COURT OF APPEAL FOR ONTARIO

CITATION: Hartley v. Security National Insurance Company,
    2017 ONCA 715

DATE: 20170914

DOCKET: C63516

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Glen C. Hartley
and Theresa M. Hartley

Plaintiffs (
Respondent
)

and

Security National Insurance Company

Defendant (Appellant)

William G. Woodward, for the appellant

Richard Campbell, for the respondent
[1]

Heard: June 21, 2017

On appeal from the order of Justice Gerald E. Taylor of
    the Superior Court of Justice, dated March 14, 2016, with reasons reported at
    2016 ONSC 1812.

Paciocco J.A.
:

A.

overview

[1]

Glen Hartley, the respondent in this appeal, and his wife, Theresa
    Hartley, were injured in a traffic accident while touring on a motorcycle in
    the State of Minnesota. Mr. Hartleys injuries were particularly serious. The
    accident occurred when the Hartleys motorcycle was struck by a State of
    Minnesota- owned truck, operated by a state employee. The Hartleys retained Minnesota
    counsel and sued the State of Minnesota for damages.

[2]

Even though Mr. Hartleys injuries warranted damages in excess of US$500,000
    dollars, he obtained a settlement of only US$500,000. This was the maximum
    payable by Minnesota to a tort claimant, in the circumstances. The settlement
    was inclusive of legal fees, including a 22 per cent contingency fee, and
    disbursements. After legal costs were accounted for, Mr. Hartley was left with
    approximately CAD$386,500.

[3]

Mr. Hartley looked to his Canadian insurance company, Security National
    Insurance Company, to pay him the difference between the damages he received of
    approximately CAD$386,500, and the CAD$1,000,000 underinsured motorist coverage
    ceiling provided for in an endorsement to his motor vehicle insurance policy.
    Specifically, he relied on the optional statutory Family Protection Coverage Endorsement,
    OPCF 44R, pursuant to a policy issued to Mr. Hartley by Security National.

[4]

Security National refused to pay. It said that Minnesota was not an
    inadequately insured motorist within the meaning of OPCF 44R, and that, even
    if there were coverage, the policy would not include legal expenses incurred in
    the Minnesota action.

[5]

Mr. Hartley sued. The parties agreed to have two key issues  (1)
    whether Minnesota was an inadequately insured motorist within the meaning of
    OPCF 44R, and (2) whether Mr. Hartley could recover his legal expenses
    resolved before a motion judge under r. 21.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. Mr. Hartley won on both points. The
    motion judge held that Minnesota was underinsured or, in the words of OPCF
    44R, an inadequately insured motorist. He also held that Mr. Hartley could claim
    the legal costs he paid (U.S. fees) as special damages against Security
    National. Security National has now appealed those rulings to this court.

[6]

The first issue on appeal is therefore whether the motion judge erred in
    concluding that Minnesota was an inadequately insured motorist within the
    meaning of OPCF 44R.

[7]

The second issue on appeal is whether the motion judge erred in allowing
    Mr. Hartley to claim his U.S. fees as special damages in his Ontario action
    against Security National.

[8]

I have applied a standard of correctness in considering these grounds of
    appeal, since both turn on the interpretation of a standard form insurance
    contract that is of precedential value where there is no meaningful factual
    matrix specific to the parties:
Ledcor Construction Ltd. v. Northbridge
    Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24.

[9]

Applying this standard of review, I would deny the first ground of
    appeal. Even though the motion judge did not engage in a close exercise in contract
    interpretation, I have concluded he was correct in holding that Minnesota was an
    inadequately insured motorist within the meaning of OPCF 44R.

[10]

I would, however, allow the second ground of appeal: in my view the U.S.
    fees cannot be claimed against Security National as special damages.

B.

Did the motion judge err in Concluding that Minnesota Was an
    inadequately insured motorist?

[11]

In simple terms, OPCF 44R provides insurance against underinsurance. It
    is meant to put an eligible claimant in the same position they would have been
    in had a liable underinsured motorist carried automobile insurance in the same
    amount as the OPCF 44R policy. In Mr. Hartleys case, the OPCF 44R endorsement
    insured him to a maximum recovery of CDN$1,000,000.

[12]

Section 3 of OPCF 44 R describes what is covered:

3.       In consideration of a premium of $_____ or as stated
    on the Certificate of Automobile Insurance to which the change form is
    attached, the insurer shall indemnify an eligible claimant for the amount that
    he or she is legally entitled to recover from an inadequately insured motorist
    as compensatory damages in respect of bodily injury to or death of an insured
    person arising directly or indirectly from the use or operation of an automobile.

[13]

In order to prevent double recovery, other provisions of OPCF 44R reduce
    what the insurer must pay by any amounts that are available to the claimant
    from or through the inadequately insured motorist.

[14]

In this case, Mr. Hartleys attempt to obtain compensation from
    Minnesota for the entire damages he sustained was frustrated by the
Tort
    Claims Act
, Minn. Stat.
§
3.736. Subdivision
    9 of this statute does provide that Minnesota will pay compensation for
    property loss and personal injury caused by a state employee acting in the
    course of his or her employment. But other subdivisions cap the amount of
    damages that can be collected.

[15]

Specifically, there is a $500,000 cap under subdivision 4(c) on the
    amount that can be claimed by an individual and a $1,500,000 cap under subdivision
    4(g) on the total that is payable for any number of claims arising out of a
    single occurrence.

[16]

The Minnesota
Torts Claims Act
goes on to provide in
    subdivision 8 that state agencies may procure insurance against liability  for
    damages resulting from torts and that procurement of insurance will be a
    waiver of the limits of governmental liability  only to the extent that valid
    and collectible insurance  exceeds those limits. Minnesota did not carry
    additional liability insurance that would apply to Mr. Hartleys claim.

[17]

Faced with these provisions, which are not uncommon in the United
    States, Mr. Hartley entered into a settlement agreement with Minnesota. The
    agreement provides:

The parties to this Settlement Agreement agree and acknowledge
    that the amount paid to Plaintiff Glen Hartley and his counsel, (i.e., [US]$500,000.00)
    is the maximum amount Glen Hartley can recover against State Defendants
    pursuant to Minnesota law, including Minn. Stat. §3.736.

[18]

Mr. Hartley therefore contends that the motion judge did not err in
    holding that Minnesota was underinsured within the meaning of OPCF 44R since Mr.
    Hartley was legally entitled to receive an amount under his policy above the
    amount available to him from Minnesota.

[19]

Security National has raised three bases for refusing Mr. Hartleys
    claim for the shortfall left after his settlement agreement.

[20]

First, it argues that Minnesota is not underinsured, but self-insured,
    and therefore underinsured coverage does not apply.

[21]

Second, it urges that the shortfall in recovery is not the result of
    underinsurance, but rather the result of a statutory immunity.

[22]

Finally, Security National contends that even if a self-insured state
    enjoying statutory immunity can be an inadequately insured motorist, it is
    not accurate to say that Minnesota is underinsured. Security National urges
    that Minnesota offers single occurrence coverage up to US$1,500,000 that exceeds
    the CAD$1,000,000 coverage ceiling payable under OPCF 44R. Security National thus
    maintains that its maximum liability is zero under the terms of OPCF 44R.

[23]

I would reject all of these objections and hold that the motion judge
    was correct in concluding that Minnesota is an inadequately insured motorist.

(a)

Does Minnesotas self-insurance defeat the claim?

[24]

Security Nationals argument that there is no coverage because Minnesota
    is self-insured rests on the contention that self-insurance is conceptually
    very different from being underinsured. This is because self-insurance lacks
    the risk transfer by which traditional insurance is defined.

[25]

This argument is intuitively unappealing. OPCF 44R clearly contemplates
    coverage if a claimant is injured by someone who has no motor vehicle insurance
    at all:
Gostick (Litigation Guardian of) v. Squance Estate
, 2007 ONCA
    674, 229 O.A.C. 373, at paras. 2, 14-16. One would think that a person carrying
    no insurance is self-insured since they have not transferred their risk.

[26]

Approaching the matter more technically, the problem with Security
    Nationals argument is that it is misdirected. The material question is not
    whether self-insurance comfortably fits the usual concept of being insured.
    It is whether, as a matter of contractual interpretation, Minnesota is caught
    by the definition of inadequately insured motorist in s. 1.1.5(a) of OPCF 44R:

inadequately insured motorist means

(a) the identified owner or identified driver of an
    automobile for which the total motor vehicle liability insurance or bonds, cash
    deposits or other
financial guarantees as required by law
    in lieu of insurance
, obtained by the owner or driver is less than the
    limit of family protection coverage  [Emphasis added.]

[27]

OPCF 44R is an endorsement to a standard form insurance contract. The
    principles of interpretation that apply to such contracts are settled, and were
    recently reiterated in
Sabean v. Portage La Prairie Mutual Insurance Co.
,
    2017 SCC 7, 406 D.L.R. (4th) 632.

[28]

At the first step, language that is not ambiguous should be given its
    ordinary meaning, as [it] would be understood by the average person applying
    for insurance, not as [it] might be perceived by persons versed in the niceties
    of insurance law:
Sabean
, at para. 13. If the language is ambiguous,
    general rules of construction can be employed to resolve the ambiguity. If
    these general rules fail, courts will construe the contract
contra
    proferentem
, and interpret coverage provisions broadly and exclusion
    clauses narrowly:
Sabean
, at para. 12.

[29]

As I read his reasons, the motion judge rejected Security Nationals
    self-insurance argument by approaching the matter as if the definition in s. 1.1.5(a)
    were ambiguous. In addressing the argument, he immediately went to the purpose
    of the coverage identified in
Chomos v. Economical Mutual Insurance Co.
(2002),
    61 O.R. (3d) 28 (C.A.), at para. 20, namely to provide financial relief for
    insureds and their families from the hardships and inequities of any shortfalls
    in insurance compensation. He reasoned that, if accepted, Security Nationals
    argument would defeat that purpose.

[30]

In fact, it was unnecessary for the motion judge to take this route, as
    the material language is clear. An average person applying for insurance would
    understand that the ordinary meaning of the phrase financial guarantees as
    required by law in lieu of insurance would include a legislated obligation by
    an uninsured state to indemnify its employees by paying compensation for
    tortious damage caused by those employees. And this is what the Minnesota
Tort
    Claims Act
expressly does. It is a legislated scheme  thereby required
    by law  subdivision 9 of which guarantees that Minnesota will indemnify its
    employees for damages in connection with civil claims, which would include
    those arising from automobile accidents.

[31]

Given the definition of inadequately insured motorist, the fact that
    Minnesota chooses to self-insure is not inconsistent with it being an
    inadequately insured motorist.

(b)

Does Minnesotas statutory immunity defeat the claim?

[32]

In oral argument, Security National contended that Minnesota is not
    inadequately insured within the meaning of the policy endorsement because any
    shortfall in damage payments is the result of a statutory immunity rather than
    underinsurance. In my view, this is not an answer to the claim either. The
Tort
    Claims Act
does not remove Minnesotas liability but rather limits the
    damages that can be collected from Minnesota. Instead of assisting Security
    National, the cap on damages produces a shortfall between what Mr. Hartley is
    legally entitled to recover in damages, and what he is entitled to  receive,
    thereby triggering a right of indemnity under OPCF 44R.

[33]

The argument that Security National is now attempting was
    rejected by this court in
Craig v. Allstate Insurance Co. of Canada
(2002), 59 O.R. (3d) 590 (C.A.), leave to appeal refused, [2002] S.C.C.A. No.
    309. There, it was settled that a tortfeasor may be an inadequately insured
    motorist where there is a shortfall in damages, even where that shortfall is
    the result of a statutory cap under state tort claims immunity legislation.

[34]

Craig
involved a Florida statute that, like Minnesotas
Tort
    Claims Act
, imposed limits on the maximum sum recoverable from
    State-employed tortfeasors. The maximum amount recoverable, US$100,000, was not
    nearly enough to cover the damages sustained by a young boy who was struck by a
    State bus operated by a State employee while the boy was riding his tricycle. To
    recover the shortfall, the Craigs sued pursuant to the underinsured motorist
    coverage endorsement under their Ontario motor vehicle policy. As in this case,
    the endorsement provided for indemnification, up to the policy limit, for the
    shortfall in the amount that the insured was legally entitled to recover from
    an inadequately insured motorist.

[35]

The Craigs insurance company resisted indemnifying them by invoking the
    partial statutory immunity that the State of Florida had legislatively created.
    Justice Cronk, for this court, rejected the insurance companys argument,
    holding that the amount the insured was legally entitled to recover was
    unaffected by the statutory limit on recovery for two reasons.

[36]

First, she held that the term legally entitled to recover describes
    the amount of damages that an at-fault underinsured motorist is proved to have
    caused, rather than the amount a tortfeasor can legally be required to pay.
    Accordingly, the legal entitlement to recover that triggers the obligation to
    indemnify is not compromised by limits on the ability to recover, whether those
    limits arise from statutory bars to action or statutory or contractual immunity
    provisions:
Craig
, at para. 20, relying upon
Walker v. Allstate
    Insurance Co. of Canada
(1986), 56 O.R. (2d) 11 (H.C.J.), affirmed (1989),
    67 O.R. (2d) 733 (C.A.) (liability of tortfeasers insurance company excluded
    because of policy breach  recovery by claimant of damages under his own
    policys uninsured motorist coverage);
Johnson v. Wunderlich
(1986),
    57 O.R. (2d) 600 (C.A.) and
Chambo v. Musseau
(1993), 15 O.R. (3d) 305
    (limitation period defences available to tortfeasor  recovery by claimant of
    damages under his own policys underinsured motorist coverage);
Beausoleil
    v. Canadian General Insurance Co.
(1992), 8 O.R. (3d) 754 (C.A.), leave to
    appeal refused, [1992] S.C.C.A. No. 367 (statutory limit on state liability in
    Massachusetts  recovery by claimant of damages under his own policys underinsured
    motorist coverage);
Somersall v. Friedman
(2000), 183 D.L.R. (4th) 396
    (C.A.), affirmed, 2002 SCC 59, [2002] 3 S.C.R. 109 (settlement agreement
    compromising claim against tortfeasor voluntarily entered into  recovery by
    claimant of shortfall under his own policys underinsured motorist coverage).

[37]

Second, Cronk J.A. held that, properly characterized, the Florida
    statute did not make Florida immune from liability, nor did it bar a right of
    action, or prevent Florida from being sued and from having damages claimed and
    proved against it. What the statute did was limit the amount of compensable
    damages that Florida would be required to pay.

[38]

Not surprisingly, given its terms, this is how the Minnesota scheme has
    been interpreted in Minnesota. For example, in
Ronning v. Citizen Sec. Mut.
    Ins. Co.
, 557 N.W (2d) 363 (Minn CA 1996), the Court of Appeal for
    Minnesota rejected the argument that a claimant was only legally entitled to
    recover an amount up to the statutory ceiling. The court held, at p. 366, that
    the statute:

[A]ffords limited immunity, as it does not prohibit a party
    from bringing an action and obtaining judgment against a tortfeasor as does
    absolute immunity. Thus, the immunity defence under [the statute is] not
    absolute within the meaning of the term legally entitled to recover.

[39]

The kind of limited immunity created by Minnesotas
Torts Claim
Act
    does not, therefore, prevent the legal entitlement to recover under OPCF 44R. In
    fact, the damage limitation imposed by Minnesotas
Torts Claim Act
impedes
    the ability to recover fully against the tortfeasor, thereby triggering the
    call on the inadequately insured motorist coverage.

[40]

The fact that Minnesotas
Tort Claims Act
provides a partial statutory
    immunity, capping the amount of damages recoverable from the state, is
    therefore no answer to Mr. Hartleys claim.

(c)

Is Minnesota underinsured relative to OPCF 44Rs coverage?

[41]

Facially, Mr. Hartleys maximum coverage under his policy with Security
    National, pursuant to the OPCF 44R endorsement, is CAD$1,000,000. OPCF 44R also
    includes a formula, however, setting out the maximum coverage payable in a
    particular case under the endorsement. Security National argues that, when this
    formula is applied, the maximum payable under OPCF 44R is nothing.

[42]

The provision in question is s. 4 of OPCF 44R. In making its argument,
    Security National relies, in particular, on the words that I have underlined:

4.
The insurers maximum liability
    under this change form
, regardless of the number of eligible claimants
    or insured persons injured or killed or the number of automobiles insured under
    the Policy,
is the amount by which the limit of family
    protection coverage exceeds the total of all limits of motor vehicle liability
    insurance, or bonds, or cash deposits, or other financial guarantee as required
    by law in lieu of insurance, of the inadequately insured motorist
and of
    any other person jointly liable with that motorist.

[43]

Security National takes the position that the total of all limits
    payable by Minnesota is the US$1,500,000 single occurrence cap provided for in subdivision
    4(g) of the
Tort Claims Act
. Security National argues that since its
    maximum liability under OPCF 44R of CAD$1,000,000 does not exceed the single
    occurrence cap, its liability to Mr. Hartley is zero.

[44]

This argument is a contrivance. In identifying the limits on what
    Minnesota will cover, Security National is attempting to avoid using the US$500,000
    maximum available to Mr. Hartley under subdivision 4(c) of the Minnesota
Tort
    Claims Act
. Instead, Security National seeks to employ the maximum payable
    to multiple claimants that Mr. Hartley has no right, as an individual, to enjoy.

[45]

A similar argument was attempted in
Craig
and was flatly
    rejected. In that case, the school board that employed the tortfeasor had an
    excess insurance policy with a US$700,000 limit. The policy was not available
    to the benefit of the injured plaintiffs, the Craigs. The Craigs insurance
    company nonetheless argued that the excess insurance policy would produce a
    coverage ratio that would reduce the companys maximum liability to zero under
    an endorsement provision identical to s. 4 of OPCF 44R. With good reason, the
    motion judge took issue with the insurance companys attempt to avoid liability
    by relying on coverage not available to the Craigs. He commented that [t]he
    logic of this defeats the purpose of the  coverage, that is, to protect
    insureds from
tortfeasors
who have insurance which is inadequate to
    cover the plaintiffs damages (emphasis in original):
Craig v. Allstate
    Insurance Co. of Canada
(2001), 26 C.C.L.I. (3d) 136 (Ont. S.C.J.), at
    para. 40.

[46]

Justice Cronk agreed with the motion judges conclusion. On her reading
    of the endorsement at issue in
Craig
, the ordinary language of the provision
    was enough to defeat the insurance companys attempt to avoid liability.

[47]

The same holds true here. When the words the total of all limits of
    motor vehicle liability insurance, or bonds, or cash deposits, or other
    financial guarantee as required by law in lieu of insurance, of the
    inadequately insured motorist in s. 4 are given their ordinary meaning in
    context, it is clear that they refer to the funds available to the claimant
    bringing the claim.

[48]

Refuge from liability for the shortfall in coverage under Minnesotas
Tort
    Claims Act
cannot therefore be found in the insurers maximum liability.

(d)

Conclusion

[49]

Minnesota is an inadequately insured motorist. This is so despite the
    fact that it was self-insured, and despite the existence of partial statutory
    immunity limiting the amount of damages it must pay. The financial guarantee
    as required by law in lieu of insurance available from Minnesota is inadequate
    to cover the damages that Mr. Hartley is legally entitled to recover. The
    motion judge was therefore correct in finding Minnesota to be an inadequately
    insured motorist.

C.

Did the motion judge err in permitting Mr. Hartley to CLAIM HIS U.S.
    FEEs?

[50]

Mr. Hartley incurred U.S. fees in recovering his damage settlement from
    Minnesota, which reduced the net amount he received to approximately CAD$387,000.
    Mr. Hartley sought recovery of the U.S. fees before the motion judge, invoking
    two alternative routes.

[51]

The first route would permit Security National, when
    calculating the shortfall payable to Mr. Hartley under OPCF 44R, to deduct only
    the net amount that Mr. Hartley ultimately received from the settlement after
    deducting the amount he paid to his Minnesota lawyer. In support of this
    approach Mr. Hartley relied on
Anand v. Belanger
, 2010 ONSC 5356, 90 C.C.L.I.
    (4th) 138, a broadly analogous disability insurance case where this was done.

[52]

The second route would initially permit Security National to
    deduct the entire gross amount available through the inadequately insured
    motorist coverage in quantifying the shortfall, but then to permit Mr. Hartley
    to claim the U.S fees as special damages in the action against Security
    National. This approach was implicitly suggested in
Green v. State Farm
    Mutual Automobile Insurance Company
(2009), 75 C.C.L.I. (4th) 141

(S.C.J.),
    a case dealing with OPCF 44R.

[53]

Mr. Hartley commended both approaches as different avenues
    to the same end. Each approach prevents double recovery, and yet ensures that
    the insurer does not share the benefit of the claimants efforts in securing available
    recovery from the tortfeasor without also sharing the costs.

[54]

The motion judge accepted the
Green
approach. He
    held that Mr. Hartley was not entitled to claim the U.S. fees from the amount
    payable as compensation for a shortfall in compensatory damages under the OPCF
    44R. He was, however, entitled to claim them as special damages.

[55]

I agree with the motion judge that the U.S. fees are not recoverable as
    an insurance benefit under OPCF 44R. On the clear terms of s. 3 of the endorsement,
    what is being provided by the insurer is indemnification for the shortfall in
compensatory damages
in respect of bodily injury to or
    death of an insured person arising directly or indirectly from the use or
    operation of an automobile (emphasis added). While the U.S. fees were clearly
    incurred in securing compensatory damages, they are not themselves
    compensatory damages.

[56]

Moreover, the words of OPCF 44R setting out the quantification of the
    amount payable by Security National are clear in preventing recovery of the U.S.
    fees as a policy benefit. Section 13 provides:

13.     In determining any amounts an eligible claimant is
    entitled to recover from an inadequately insured motorist, no amount shall be
    included with respect to costs.

[57]

Together, sections 6 and 7 of OPCF 44R underscore that insurance
    coverage does not extend to the payment of fees expended in securing
    compensatory damages:

6.       The amount payable to an eligible claimant under the
    change form shall be calculated by determining the amount of damages the
    eligible claimant is legal entitled to recover from the inadequately insured
    motorist, and deducting from that amount the aggregate of the amounts referred
    to in Section 7 of this change form, but in no event shall the insurer be
    obliged to pay an amount in excess of the limit of the coverage as determined
    under Sections 4 and 5 of this change form.

7.       The amount payable under this change form to an
    eligible claimant is excess to an amount received by the eligible claimant from
    any source, other than money payable on death under a policy of insurance, and
    is excess of the amounts that were available to an eligible claimant from

(a) the insurers of the inadequately insured motorist, and
    from bonds, cash, deposits or other financial guarantees given on behalf of the
    inadequately insured motorist;

[58]

As can be seen, s. 6 allows the amounts referred to in s. 7 to be
    deducted from the amount payable to the claimant. I agree with para. 21 of
Green
:
    the language of s. 7 is unambiguous in directing that the insurer is entitled to
    deduct all funds obtained  as compensation. No allowance is made for any costs
    incurred in pursing recovery.

[59]

Indeed, s. 7 requires the deduction not only of amounts received by
    claimants, but also the amounts that were available to the eligible claimant.
    In other words, what must be deducted is the higher of two amounts: the amount
    received, and the amount available. Even if it is accepted that Mr. Hartley
    only received US$500,000 minus the U.S. fees, he was entitled under Minnesota
    law to receive US$500,000 from Minnesota.

[60]

Simply put, the U.S fees are not covered benefits. The motion judge was
    therefore correct in finding that those fees cannot be claimed against Security
    National as compensatory damages.

[61]

I do not agree, however, with the motion judges conclusion that the U.S.
    fees can be recovered against Security National as special damages. As
    indicated, OPCF 44R does not offer coverage to Mr. Hartley for U.S. fees, and
    its terms make clear that compensation will solely be for a shortfall in compensatory
    damages caused by an inadequately insured motorist. To use the vehicle of
    special damages to provide compensation for costs incurred in securing
    compensatory damages undermines the contractual agreement of the parties.

[62]

In coming to his decision, the motion judge was attracted by the analogy
    of costs being awarded in actions over and above policy limits in standard
    Ontario automobile insurance policy litigation. That analogy, however, is
    inapt. There is a material difference between awarding legal costs to a party payable
    by another party in that same action, and awarding costs incurred in a separate
    action as special damages payable by a party who was not even involved in the
    action where those costs were incurred.

[63]

Since the U.S. fees are not an insurable benefit under OPCF 44R,
    Security National should not have to pay them. In my view, the motion judge
    therefore erred in holding that Mr. Hartley could claim the U.S. fees against
    Security National.

D.

Conclusion

[64]

For these reasons, I would allow the appeal, in part.

[65]

I would dismiss Security Nationals appeal from the motion judges order
    that Minnesota is underinsured (i.e., an inadequately insured motorist) but
    would allow its appeal from the motion judges order that Mr. Hartley may claim
    his U.S. fees as special damages in his action against Security National.

[66]

Counsel have agreed that $5,000 in costs, all inclusive, should be
    payable to the successful party. Since the appeal has been allowed only in part,
    it will be necessary to hear further costs submissions.  Written submissions of
    a maximum of three pages are invited. The deadline for the appellants
    submissions is September 22, 2017. The deadline for the respondents submissions
    is September 27, 2017.

Released: GE Sep 14 2017

D. Paciocco J.A.

I agree. Gloria
    Epstein J.A.

I agree. C.W. Hourigan
    J.A.

[1]

Ms. Hartley was a plaintiff in the action against Security
    National Insurance Company that generated this appeal. She is referred to as a
    respondent in documents filed in this appeal, but she has nothing to respond
    to. Material decisions made in the action have gone against her, effectively
    terminating her cause of action. She has not appealed those decisions and they
    are not before us.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives
    from all or a part of a hearing; or

(c) prohibiting the publication of a
    report of the hearing or a specified part of the hearing,

where the court is of the opinion that the
    presence of the media representative or representatives or the publication of
    the report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
No person shall
    publish or make public information that has the effect of identifying a child
    who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the childs parent or foster parent or a member of the childs
    family.

45(9)
The
    court may make an order prohibiting the publication of information that has the
    effect of identifying a person charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Highland Shores Children's Aid Society v. C.S.D.,
    2017 ONCA 743

DATE: 20170925

DOCKET: C63823

Doherty, LaForme and Miller JJ.A.

BETWEEN

Highland Shores Childrens Aid Society

Applicant (Appellant)

and

C.S.D.

Respondent (Respondent in Appeal)

and

T.M.E.

Respondent (noted in default)

and

C.J.D.

Respondent (noted in default)

Charlotte Murray and David Tobin, for the appellant

Candice Pilgrim, for the respondent C.S.D.

Heard and released orally:  September 21, 2017

On appeal from the order of Justice Tranmer of the Superior
    Court of Justice, dated April 26, 2017, with reasons reported at 2017 ONSC
    2574, allowing the appeal from the order of Justice D.K. Kirkland of the
    Ontario Court of Justice, dated August 12, 2015.

REASONS FOR DECISION

[1]

The appellant (the CAS) moved for summary judgment, declaring A.E. a
    ward of the Crown for the purposes of adoption.  Kirkland J., of the Ontario
    Court of Justice, allowed the motion and declared A.E. a Crown ward.  The
    respondent, A.E.s mother, C.S.D., appealed the order of Kirkland J. to the
    Superior Court of Justice pursuant to s. 69 of the
Child Family Services
    Act
.  Tranmer J. allowed the appeal, set aside the order of Kirkland J.,
    and directed that the matter shall proceed to trial as soon as possible.

[2]

The CAS appealed the order to this court, relying on s. 6(1)(b) of the
Courts
    of Justice Act
, which provides for appeals to this court from a final
    order of a judge of the Superior Court of Justice.

[3]

Shortly before the appeal was to be heard, the Court of Appeal office,
    on the instructions of the court, notified the parties that the court had a
    concern that it may not have jurisdiction to hear the appeal because the order
    of Tranmer J. was an interlocutory, and not a final order.

[4]

At the outset of the hearing, the court asked for submissions on the
    jurisdiction issue.  As it turns out, because of a clerical error by the court,
    counsel for the appellant was unaware of the courts jurisdictional concerns.
    After hearing submissions, the court adjourned for an hour to allow counsel to
    further consider the matter.  Counsel made brief further submissions.

[5]

This court has repeatedly held that an order of a Superior Court judge
    refusing to grant summary judgment and directing that the matter proceed to
    trial is an interlocutory and not a final order:  see
V.K. Mason
    Construction Ltd. v. Canadian General Insurance Group Limited
(1998), 42
    O.R. (3d) 618;
Ashak v. Her Majesty the Queen in Right of Ontario
(2013),
    115 O.R. (3d) 401, at para. 7.

[6]

We think that jurisprudence applies here.  The purported appeal is from
    the order of the Superior Court judge.  That order directs that the matter
    proceed to trial.  The fact that the order set aside by the Superior Court
    judge was a final order is, in our view, not determinative of the proper
    characterization of the order made by the Superior Court judge.  Tranmer J.s
    order did not decide any issue as between the parties to the Crown wardship
    proceedings.  Rather, it directed that all issues required a trial.  In our
    view, that order was interlocutory.

[7]

The descriptor final that appears on the face of the Tranmer J. order
    does not assist in determining whether the order is final for the purposes of
    appellate jurisdiction.  This court must make its own assessment of the nature
    of the order based on the nature of the order and what the order does or does
    not decide.

[8]

There is no appeal from the order of Tranmer J. to this court.  An
    appeal lies to the Divisional Court only with leave of the Divisional Court:
    see s. 19(1)(b).  This appeal must be quashed.  Hopefully, the parties will
    move quickly to the next stage of this proceeding.   No costs.

Doherty J.A.

H.S. LaForme J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Huszti Holdings Inc. v. Your Quick Gateway
    (Windsor) Inc., 2017 ONCA 708

DATE: 20170912

DOCKET: C63289

Strathy C.J.O., van Rensburg and Trotter JJ.A.

BETWEEN

Huszti Holdings Inc.

Applicant/
Respondent in appeal

and

Your Quick Gateway
    (Windsor) Inc.
,

The Corporation of the City of Windsor
, and
The Attorney General of Canada

Respondents/
Appellants in appeal

Mark P. Nazarewich, for the appellants

Shaun F. Laubman and Niklas Holmberg, for the respondent

Heard: September 8, 2017

On appeal from the order of Justice Thomas A. Heeney of
    the Superior Court of Justice, dated December 28, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The sole issue is whether the application judge erred in concluding that
    the transformer easement had expired  that is, whether it continued to be
    required for an approach lighting system for runway 30 at the Windsor airport.

[2]

We agree with the respondents submission that the appellants critical
    problem is that they failed to provide
any
evidence on the application to support their position that the transformer
    easement was still required for the purpose for which it was granted.

[3]

We would add that the appellants own witnesss evidence served to
    demonstrate on a balance of probabilities that the transformer easement was not
    required. That evidence, together with evidence that the easement had not been
    required since its grant in 1965, evidence of the long-term plans with respect
    to runway 30 (that contemplated neither an approach lighting system nor any
    transformer), and the communication from Nav Canada served to support the
    application judges findings.

[4]

The appellants have demonstrated no palpable and overriding error. The
    appeal is therefore dismissed. Costs to the respondent in the amount of
    $27,000, all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Jones (Re), 2017 ONCA 758

DATE: 20170929

DOCKET: C63546

Cronk, Juriansz and Paciocco JJ.A.

IN THE MATTER OF:  Daniel A. Jones

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann and Janani Shanmuganathan, for the appellant

Elizabeth Teed, for the Attorney General of Ontario

Logan Crowell, for the Person in Charge of Ontario
    Shores Centre for Mental Health Sciences

Heard: September 26, 2017

On appeal against the disposition of the Ontario Review
    Board dated December 21, 2016.

REASONS FOR
    DECISION

[1]

The appellant appeals the disposition of the Ontario Review Board (the
    Board) dated December 21, 2016, ordering the appellants continued detention
    in maximum security at the Waypoint Centre for Mental Health Care (Waypoint).
    The previous disposition of the Board, dated May 18, 2016, detained him at the
    General Forensic Service of the Ontario Shores Centre for Mental Health
    Sciences (Ontario Shores), with privileges up to and including living in the
    community and accommodation approved by the person in charge.

[2]

On October 22, 2016, the appellant was transferred to the Secure
    Forensic Service at Ontario Shores. On November 2, 2016, he was transferred
    into maximum security at Waypoint. The Board found these restrictions were
    warranted and ordered his continued detention at Waypoint.

[3]

The appellant appeals only his continued detention at Waypoint, advancing
    two grounds of appeal.

[4]

First, he argues that the Board misapprehended the evidence and
    erroneously found that he decompensated as soon as he was moved to the
    minimum-security unit. The appellant says the fact is the treatment team had no
    issues with managing him safely in the minimum-security unit until he
    decompensated on October 22, 2016, almost five months later. The appellant says
    this misapprehension of evidence played an essential part in the reasoning
    process that resulted in the Boards decision to keep the Appellant at
    Waypoint.

[5]

Second, he argues that the Board failed to address in its analysis the
    fact that his change in behaviour was preceded by a change in his medication.

[6]

The appellant, who is seeking a new hearing, already has a scheduled hearing
    on December 15, 2017 at Waypoint. He is aware that even if successful on this
    appeal, the new hearing may not happen much before that date. During the appeal,
    it became evident, however, that the appellants real concern is the Boards
    disposition, if left undisturbed, would prevent him from leading medical
    evidence of the cause of his decompensation at the next hearing.. This need not
    concern him. Counsel for the respondents both acknowledge the Boards
    disposition and the failure of this appeal would not restrict the expert
    medical evidence he could lead at the next hearing. He would not be precluded
    from leading medical evidence of the cause of his prior decompensation and of
    his clinical course at Waypoint.

[7]

That said, we would not give effect to either argument advanced on the
    appeal. The Boards remark that the appellant decompensated as soon as he was
    moved to the minimum-security unit must be read in the context of its reasons
    as a whole. There was evidence before the Board that there were concerns with
    the appellants behaviour as early as July 2016, and some concerns of
    decompensation in August 2016, well before his final decompensation in October
    2016. We are not persuaded the Boards use of the phrase as soon as
    represents a misapprehension of evidence. The Board was well aware of the
    entire chronology of the appellants condition, treatment and behaviour.

[8]

Moreover, the Board was well aware of the change in the appellants
    medication and the potential impact of the change on his behaviour. The Board
    noted Dr. DeFreitass opinion was that this medication change was not the main
    factor in the appellants decompensation, and that this opinion was shared by
    Drs. Coleman and Van Impe. There is no basis for a finding that the Board
    failed to consider this evidence in coming to the decision it did.

[9]

The Boards finding that the appellant could not be managed on a
    medium-security unit was reasonable on the record before it. Counsel for the
    appellant properly acknowledged there is no fresh evidence before this court
    that the nature of the appellants risk and the ability to manage it has
    changed since the date of the hearing.

[10]

The appeal is dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lin v. Fleury, 2017 ONCA 695

DATE: 20170908

DOCKET: M48022

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Katherine Lin

Plaintiff (Moving Party)

and

Eric Fleury and Gloria Ann

Defendants (Responding Parties)

Katherine Lin, acting in person

Georgia Tanner, for the responding parties

Heard in writing: August 28, 2017

On motion for leave to appeal and request for summary
    dismissal under Rule 2.1.01.

REASONS FOR DECISION

[1]

Katherine Lin has filed a Notice of Motion for Leave to Appeal to this
    court from a decision of a single judge of the Divisional Court who quashed her
    appeal to that court for want of jurisdiction. The order was made at the
    request of the respondent under r. 2.1.01(1).

[2]

On July 10, 2017, a single judge of this court reviewed the file in this
    case. The review canvassed all available materials including a request by the
    respondent for a review under r. 2.1.01(1). The single judge directed that the
    request, as well as the motion for leave to appeal, be referred to a panel of
    the court for determination.

The Original Claim

[3]

Katherine Lin issued a claim against Eric Fleury and Gloria Ann seeking
    damages of $50,000 from Fleury and $300,000 from Ann. A generous reading of the
    claim is unrevealing of any recognizable cause of action of how the
    conversations and incidents recounted in it have caused Ms. Lin any damage.

Proceedings in the Trial Court

[4]

On May 19, 2017, a judge of the Superior Court of Justice stayed the
    action and directed the Registrar to send a notice in Form 2.1A to Ms. Lin
    advising her that the court was considering dismissing her action under r. 2.1
    on the basis that it was frivolous, vexatious and an abuse of the process of
    the court.

[5]

On May 30, 2017, after reviewing further material provided by Ms. Lin,
    the judge of the Superior Court of Justice dismissed the action with costs.

Proceedings in the Divisional Court

[6]

About one week later, Ms. Lin filed a Notice of Appeal in the Divisional
    Court. Once again, the respondent invoked r. 2.1.01(1) and asked the court to
    dismiss the appeal.

[7]

On June 9, 2017, a single judge of the Divisional Court, satisfied that
    the amounts involved exceeded the monetary jurisdiction of that court, quashed
    the appeal.

Proceedings in this Court

[8]

By Notice of Motion dated June 15, 2017, Ms. Lin sought leave to appeal
    to this court from the order of the single judge quashing her appeal to the
    Divisional Court.

[9]

Once again, the respondents invoke r. 2.1.01(1) and seek dismissal of
    Ms. Lins appeal on the grounds that it is frivolous, vexatious and an abuse of
    the courts process.

[10]

In light of the history of this proceeding, in particular, the failure
    of the statement of claim to reveal any recognizable cause of action, we have
    determined that it is appropriate to dispense with the requirements of notice
    and written submissions under r. 2.1.01(3).

[11]

We are satisfied that the motion for leave to appeal is frivolous,
    vexatious and an abuse of the process of the court. The Divisional Court had no
    jurisdiction to entertain Ms. Lins appeal because the amounts claimed exceeded
    the monetary jurisdiction of that court. The motion for leave is dismissed
    under r. 2.1.01(1).

[12]

Ms. Lin is not to commence any further motions or other proceedings in
    respect of this matter in this court without leave in writing first being
    sought and obtained from a panel of this court.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Morwald-Benevides v. Benevides, 2017 ONCA 699

DATE: 20170912

DOCKET: C62517

Feldman, Gillese, Pepall JJ.A.

BETWEEN

Melinda Morwald-Benevides

Applicant (Respondent)

and

Jeffrey Mark Benevides

Respondent (Respondent)

Chantelle Blom, for the appellant non-party Crown

Bonnie C. Oldham, appearing as
amicus curiae

D. Andrew Thomson, appearing as
amicus curiae

Heard: January 30, 2017

On appeal from the order of Justice Edward J. Koke of the
    Superior Court of Justice, dated May 30, 2016.

Feldman J.A.:

INTRODUCTION

[1]

In a fractious, toxic, and complex custody and access trial in the
    Ontario Court of Justice between two eventually unrepresented parties fighting
    over their children, the trial judge appointed an
amicus
on behalf of
    each party to assist the court.

[2]

The Attorney Generals challenge to the
amicus
appointment was
    rejected by the trial judge. The Attorney General then appealed that ruling to
    the Superior Court. The appeal judge determined that he required the assistance
    of
amicus
to resolve the issues raised on appeal, and appointed the
    same two lawyers who had served as
amicus
at trial.

[3]

The two lawyers appointed by the appeal judge were not prepared to
    accept legal aid rates to act as
amicus
on the appeal. They wanted to
    negotiate rates with the Attorney General. The Attorney General was not
    prepared to negotiate, and instead provided the court with a list of three
    highly qualified counsel who were prepared to assist the court and to accept
    legal aid rates.

[4]

The appeal judge determined that he required the two lawyers who were
    already fully familiar with the case to assist the court, and ordered a stay of
    the appeal until the
amici

and the Attorney General negotiated
    a mutually acceptable rate of compensation, or pursuant to a further order of
    the court.

[5]

It is the propriety of the appeal judges appointment of the two
amici
to assist him, and his decision to stay the appeal, that are the subjects of
    the appeal before this court.

[6]

The responding
amici
submit that the appeal judges decision to
    impose a stay is consistent with
Ontario v. Criminal Lawyers Association
    of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, and that that judgment obliges
    the Attorney General to negotiate compensation rates in good faith with
    court-appointed
amicus
, failing which, courts may be entitled to
    impose a stay of proceedings. The appellant Crown disagrees, contending that
Criminal
    Lawyers Association

neither requires the Attorney General to
    negotiate in good faith with court-appointed
amicus
, nor does it
    permit a court to impose a stay conditional on such negotiations taking place.
    A stay, in the Crowns submission, is only appropriate when the appointment of
amicus

is truly essential and a qualified
amicus

cannot be
    found.

[7]

I agree with the Crowns interpretation of
Criminal Lawyers
    Association
. For the reasons that follow, I would allow the appeal and set
    aside the appeal judges order.

FACTUAL BACKGROUND

(a)

The underlying custody and access litigation

[8]

Melinda Morwald-Benevides (the wife) and Jeffrey Benevides (the husband)
    were involved in fractious and complex litigation, lasting 23 days, before
    Keast J. of the Ontario Court of Justice, over custody and access of their
    three children  ages 14, 13, and 8. The husband, a resident and citizen of
    Bermuda, alleged parental alienation and requested access in Bermuda. The wife
    alleged domestic violence. Complex child support issues arose. The wife asked
    the court to explore integrating the courts in Bermuda and Ontario. She did not
    want to give evidence with her husband in the courtroom. The wife dismissed
    five lawyers prior to trial, which Keast J. interpreted as an effort to delay
    proceedings. On April 11, 2014, the first day of trial, the wife was
    self-represented and her emotional state bordered on hysterical. She collapsed
    in the courtroom and an ambulance took her to hospital.

(b)

The trial judge appointed
amicus
for the wife

[9]

Keast J. found that the wife was incapable of representing herself and
    sought to stabilize the proceedings in a situation of alleged domestic abuse. He
    appointed Mr. Andrew Thomson
amicus
, at legal aid rates, and rejected
    the wife's request for an adjournment due to her medical situation. The
    Attorney General was not given notice of Keast J.'s intent to appoint
amicus
.

(c)

The trial judge appointed a
micus
for the husband

[10]

The husband was initially represented at trial by Ms. Bonnie Oldham, a
    well-respected member of the local Parry Sound bar. On June 11, 2014, Ms.
    Oldham, brought a motion to be removed
from the
    record. Ms. Oldham's accounts were in substantial arrears and there was no
    reasonable
prospect of payment. The court had recently ordered a
    psychological assessment  which the husband opposed  lengthening the trial
    and increasing Ms. Oldham's expected fees.

[11]

Keast J. found that Ms. Oldham had a sound basis for asking to be
    removed as counsel of record. However, allowing her off the record would
    greatly destabilize the trial, particularly because the husband was a foreign
    resident without the financial resources to retain another lawyer, but whose income
    was too high to qualify for legal aid. To avoid an imbalance due to his
amicus
appointment for the wife, Keast J. decided to appoint Ms. Oldham as
amicus
for the husband. Again, the Attorney General was not given notice of the
    appointment.

(d)

The Attorney Generals motion to set aside the a
micus
orders
    was denied

[12]

The Attorney General brought an intervener motion before Keast J., to
    set aside the two
amicus
orders. Keast J. reserved his decision until
    the completion of trial and then dismissed the Attorney General's motion.
    Following the trial, Keast J. made two custody and access orders, dated January
    29 and May 2, 2016. Those decisions are under appeal by the wife to the
    Superior Court.

(e)

The Attorney General appealed to the Superior Court of Justice

[13]

The Attorney General appealed from the dismissal of its intervenor
    motion to the Superior Court of Justice, on the ground that Keast J. had
    exceeded his jurisdiction in appointing
amici
to act as counsel for
    parties to the proceeding and in requiring the Crown to fund those
amici
.

(f)

The wife indicated her intent to intervene in the Attorney Generals
    appeal

[14]

The wife indicated her intent to intervene in the Attorney General's
    appeal arguing that Mr. Thomsons appointment as
amicus
breached her
    rights to procedural fairness and s. 7 of the
Charter
. The Chair of
    the Family Lawyers' Association of Ontario also indicated that the organization
    was considering whether to seek leave to intervene.

(g)

The appeal judge appointed Mr. Thomson and Ms. Oldham as
amici

[15]

The Attorney General's appeal was scheduled to be heard before Koke J. By
    endorsement dated November 23, 2015, he appointed Mr. Thomson and Ms. Oldham to
    act as
amici
on the appeal, and invited the parties to schedule a
    hearing if they wished to make submissions about the appointments.

[16]

In his endorsement, Koke J. provided three reasons for selecting
    Mr. Thomson and Ms. Oldham as
amici
on
    appeal: their experience, their familiarity with the factual matrix underlying
    the appeal, and their independence from the Attorney Generals office.
He
    also noted that the named parties no longer needed to respond to the appeal,
    and expressed concern that absent an
amicus

appointment, the
    court would not have the benefit of responding submissions on
an
appeal raising significant and complex
    jurisdictional and constitutional questions.

[17]

Koke J. then commented on the process for setting remuneration
    rates for the
amici
. He emphasized that, according to
Criminal
    Lawyers' Association
, the
amici
and the Attorney General should
    meet to set rates and modes of payment. While judges could only play a
    persuasive role in setting the rate of remuneration, they retained authority to
    impose a stay of proceedings
in the event that
    an amicable resolution was not forthcoming (at para. 20). Koke J. also held
    that
Criminal Lawyers Association
"implied" that "the rate of compensation be
    reasonable" (at para. 22). He noted a variety of factors relevant to
    determining reasonableness; the legal aid rate was only a reference point
    because "the court should not be placed in the same category as an
    impecunious party" (at paras. 23-24). In complex jurisprudential cases,
    the rate must not be so low as to prevent the court from selecting the most
    appropriate candidates (at para. 24). Given that the Attorney General was both
    the moving party and being called upon to fund
amici
responding to the motion, Koke J. warned that the
    failure to set a reasonable rate could undermine public confidence in the
    administration of justice (at para. 25).

(h)

The Attorney General moved to set aside the a
micus
orders

[18]

The Attorney General moved before Koke J. to have the
amicus
orders for the appeal set aside. In its motion record, the Attorney General
    identified three senior members of the bar with appellate experience  Sandra
    Meyrick, Anthony Macri and Charlotte Murray  who were willing to act as
amici
at legal aid rates.

(a)

Written Correspondence between the Attorney General,
amici
& Koke J.

[19]

The Attorney General offered Mr. Thomson and Ms. Oldham compensation at
    legal aid rates. The
amici
,
    however,
were only prepared to act at higher, though discounted,
    rates. Mr. Thomson informed Koke J. of the impasse
and requested that the court mediate the issue. Koke J. felt that he
    could not mediate the issue without the parties consent
. Instead, he
    advised that he would impose a stay of the appeal unless the fee issue was resolved
    by April 27, 2016. He also expressed concern that the Attorney General was in a
    conflict of interest with respect to the fee issue, and indicated that he would
    "not accept a situation where one party to a dispute seeks to unfairly
    gain an advantage, or where the quality of the submissions before me in what is
    a very significant case may be
compromised."

[20]

The Attorney General asked Koke J. to appoint different
amici
who would accept rates agreeable to the Attorney General. Koke J. refused,
    stating in his response that the Attorney General was obliged to "attempt
    to negotiate a mutually acceptable rate in good faith, and that Fish J., writing
    for the minority in
Criminal Lawyers' Association
, foresaw the very
    circumstances that had now arisen before him, prompting the majority to require
    negotiation of the fee. The Attorney General then requested an opportunity to
    make submissions at an oral hearing on why a stay would not be appropriate. The
    next day, the

Attorney
    General and
amici
appeared before Koke J. to argue the motion.

THE DECISION TO ORDER A STAY

[21]

Koke J. dismissed the motion to set aside the
amicus
appointments
    and imposed a stay of the Attorney General's appeal. The stay would endure
    until such time as the Attorney General and
amici
had negotiated a
    mutually acceptable rate of compensation (or until the court otherwise ordered
    the stay lifted).

[22]

Koke J. repeated his initial reasons for selecting the particular
    counsel as
amici
. He also acknowledged the
amici
s
further argument that the Attorney
    General would realize considerable cost savings, despite higher hourly rates,
    because the
amici
: (i) were local counsel who would not incur travel
    expenses; (ii) already had the transcripts, valued at thousands of dollars; and
    (iii) were already familiar with the facts.

[23]

The Attorney General did not argue that the rate
amici
requested was unreasonable. Rather, it submitted that it had no obligation to
    negotiate with
amici
and had a list of suitable alternative counsel
    who would work for the legal aid rate (at paras. 28-29).

[24]

Koke J. rejected the Attorney Generals submission and re-iterated his
    interpretation of
Criminal Lawyers' Association
.
He held that
    the Attorney General had an obligation to negotiate with
amici
to set
    remuneration above the legal aid rate (at para. 39). In so holding, Koke J.
    interpreted the majority in
Criminal Lawyers' Association
, at paras.
    75-76, to have established a procedure whereby the parties negotiate the rate
    of compensation. In his view, the crux of the majoritys dispute with the minority
    was that, failing a compromise, the majority would issue a stay until the
amicus
could be found whereas the minority would set the rate of compensation (at
    para. 37). In his view, the legal aid rate was not fair and reasonable in all
    cases (at para. 43), and a judge should not be restricted to those counsel
    willing to work at legal aid rates (at para. 42).

[25]

Koke J. stated that he had no evidence that the Attorney General's
    suggested lawyers were qualified to act on the appeal (at para. 49) and did not
    view vetting the list as falling within his role (at para. 51). Koke J. refused
    to set aside the appointment of the two
amici
who were familiar with
    the positions of both parties, and instead appoint one
amicus
(at
    para. 56). Finally, he noted that the wife's position on appeal supported the
    Attorney General, doing little to alleviate the need for
amici
.

ISSUES

(1)

Whether the appeal judge erred
    in finding that the Attorney General had an obligation to negotiate a fair and
    reasonable fee agreement with the appointed
amici
.

(2)

Whether the appeal judge erred
    in staying the Crown's appeal.

(3)

Whether the appeal judge erred
    in holding that two
amici
, as opposed to a single
amicus
,
    were required to provide responding submissions.

ANALYSIS

[26]

Although there are three discrete issues before this court arising from
    the order and reasons of the appeal judge, whether he had the jurisdiction to
    make the orders that he did turns on the interpretation and application of the
    Supreme Courts decision in
Criminal Lawyers Association
.

[27]

The
Criminal Lawyers
appeal arose out of three criminal trials,
    where in each case, the trial judge appointed
amicus
to assist accused
    who had discharged their lawyers. The trial judges made the appointments to
    either maintain the orderly conduct of the proceedings or to avoid significant
    delay in already complex, lengthy cases. In each case, the
amicus
refused to accept legal aid rates, and the trial judge fixed a higher rate,
    ordering the Attorney General to pay.

[28]

The Supreme Court split on whether a court could set remuneration rates for
amicus

and order the Attorney General to pay. While the
    minority held that superior courts have that power, the majority disagreed.
    Karakatsanis J. summarized the position of the majority as follows, at para. 15:

The jurisdiction to appoint an
amicus
does not
    necessarily imply or require the authority to set a specific rate of
    compensation.  The ability to order the government to make payments out of
    public funds must be grounded in law and a courts inherent or implied
    jurisdiction is limited by the separate roles established by our constitutional
    structure.  Absent authority flowing from a constitutional challenge or a
    statutory provision, exercising such power would not respect the institutional
    roles and capacities of the legislature, the executive (including the Attorney
    General), and the judiciary, or the principle that the legislature and the
    executive are accountable to the public for the spending of public funds.

[29]

She then explained the constitutional framework for the roles of the
    legislature, the superior courts with inherent jurisdiction and the Attorney General
    in the administration of justice. Within that framework, courts with inherent
    jurisdiction are not permitted
to enter the
    field of political matters such as the allocation of public funds, absent a
Charter
challenge or concern for judicial independence
.
    For that reason,
it is generally accepted that courts
    of inherent jurisdiction do not have the power to appoint court personnel
.
    (para. 41)

[30]

Although courts cannot appoint administrative staff, they possess
    inherent jurisdiction to appoint amicus in criminal trials. That jurisdiction
    is grounded
in [a courts] authority to control
    its own process and function as a court of law
. (para. 46) However,
    there are conditions to that jurisdiction (paras. 47-48):

Thus, orders for the appointment of
amici
do not cross
    the prohibited line into the provinces responsibility for the administration
    of justice, provided certain conditions are met.  First, the assistance of
amici
must be essential to the judge discharging her judicial functions in the case
    at hand.  Second, as my colleague Fish J. observes, much as is the case
    for other elements of inherent jurisdiction, the authority to appoint
amici
should be used sparingly and with caution, in response to specific and
    exceptional circumstances (para. 115).  Routine appointment of
amici
because the defendant is without a lawyer would risk crossing the line between
    meeting the judges need for assistance and the provinces role in the
    administration of justice  so long as these conditions are respected, the
    appointment of
amici
avoids the concern that it improperly trenches on
    the provinces role in the administration of justice.

[31]

The majority held that the authority to set rates of compensation for
amicus
falls outside the inherent jurisdiction of superior courts. Indeed,
the spectre of trial judges fixing and managing the
    fees of
amici
imperils the
    integrity of the judicial process
. (para. 64) A court is entitled to
    specify the general qualifications required by amicus for the particular
    circumstances, while the Attorney General is obliged to pay what is
    constitutionally
adequate to serve the needs of
    the courts
. (para. 65) While a court may set rates where its authority
    is either based on a statute (e.g. s. 694.1(1) of the
Criminal Code
), or
    as a constitutional remedy under s. 24(1) of the Charter, it cannot use its
    inherent jurisdiction to order the expenditure of funds, which would exceed its
    role within the constitutional framework.

[32]

The final issue addressed by the majority was the specific process to be
    followed after a courts appointment of
amicus
. The majority stated
    that where
amicus
appointed by the court refuses to accept the
    compensation offered by the Attorney General, the courts inability to have the
amicus
of its choice does not deprive the court of its nature as a
    court of law. (para. 70) Karakatsanis J. noted that in Ontario, the Attorney General
    typically finds for the judges consideration a number of other appropriate
    lawyers willing to assist the court.

[33]

The majority then explained, at paras. 75-76, the process to be followed
    where there is an impasse:

In those exceptional cases where
Charter

rights
    are not at stake but the judge must have help to do justice and appoints an
amicus
,
    the person appointed and the Attorney General should meet to set rates and mode
    of payment. The judge may be consulted, but should not make orders regarding
    payment that the Attorney General would have no choice but to obey.

In the final analysis, if the assistance of an
amicus

is truly essential and the matter cannot be amicably resolved between the
amicus
and the Attorney General, the judges only recourse may be to exercise her
    inherent jurisdiction to impose a stay until the
amicus
can be found.
    If the trial cannot proceed, the court can give reasons for the stay, so that
    the responsibility for the delay is clear.

[34]

In contrast, the minority took the position that a court has the ultimate
    power to impose a rate of compensation on the Attorney General. It recommended
    a consensual approach where the
amicus
and the Attorney General
    would meet and agree on the rate of remuneration and the administration of the
    budget. Both parties would negotiate in good faith, the Attorney General to
    promote the administration of justice, and
amicus
to fulfill the
    professions public service role, with negotiations to be completed as quickly
    as practicable. But if agreement cannot be reached, then the trial judge does
    not impose a stay, but rather, fixes the rate of remuneration. The Attorney General
    would then choose to either pay that rate or, as a party to the proceeding,
    choose to stay the proceedings.

APPLICATION TO THIS APPEAL

[35]

Unlike
Criminal Lawyers Association
, this appeal involves the
    appointment of
amicus
in a civil, family law case. In
Criminal
    Lawyers Association
, the Supreme Court analyzed the role and jurisdiction
    of the court over
amicus

appointments and compensation in a
    criminal law context. Having said that, much of the discussion and analysis of
    the inherent jurisdiction of the court to appoint
amicus
 and the
    limits of that jurisdiction when it comes to fixing remuneration rates  may be
    equally applicable in the civil context. On the other hand, the ultimate remedy
    of a stay, whether imposed by the court as held by the majority of the Supreme
    Court, or by the Attorney General as suggested by the minority, would normally
    not be appropriate in a civil case where the Attorney General is not a party.

[36]

On this appeal, the issue is not the propriety of the
amicus

appointments at trial, which is the subject of the appeal before Koke J.
    when it goes ahead. The only issues for this court to resolve are the remuneration
    of
amicus
before the Superior Court, what is to happen when
    remuneration is not agreed, and whether one or two
amici

were required
    to provide responding submissions. I agree with both the trial judge and the
    appeal judge that the decision in
Criminal Lawyers Association
governs
    the approach and decision regarding these issues in the context of this appeal,
    which involves the Attorney General as a party.

[37]

In oral argument before this court, counsel for the Attorney General did
    not dispute the necessity of the appointment of
amicus

by the
    appeal judge to respond to the Attorney Generals appeal.
[1]
However, counsel maintained that one
amicus

would have been adequate
    to provide responding submissions, and that the
amicus

should
    have been selected from the list offered by the Attorney General. The appeal
    judge, as outlined above, rejected these submissions and imposed a stay
    conditional on mutual agreement on remuneration rates. I now turn to
    considering the merits of that order.

1)

Did
    the appeal judge err in holding that the Attorney General had an obligation to
    negotiate rates with amicus?

[38]

In my view, a careful reading of the majority decision in
Criminal
    Lawyers Association

makes it clear that the court imposed no
    obligation on the Attorney General to negotiate rates with
amicus
.

[39]

The majority recognized the power of a court to appoint
amicus
in appropriate circumstances. It acknowledged, however, that the court-appointed
amicus
may not be prepared to accept the compensation initially offered
    by the Attorney General, as occurred in this case. The majority judgment provides
    three guidelines relevant to such a situation  none of which impose an
    obligation on the Attorney General to negotiate rates with
amicus
.

[40]

First, the majority clearly stated that a court does not have the
    ability to force agreement between the parties by specifying a rate in order to
    secure the
amicus
counsel of its choice.

[41]

Second, the majority approved of the practice in Ontario where the
    Attorney General finds a number of qualified counsel who are willing to act as
amicus
at the rate offered by the Attorney General. The majority also discussed other
    programs the Attorney General could institute to either enhance the legal aid
    plan or to establish a separate regime for
amicus
.

[42]

Third, the majority held that if the
amicus
and the Attorney General
    are not able to agree on remuneration, and where the assistance of
amicus
is truly essential, then the courts only recourse is to impose a stay until
    [an appropriate] amicus can be found. (para. 75)  in other words, until
    another counsel can be found to act as
amicus
where it is truly
    essential to have
amicus
to assist the court.

[43]

At no point did the majority impose an obligation on the Attorney General
    to negotiate remuneration rates with court-appointed
amicus
. The
    majority did suggest that when a judge requires help and appoints
amicus
,
    the
amicus
and the Attorney General should meet to discuss rates and a
    mode of payment (para. 75). Unlike the minority, the majority does not state
    that the Attorney General should negotiate rates with the
amicus
in
    good faith. This is a significant, and in my view, clearly a deliberate
    departure from the approach taken by the minority.

[44]

In this case, although the Attorney General did not meet with the
    counsel who were appointed as
amicus
, there was correspondence about
    rates.
Amicus

counsel and the Attorney General were unable to reach
    an agreement. In my view, the Attorney General was not required to negotiate
    further with the appointed
amicus
, having fulfilled the expectation of
    the majority decision in
Criminal Lawyers Association
.

2)

Did
    the appeal judge err by ordering a stay of proceedings?

[45]

Criminal Lawyers Association

makes the remedy of a stay
    available to a judge in one set of circumstances: where the assistance of
amicus
is truly essential, the appointed
amicus
and the Attorney General
    cannot agree on a rate of remuneration, and there is no other recourse but to
    stay the proceedings until another appropriate
amicus
can be found.

[46]

The respondents submissions suggest that
Criminal Lawyers
    Association
recognized a
second
set of circumstances where a stay
    can be imposed: when the Attorney General refuses to negotiate with the
court
s
    choice of amicus, even when other appropriate

amici

are
    available.

[47]

I would reject those submissions. In this case, the circumstances
    necessary for a stay did not prevail. Although the appeal judges preferred
    counsel were not available because they would not work for legal aid rates, the
    majority decision in
Criminal Lawyers
makes clear that a court is not
    necessarily entitled to
amicus
of its choice where other appropriate
    counsel have been made available by the Attorney General.

[48]

For the purpose of the appeal to the Superior Court, the Attorney General
    provided three senior counsel with appellate experience from the family law bar
    in Ontario for the appeal judges consideration, in accordance with the
    practice that was acknowledged and approved by the majority in
Criminal
    Lawyers Association
In these circumstances, there was no basis for the
    court to order a stay.

3)

Did
    the appeal judge err by requiring two amicus to respond to the appeal?

[49]

In the special circumstances of this case, the trial judge required two
amici
, one on behalf of each unrepresented party, to maintain a proper
    adversarial process that would challenge the evidence presented by each side
    and allow the trial judge to decide the issues between them on the merits.
    However, that logic did not extend to the appeal of the
amicus
orders
    by the Attorney General. That appeal would not be concerned with the merits
    between the parties, but with the constitutional and policy issues surrounding
    the power to appoint
amicus
in a civil case at the expense of the
    Attorney General.

[50]

Applying the truly essential test, I can see no basis for the decision
    that two
amici
were essential to assist the appeal judge with the
    legal issues to be raised on the appeal. Similarly, while this court
    appreciates very much the assistance of the two
amici
who acted as responding
    counsel before this court, their submissions on the issues to be decided before
    the Superior Court were not in opposition in any way. Rather, they supported
    each other.

CONCLUSION

[51]

For the reasons given, I would set aside the stay, and remit the matter
    back to the appeal judge to consider the three
amicus
counsel proposed
    by the Attorney General who are prepared to act for legal aid rates, and
    appoint one to assist the court on the appeal.

[52]

The Attorney General requested that the matter be remitted to a different
    judge of the Superior Court, but did not provide supporting reasons. I see no
    basis for such an order.

[53]

As stated, the court is grateful for the assistance of
amicus
on this appeal.

Released: S.E.P. September 12, 2017

K. Feldman
    J.A.

I agree.
    E.E. Gillese J.A.

I agree.
    S.E. Pepall J.A.

[1]

All parties were co-operative in having the same two amicus
    assist this court on the appeal. For that purpose only, the two amicus counsel
    agreed to accept legal aid rates.


COURT OF APPEAL FOR ONTARIO

CITATION:  Muslim Green Cemeteries Corporation v. Toronto
    Muslim Cemetery Corp., 2017 ONCA 732

DATE: 20170920

DOCKET: C63119

Doherty, LaForme and Miller JJ.A.

BETWEEN

Muslim Green Cemeteries Corporation

Applicant (Respondent in Appeal)

and

Toronto Muslim Cemetery Corp.

Respondent (Appellant in Appeal)

Shahzad Siddiqui, for the appellant

John Longo and Patrick Copeland, for the respondent

Heard:  September 19, 2017

On appeal from the order of Justice Dow of the Superior
    Court of Justice, dated November 22, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that he was denied procedural fairness when the
    application judge refused to adjourn the application.  The appellant points out
    that it was unrepresented by counsel, had taken steps to prepare a response,
    and that there had been no prior adjournments.

[2]

The application judge concluded that the adjournment request was an
    attempt to delay the proceeding.  That finding of fact has support in the
    record before the application judge.

[3]

In particular, we note that the history of this litigation in relation
    to this conduct supports the inference that the appellant was resisting through
    litigation and otherwise the performance of its obligations under the contract.
    The application judge could reasonably see the request for an adjournment as a
    further attempt to delay the performance of the appellants obligations.

[4]

We note that the appellants relative inaction in the seven weeks
    between service of the application and the return date also supports the
    application judges assessment.  There is no reason that the request for an
    adjournment was not made weeks before the return date.

[5]

In addition, we note that there was some urgency in proceeding with the
    application from the respondents perspective.

[6]

The application judges refusal to adjourn the application was an
    exercise of his discretion.  As he had a reasonable basis for his decision, we
    decline to interfere.

[7]

The appeal is dismissed.  Costs to the respondent in the amount of
    $15,000, inclusive of disbursements and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: National Gallery of Canada v. Lafleur de la
    Capitale Inc.,

2017 ONCA 688

DATE: 20170906

DOCKET: C62922

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

The National Gallery of Canada

Respondent (Applicant)

and

Lafleur de la Capitale Inc. and Intact Insurance
    Company

Appellants (Respondents)

Kelly Hart, for the appellants

Mark Charron and Stephanie Doucet, for the respondent

Heard: May 5, 2017

On appeal from the judgment of Justice C. MacLeod of the
    Superior Court of Justice, dated October 13, 2016.

REASONS FOR DECISION

Overview

[1]

The appellants appeal from an order requiring the appellant, Intact
    Insurance Company (Intact), to assume and fund the respondents defence to
    two actions.

[2]

Under a contract between the respondent and Lafleur de la Capitale Inc.
    (Lafleur) for landscaping and maintenance services at the respondents
    premises (the maintenance contract), the appellant Lafleur was required to
    add the respondent as a named insured under its comprehensive general liability
    (CGL) policy. Lafleurs CGL policy was with Intact. This policy provides for coverage
    of not less than five million dollars per occurrence of bodily injury or
    property damage.

[3]

A January 21, 2014 Endorsement to the policy adds the respondent as an
    additional insured but only insofar as [its] Legal Liability arises
    vicariously out of the operations of [Lafleur] in connection with [its
    landscaping and snow removal services].

[4]

The CGL policy contains numerous exclusions. Relevant to these
    proceedings are the exclusions for workers compensation claims and claims
    arising out of an employers liability for injuries to employees incurred in
    the course of employment.

[5]

In August 2013, an employee of Lafleur, Conrad Lafrenière, tragically suffered
    fatal injuries in the course of his employment. He was carrying out maintenance
    work on a vehicle ramp located on the respondents premises. When a vehicle
    approached to enter the underground garage, Mr. Lafrenière stepped back towards
    the ledge of the ramp and fell.

[6]

The two underlying actions were commenced against the respondent by the spouse
    of the late Mr. Lafrenière (the Arsenault action)
[1]
and other family members bringing claims under the
Family Law Act
, R.S.O.
    1990, c. F.3 (the Lafrenière action).

[7]

The respondent brought an application for an order and declaration that
    Intact and Lafleur are obliged to provide and fund its full defence in the
    underlying actions, relying on the terms of the maintenance contract and the
    CGL policy.

[8]

While the application judges reasons state that both appellants have a
    duty to defend, the order appealed from declares only that Intact has a duty to
    defend. It is trite law that an appeal is from the formal order and not the
    reasons:
Heston-Cook v. Schneider
, 2015 ONCA 10, [2015] O.J. No. 120,
    at para. 12. The parties agree that the issue of whether Lafleur has a duty to
    defend is not before us.

[9]

The appellants submit that the application judges brief reasons do not
    permit meaningful appellate review. Further, they assert that the claims in the
    two actions are not covered when the pleadings, maintenance contract and policy
    are considered. Even if the plaintiffs claims are covered under the initial
    insuring agreement, the appellants argue that the claims are nevertheless excluded
    because they are effectively workers compensation claims brought on behalf of
    the late employee and his survivors against his employer, Lafleur.

[10]

To dispose of this appeal, it is necessary to deal with only the first
    issue.  For the reasons that follow, we agree that the application judges
    reasons are inadequate and do not permit meaningful appellate review. In his
    brief reasons, the application judge did not conduct the necessary analysis of
    the pleadings, maintenance contract and policy, which were essential in this
    complex case, to address the coverage issue. We are also concerned that we did
    not have the benefit, in the appeal to this court, of full argument on all
    matters that are relevant to the disposition of the application. As a result, we
    allow the appeal and remit the application for a new hearing before a different
    judge.

Analysis

Adequacy of Reasons

General Principles

[11]

It is well-established that a judge is required to give reasons
    sufficient to permit meaningful appellate review of the correctness of the
    decision. This means that the judges reasons must allow the parties and the appellate
    court to discern why the judge reached his or her conclusions on key issues in
    circumstances which require an explanation:
R. v. Sheppard
, 2002 SCC
    26, [2002] 1 S.C.R. 869, at paras. 28 and 46.

[12]

The critical question is whether what the judge has stated is
    sufficiently intelligible in the context of the record, the issues and the
    submissions of counsel, to show that the judge has seized the substance of the
    matter and has addressed the critical issues that he was required to decided:
R.
    v. M. (R.E.),
2008 SCC 51
,
[2008] 3 S.C.R. 3, at paras. 37, 43
    and 57.

Application

[13]

In the present case, the application judge was required to decide whether
    or not Intact owed the respondent a duty to defend the Arsenault and Lafrenière
    actions. To determine this issue, the application judge had to undertake a
    detailed analysis of the pleadings, the insurance policy, including the
    Endorsement, and the maintenance contract, in the context of the following questions:

i.

whether the plaintiffs showed that the loss at issue is covered under
    the terms of the policy;

ii.

if the loss is covered, whether Intact demonstrated that an exclusion
    applies; and,

iii.

if an exclusion applies, whether the plaintiffs established that there
    is an exception to the exclusion.

See:
G & P Procleaners and General Contractors
    Inc. v. Gore Mutual Insurance Co.
, 2017 ONCA 298, [2017] O.J. No. 1871, at
    paras. 13-14.

[14]

The application judges reasons for finding that a duty to defend the
    respondent is invoked are contained in the following paragraphs:

I am of the view that the duty to defend is engaged because at
    least some of the allegations in these pleadings if proven could relate to
    issues of maintenance or of measures that should have been taken in the cause
    of maintenance. Accordingly there will be a finding that the duty to defend is
    engaged and that the respondents must fund the defence in the first instance.

This is subject to a right to seek
    to recover costs if ultimately liability is found only for aspects of the claim
    that are outside the scope of coverage. This issue is a live issue in the third
    party proceeding.

[15]

The respondent submits that although brief, the application judges
    reasons reveal that he was alert to the relevant legal principles to be applied
    in his consideration of whether Intact owed the respondent a duty to defend.

[16]

First, the application judge alludes in his reasons to the leading test
    for determining whether there is a duty to defend, namely, that if at least
    some of the allegations in the pleadings were proven to be true and relate to
    issues of maintenance under the maintenance contract between Lafleur and the
    respondent, they could fall within the applicable insurance coverage and Intact
    would be required to defend those claims:
Progressive Homes Ltd. v. Lombard
    General Insurance Co. of Canada
, 2010 SCC 33, [2010] S.C.R. 245, at para.
    19;
Monenco Ltd. v. Commonwealth Insurance Co.
, 2001 SCC 49, [2001] 2
    S.C.R. 699, at paras. 28-29.

[17]

Further, the application judges reasons also reference the following
    principles: coverage is not excluded for an entire action where only some of
    the claims in the pleadings are covered; and Intact could be required to defend
    the Arsenault and Lafrenière actions in their entirety and then seek an
    apportionment of its defence costs at the end of the proceedings to the extent
    that they deal solely with any uninsured claims:
Carneiro v. Durham
    (Regional Municipality)
,  2015 ONCA 909, 92 M.V.R. (6th) 179, at para. 28.

[18]

The difficulty with the respondents submissions is that, while the
    application judges reasons advert to the relevant principles, he did not
    engage in any analysis of the critical issues that had to be addressed and
    resolved in the application of these principles to the present case. The
    conclusion that some of the allegationscould relate to issues of maintenance
    did not address the following, which in our view (and without suggesting in any
    way how the application should be determined) are relevant and material to the
    determination of coverage in this case:

·

The
    allegations in the Arsenault and Lafrenière actions, while similar, are not
    identical. For example, the Arsenault statement of claim specifically frames
    the context of Mr. Lafrenières accident as a workplace accident, which on its
    face invokes the relevance of the exclusion clauses in the policy for workers
    compensation and employers liability.

·

The
    statements of claim do not explicitly plead fault or negligence on the part of
    Lafleur and vicarious liability of the respondent for such fault or negligence.
    The allegations in both actions could be read as allegations directly against
    the respondent for negligence in relation to structural or design defects,
    which appear to have nothing to do with its vicarious liability for the acts
    and omission of Lafleur under the maintenance contract for which coverage is
    provided under the policy. The analysis should consider the relevant provisions
    of the maintenance contract, the policy and the Endorsement, in determining the
    true nature of the claims and the scope of coverage.

·

The
    CGL policy contains exclusions, in particular for any obligation of the Named
    Insured under a workers compensationlaw and for bodily injury to an
    employee of the Insured arising out of and in the course of employment. The
    potential application of either or both of these exclusions should be
    considered.

Disposition

[19]

In our view, it is not appropriate for this court to determine whether
    Intact has a duty to defend the respondent. We lack a full argument on all of
    the essential points. Important issues relevant to the duty to defend, which
    may have far-reaching effect beyond the interests of the parties to these
    proceedings, were not fully argued.

[20]

Accordingly, we allow the appeal, set aside the order of the application
    judge, and order the rehearing of the application by a different judge.

[21]

The appellants, as the successful parties, are entitled to their partial
    indemnity costs of the appeal in the agreed-upon amount of $5,000, inclusive of
    disbursements and HST. We reserve the costs of the original hearing of the
    application to the judge re-hearing the application.

Paul Rouleau J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.

[1]
As the statement of claim notes, the action is brought as a subrogated action
    in the name of the plaintiff by the Workplace Safety and Insurance Board.