hunting. The applicant, a member of an affiliate club, unsuccessfully sought coverage under the endorsement. 

The applicant asserted that the GNWA policy was a primary policy that required the respondent insurers to extend a duty to defend since the claim’s allegations constituted hunting. 

The respondent insurers contended that the GNWA policy was an excess policy that did not cover the applicant because the claim’s allegations did not amount to hunting. If there was a duty to defend, the insurers alleged conflict on the part of the applicant’s counsel since: 

• CAA appointed him 
• He had an interest in ensuring that the respondent insurers defend, indemnify, and thus reduce CAA’s exposure 
• He would not fairly protect the respondent insurers’ interests 

The parties agreed that the court should defer the third issue until it determined the first two issues. 

Duty to defend triggered

The Ontario Superior Court of Justice ruled that the respondent insurers owed the applicant a duty to defend the claim. The court saw a “mere possibility” of coverage for the applicant relating to the plaintiff’s allegations, which sufficiently triggered the duty to defend. 

Based on the pleading, the court found that: 

• The applicant left home, travelled a significant distance, “went hunting” in Matawa, and had a firearm for “hunting,” which discharged
• The applicant and plaintiff were setting up camp in the woods to advance the process of seeking wild game 

Regarding the ambiguity in the interpretation of hunting, the court decided to use the interpretation most favourable to the applicant. The court pointed out that the respondent insurers failed to suggest a narrower definition. 

The court held that the endorsement’s commercial purpose included insuring members for a firearm’s unexpected discharge that resulted in bodily harm while pursuing hunting activity in the broadest sense. 

Primary and excess insurance

The Superior Court ruled that the CAA policy and the GWNA policy and its endorsement provided primary insurance that sought to serve as an excess insurance policy where “other insurance” would cover the loss. 

The court found the equitable contribution doctrine applicable because the CAA and GWNA policies were irreconcilable. 

Lastly, the court noted that a future factual trier could answer the question of whether there was a duty to indemnify. 

If there was indeed such a duty, the parties agreed that the respondent insurers would contribute 50 percent of the applicant’s defence costs, beginning July 13, 2023, when they first received notice of the claim.

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