Case Summary: Flawed Duty to Defend Application Dismissed
A duty to defend application based on an alleged implied contract was dismissed because one party to the contract was not named as an application respondent.
Insurance law – Commercial general liability insurance – Duty to defend – Practice – Parties to an action
2748355 Canada Inc. Aviva Insurance Co. of Canada,  O.J. No. 6741, 2021 ONSC 7925, Ontario Superior Court of Justice, December 1, 2021, S. Woodley J.
A property manager applied for a declaration that the insurer of a landscaper, who had contracted to provide services at the relevant property, had a duty to defend and indemnify the property manager in the underling action involving a trip and fall.
There were two relevant contract periods between the property manager and the landscaper: June 1, 2010 to June 1, 2011; and November 1, 2011 to November 1, 2012. The trip and fall occurred on August 21, 2011. The property manager argued there was an implied contract between the property manager and the landscaper at the time of the fall since there was an ongoing contractual relationship and, as part of the application, sought a declaration that the terms required the landscaper to have obtained commercial insurance for the property manager.
Notably, the landscaper was not named as a party to the application. As such, the court could not make a finding that an implied contract existed since it would have required a ruling against the landscaper’s interest made without the landscaper being afforded an opportunity to present their position. The application was dismissed without prejudice to the property manager’s right to bring the application again.
This case was digested by Michael J. Robinson, 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 Michael J. Robinson at email@example.com.