Potpourri: an unusual or interesting mixture of things.
– Cambridge Dictionary
The last two years have certainly brought many new and interesting changes to the legal world, including some pertinent case law worth discussing. We have collected some compelling insurance cases covering a range of relevant topics.
POLICY EXCLUSION CLAUSES
Tataryn v. Axa Insurance Canada, 2021 ONCA
If your home suffers water damage during renovations, does the “under construction” exclusion apply? The Ontario Court of Appeal said “No” in Tataryn v Axa Insurance Canada.
Susan Tataryn, the plaintiff, insured her residential property under a Homeowners Comprehensive policy (the “Policy”) with Axa Insurance, now Intact Insurance Company of Canada, (“AXA”). The plaintiff also purchased a Business Interruption Endorsement because the property housed her tax law practice.
The plaintiff began renovating the second and third floors of the building in 2010. Two incidents of water damage took place. The first, December 10, 2010, involved an internal plumbing malfunction. The second, March 6, 2012, involved a boiler system malfunction. The plaintiff’s property was under renovation before the first loss, but the renovations were in abeyance when the second loss occurred.
AXA provided coverage for the first loss and denied coverage for the second based on a Policy exclusion. More specifically, the exclusion clause stated:
We do not insure loss or damages…
[19.] caused by water unless loss or damage resulted from…
[(b)] the sudden and accidental escape of water or steam from within a plumbing, heating, sprinkler or air conditioning system or domestic water container, which is located inside your dwelling … but we do not insure loss or damage [viii.] occurring while the building is under construction, vacant, or unoccupied, even if we have given permission. [Emphasis added.]
The plaintiff brought a summary judgement motion. The motion judge concluded that this exclusion was not applicable, hence the defence of AXA was dismissed.
The Court confirmed the principles of policy interpretation as enunciated in authoritative case law: (1) coverage provisions should be interpreted broadly and exclusions narrowly; (2) the policy should be read as a whole; (3) if the policy is ambiguous courts should rely on general rules of contract construction giving preference to interpretations consistent with the reasonable expectations of the parties.
The motion judge found that the Policy at hand did not define “construction.” However, his Honour looked into the American publication, Black’s Law Dictionary, which interpreted it to mean “[t]he creation of something new, as distinguished from the repair or improvement of something already existing. The act of fitting an object for use or occupation in the usual way, and for some distinct purpose.” His Honor stated that he Court of Appeal of British Columbia had followed this line of reasoning in a similar situation. Further, his Honour concluded that if a house is worked on by a contractor it was not interpreted to mean it is “under construction.” The extent of the renovations did not support a finding of fact that the house was “under construction.” The contrary interpretation was found to run against the plaintiff’s expectation in this case.
AXA appealed. On appeal, the Court upheld the motion judge’s decision. Whether a property is “under construction” is a question of degree and fact and, as held by the motion judge, the extent of the renovations were insufficient to find the house was “under construction”. The motion judge had not erred in his determination.
The take-aways from this case could be that “renovation” does not equal “under construction.” Also, unless specifically defined in the policy, “under construction” could be subject to interpretation by the Court and weight could be given to extra-jurisdictional publications and authoritative case law. More importantly, it will be within discretion of the Court to engage in a fact-finding exercise bearing in mind the body of evidence on a particular case to conclude one way or the other.
Lin v Aviva General Insurance Company, 2020 ONSC
Argued virtually and successfully by Stieber Berlach LLP’s own Frank Csathy and Michael Connolly, Lin v Aviva General Insurance Company considers the interplay between the Marijuana Exclusion clause and Innocent Insured Legislation.
The plaintiff, Lin, purchased a home in Markham and insured the property through RBC. The Wengs rented the master bedroom, however they defaulted on their payments. Lin requested that the Wengs pay their arrears and move out within a specific timeframe. On March 15, 2016, while Lin was at work, Qi An Weng tried to extract resin from marijuana in the basement, causing an explosion and fire that destroyed the property. Qi An pled guilty to drug-related and arson charges. Lin submitted a property loss claim, which Aviva denied based on the following Marijuana Exclusion:
We do not insure: […]
28. Growing, cultivation, harvesting, processing, manufacturing, distribution, storage or sale of marijuana or any product derived from or containing marijuana or any other drug, narcotic or illegal substance falling within the Schedules of the Controlled Drugs and Substances Act. This includes loss or damage to buildings or structures or Personal Property contained in them, used in whole or in part, including any alteration to the premises to facilitate such activity whether or not the insured is aware of such activity or use of the property.
After Lin commenced the within action, s. 129.1 of the Insurance Act came into force on April 30, 2018 (known as “innocent insured” legislation). Section 129.1 states:
If a contract contains a term or condition excluding coverage for loss or damage to property caused by a criminal or intentional act or omission of an insured or any other person, the exclusion applies only to the claim of a person,
- whose act or omission caused the loss or damage;
- who abetted or colluded in the act or omission;
- consented to the act or omission, and
- knew or ought to have known that the act or omission would cause the loss or damage; or
- who is in a class prescribed by the regulations.
Aviva denied coverage and argued that the Marijuana Exclusion clause operates irrespective of the innocent insured legislation. Lin amended his Statement of Claim and argued that s. 129.1 applied retrospectively and prevented his claim from being excluded by the Marijuana Exclusion clause.
Regarding the issue of whether the Marijuana Exclusion applies to exclude coverage irrespective of s. 129.1, Justice Pinto endorsed the defendant’s argument that the Marijuana Exclusion operates irrespective of s. 129.1. In so doing, his Honour drew a fine line between the purpose of the exclusion and the legislative amendment. Accordingly, Justice Pinto found that the “exclusion is based on excluding certain uses from coverage regardless of the insured’s conduct”. The amendment, on the other hand “is based on nullifying certain exclusions where the legislature has chosen to differentiate between  the innocent conduct of the insured and  the culpable conduct of the person responsible for the loss. [Emphasis added]
The Court also addressed the equally important issue of whether the Innocent Insured amendment can apply retrospectively. Aviva submitted that if the amendment would apply in such fashion, it would displace its “substantive and vested” contractual right to deny coverage on the basis of the Marijuana Exclusion clause. The plaintiff, among other things, submitted that the date of loss was relevant to damages but not to the amendment, which makes no reference to loss or date of loss. Furthermore, the plaintiff argued that he was as innocent before the amendment as after and the presumption against retrospectivity only has application when prejudicial statutes are concerned, not beneficial ones.
In his analysis, Justice Pinto relied on the Supreme Court of Canada case R. v. Dineley and the rules of interpretation applicable in this case. The pertinent principles include that when substantive rights are concerned, new legislation is presumed to have only prospective effect unless the legislature has expressly intended otherwise. As well, whether the right is substantive or procedural in nature is a consideration in the analysis. His Honour agreed with the submissions of Aviva and found that the parties had entered into a contract of insurance, according to which Aviva had the substantive and vested right to deny coverage based on the Marijuana Exclusion clause. To retrospectively apply the amendment in this case would mean to look back into the contract and prejudicially affect Aviva’s ability to exclude a loss from coverage.
Summary Judgment was granted in favour of Aviva and RBC with costs. While the appeal is scheduled to proceed in November 2021, taking into account the analysis in the decision, it would be difficult for the Court of Appeal to overturn it.
The take-away from this case is that new legislation should not apply retrospectively when is more beneficial to one party and may prejudicially affect the substantive and vested rights of the other parties. Even if there likely is no guarantee for success in all cases, it is worthwhile considering if it is advantageous to push for same position or the opposite.
COURT DISCRETION & COSTS
If the successful party is an insurance company or not may direct which way the wind blows.
Przyk v Hamilton Retirement Group Ltd. (The Court at Rushdale) 2021 ONCA
The plaintiff in this matter (and respondent on appeal) claimed against the owners of the retirement home she lived in after she slipped and fell on a sidewalk between the entrance and exit of the home. Damages settled prior to trial, where the jury found no liability on the part of the defendant. Rushdale, as the successful party, sought a costs award on a partial indemnity basis. The trial judge denied the request on three grounds:
- The action, which required expert evidence, demonstrated that the law of negligence needed to adapt to the area of elder care.
- Rushdale had been defended by Aviva, which holds a large share of the Ontario insurance market. The case was a “David and Goliath situation.”
- Finally, the fact that Aviva never offered the plaintiff a settlement beyond a without-costs dismissal was an example of Aviva’s arrogant, “hardball” approach in defending claims. This approach was unfair to litigants of modest means and inconsistent with Aviva’s “social responsibility.”
Rushdale appealed the costs award.
The Court of Appeal declined to interfere with the costs award. The Court showed deference towards same although it stated that the trial judge’s decision reflected errors in principle. It would appear that factors such as (1) the existence of insurer behind a party; (2) availability of insurance in favour of a successful party at trial; (3) difference in financial positions between the successful party and the opposing party when any such financial advantage does not constitute an abusive tactic or misconduct; and (4) refusal to settle when the verdict proves such decision was reasonable, should not play a role in costs decisions.
The Court recognized, however, that, in general, the successful party is entitled to costs. By the same token, the Court reiterated that costs awards are always subject to the discretion of the court under the Courts of Justice Act. The factors which a Court may consider under Rule 57.01 of the Rules of Civil Procedure , although not exhaustive, relate to the nature of the issues in the litigation, the outcome of same, and the behaviour of the parties – not either party’s resources or identity.
That Aviva insured and defended Rushdale was no reason to deny a cost award. Denying a successful and insured party costs on the basis that doing so could threaten access to justice without considering whether there was improper conduct by the successful party that actually did interfere with access to justice would be wrong. Furthermore, labelling a plaintiff with a modest claim against an insured as a David and Goliath situation without looking at the context is also wrong. The Supreme Court has already stated that proceedings ought not to be stereotyped. And in any case a disadvantage can be levelled with contingency fee arrangements, third party litigation funding, or adverse costs insurance.
In the case at bar, the plaintiff was not denied access to justice. She was represented by experienced counsel at trial, who was praised by the trial judge. She also called experts. The plaintiff had adverse cost insurance and Rushdale’s request for costs was covered by the insurance available to her under that policy.
With respect to settlement, declining a cost award because Aviva had only offered a walk-away without costs was inconsistent with the Ontario Court of Appeal’s decision in Bell Canada v Olympia & York Developments Ltd:
The question is, what is reasonable when the claim is dismissed? The defendant’s position has been vindicated, and to deprive that party of the normal fruits of success is to say to all defendants that an offer to settle must be made simply because the lawsuit was launched. To put it another way, the trial judge cannot dispute the reasonableness of his own decision and, thus, cannot be critical of a party who anticipated it.
Notwithstanding the above, the trial judge had also denied costs because the case arose in an important societal and legal context – elder care and the need for the law of negligence to apply in these types of situation. Although not endorsing the trial judge’s decision per se, the Ontario Court of Appeal stated that the trial judge had not erred in principle with this latter approach. Brushing off the multitude of the other errors identified by the trial judge as noted above; it was on this independent basis only that original costs award was upheld and the appeal dismissed.
The take-away from this case could be the following: at the end of the day, costs awards are discretionary. As such the Court of Appeal will show deference to the trial judge’s decision. While the judge’s approach could be criticised on principle, ways to justify and uphold the same decision, if there is willingness to do so, will be found. Novelty, which in and of itself, may hardly be the only factor to tip the scale in the favour of one party, could in fact do so eventually. At the end of the day, the decision of whether or not to appeal could end up being an exercise in distinction without a difference from the financial point of view.
Porter v Aviva Insurance Company of Canada
On January 25, 2019, Kerry Porter slipped and fell on ice in her parents’ un-shovelled driveway while walking toward a stationary Lyft car. As she approached the car, parked less than halfway up the driveway, she put her hands out to touch the hood for stability. Before she could get in position to open the door, she fell and broke her leg in two places. Ms. Porter made a claim to Aviva Insurance Company of Canada (“Aviva”) for statutory benefits under the Statutory Accident Benefits Schedule , which denied her claim on the basis that the incident was not an “accident” s. 3(1).
Section 3(1) defines an accident as
an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis, or other medical or dental device.
The Licensing Appeal Tribunal (“LAT”) found that Ms. Porter’s injuries were the result of an accident within the meaning of s. 3(1) of the Schedule. Aviva requested a reconsideration of the decision and the LAT confirmed the previous order. Consequently, Aviva appealed to the Ontario Divisional Court.
Justice Bell allowed the appeal.
Whether there’s been an accident within the meaning of s. 3(1) of the Schedule involves a two part test:
- Did the incident arise out of the use or operation of an automobile (the “purpose test”); and
- Did such use or operation of an automobile directly cause the impairment (the “causation test”).
Justice Bell held that the LAT erred in its causation analysis. The dominant factor causing Ms. Porter’s fall was the icy, snow-covered driveway. That the Lyft car brought her to the location of the incident was insufficient to find that her fall was caused by its use or operation.
The key take-away here is that the fact that a car is somehow involved in a plaintiff’s injury will not be sufficient to ground a finding that the plaintiff was involved in an “accident” within the meaning of s. 3(1). Careful attention needs to be paid to the dominant factor in a plaintiff’s injury.
Dagenais v Slavko
This is a cluster of summary judgment motions in two companion actions. An employee driving to a work site pulled off the highway to grab a coffee. In the course of this stop, he collided with the plaintiff’s motor vehicle. The Court held that the employer was vicariously liable for the negligent operation of the vehicle driven by its employee, as he had been driving in the course of his employment.
Slavko Concrete Finishing Inc. (“Slavko”), operating out of the Ottawa area at the time, sent its employee, Guy Pellerin, to conduct the pour and finishing of a new concrete floor slab at a military base construction site in Petawawa, Ontario, about a two-hour drive west of Ottawa. Slavko was obliged to arrange the transport of its employees to distant locations like Petawawa by the governing collective agreement. Slavko arranged for the transport of five employees to the Petawawa site, however advised Mr. Pellerin that he was working separately from the others and would need to arrive to the site by noon. Mr. Pellerin drove his own car per his supervisor’s directions.
Before leaving Ottawa, Mr. Pellerin fueled up on gas, purchased a coffee, and may have run an errand. He then drove on Highway 17 towards Petawawa. During this drive, he stopped to grab a coffee in the Town of Renfrew. In the course of this stop, he drove into the plaintiff’s vehicle, injuring the plaintiff and her passenger. The various plaintiffs sought damages in the amount of $3.6 million, exceeding Mr. Pellerin’s $2 million insurance limit.
In granting the plaintiffs’ motions for summary judgment, Justice Kane noted that an employer is vicariously liable for torts falling within the “scope” or “course of employment” if the acts were:
- authorized by the employer; or
- unauthorized acts by the employee so connected to authorized acts that they may be regarded as modes, albeit improper modes, of doing an authorized act.
Justice Kane found that Mr. Pellerin was acting in the course of his employment while driving to Petawawa based on a number of factors:
- Slavko’s business operated outside of Ontario, including distant locations like Petawawa, requiring its employees to travel to these sites as part of the business.
- Slavko’s employees always went from their residence to the job site rather than attending Slavko’s office first.
- Slavko directed Mr. Pellerin to drive to Petawawa, work in Petawawa on its behalf, and then return to Ottawa. This direction required Mr. Pellerin to travel for four hours and 340 kilometers on its behalf.
- Pellerin was carrying the tools in his vehicle that he needed for his concrete finishing work.
- Pursuant to the collective agreement, Mr. Pellerin was entitled to payment for mileage and travel time (although Slavko did not fulfill its obligation to pay travel time for the subject date).
Mr. Pellerin’s use of his own vehicle, if not directed by Slavko, was authorized by Slavko given that it directed him to attend the worksite. Slavko did not present any evidence that it arranged for alternate travel, and Slavko had obligations to reimburse Mr. Pellerin for time and mileage.
Furthermore, Mr. Pellerin’s attempted turn and intention to stop, stretch, and grab coffee was a “mere deviation” or “brief detour” and “incidental” to his drive to Petawawa. Slavko did not prohibit its employees from making this kind of stop.
Slavko was held to be vicariously liable for Mr. Pellerin’s negligent operation of his vehicle, as the actions of Mr. Pellerin were:
- performed during the course of his employment;
- where authorized by the employer;
- in the alternative, if any such acts were unauthorized, Slavko was also responsible and liable based upon the policy analysis of fairness and deterrence.
The key take-away in this case is that courts will not define what is within the course of a plaintiff’s employment strictly according to the job description. Rather, they will consider the entire circumstances of an event, including an obligations that the employer may have to the employee pursuant to a Collective Agreement, even if the obligations are unmet.
Sheriffe v Aviva Insurance Company of Canada
In this brief LAT decision, the respondent was ordered to produce the insurance adjuster’s log notes from the date of the applicant’s car accident to the date of the within order. Vice Chair Ian Maedel held that the relevance of adjuster’s notes must be broadly construed and litigation privilege is not an absolute bar to the provision of same past the date of the application. The log notes “reflect the ongoing adjustment of the applicant’s claim for benefits and the decisions made by the adjuster throughout this process.” The documents were relevant and, with privileged portions redacted, had to be produced in their entirety.
Vice-Chair Maedal also drew a comparison between adjuster log notes and clinical notes and records. Neither are redacted for relevance only and parsing out specific portions of log notes would be inconsistent with the consumer protection nature of the Schedule and the applicant’s right to obtain the record of adjustment.
We would advise caution in relying on this LAT decision. We might conclude that the decision suggests that the adjuster’s notes are producible subject to certain redactions. We note that this decision is quite brief and the reasons are not particularly fulsome, but it is worth keeping in mind.
Kardaras v Sun Life Assurance Company of Canada
The plaintiff, Ms. Kardaras, was diagnosed with major depressive disorder with anxious features, leading her to take a medical leave from work beginning in September 2014. She received benefits from her short and long-term disability insurer, Sun Life Assurance Company of Canada (“Sun Life”) until she gradually tried to return to work in December 2015.
She had returned to working four days per week when her psychiatrist advised that her depressive disorder had worsened and she should only work three days a week. Sun Life terminated Ms. Kadaras’ benefits on January 25, 2016, the date she had been scheduled to return to work full-time. Ms. Kadaras initiated this action seeking a declaration that she was entitled to long-term disability benefits past the point that Sun Life terminated them.
Ms. Kadaras’ policy with Sun Life included two periods of coverage: the “own occupation period” and the “any occupation period.”
The “own occupation period” refers to the insured’s ability to perform the duties required in her own occupation:
During the elimination period and the following 24 months (this period is known as the own occupation period), you will be considered totally disabled while you are continually unable due to an illness to do the essential duties of your own occupation.
The “any occupation period” provides benefits if the insured is totally disabled from any occupation:
Afterwards, you will be totally disabled if you are continuously unable due to an illness to do any occupation which you are or may become reasonably qualified by education, training or experience.
Ms. Kadaras participated in a gradual return to work program under the insurance policy which had a goal of helping participants become capable of full-time employment:
You may be required to participate in a rehabilitation program approved by Sun Life in writing.
It may include the involvement of our rehabilitation specialist, part-time work, working in another occupation or vocational training to help you become capable of full-time employment.
The test for “total disability” is whether an insured is unable to perform “substantially all of the duties of that position.” It does not mean absolute physical disability, but that common care and prudence require the insured to cease her occupation given her injuries.
Justice O’Brien held that Ms. Kadaras met the requirements for payment in the “own occupation period”, but not the “any occupation period”.
Although physically able to work above three days per week, doing so would worsen her depressive disorder. There was no doubt about her diagnosis: Ms. Kadaras had a long history of depression that worsened in September 2014 after her father passed away and her mother was diagnosed with cancer. Her treating psychiatrist advised her to stop working and Ms. Kadaras’ condition improved through 2015. She was monitored closely during her attempted return to work, and ultimately her psychiatrist recommended that she work three days a week to prevent her from having to withdraw from the work force entirely.
Sun Life, when advised of this, maintained that she could return to work on the scheduled date. Ms. Kadaras appealed the decision and Sun Life rejected the appeal and discontinued her benefits. Sun Life relied on evidence of a health management consultant who took carriage of Ms. Kadaras’ file that she was not returning to work full-time because she wanted a better work/life balance.
Justice O’Brien preferred Ms. Kadaras’ psychiatrist’s evidence: “An insured person who is in recovery and has been medically advised to return to work at a reduced level should not be considered to be making a “lifestyle choice.””
The psychologist Sun Life retained also agreed with Ms. Kadaras’ treating psychiatrist. The surveillance evidence produced by Sun Life similarly did not persuade Justice Chalmers that Ms. Kadaras was capable of working in her own occupation. Ms. Kadaras’ supervisor attested to her inability to perform the essential duties of her work during the days she did attend – she broke down in his office, was slower, and her work was limited to non-intensive and non-detailed-oriented tasks.
Taken together, the evidence supported a finding that Ms. Kadaras was not capable of performing the essential duties in her own occupation or performing substantially all of the duties of her position.
However, she was not entitled to benefits during the “any occupation.” The job she had at the time of trial, working three days per week, was reasonably comparable to her old occupation in status and reward, in addition to being suitable given her education, training, and experience. She held the same title as her old role, performed some of the same tasks, and earned around 73% of her previous income.
Finally, Justice O’Brien held that Sun Life breached its duty of good faith to Ms. Kadaras for the following reasons:
- Sun Life adopted the position that Ms. Kadaras sought work/life balance and maintained it during trial despite the overwhelming evidence of her disability.
- Sun Life discontinued her benefits without sufficient medical evidence as to her state and held onto that position even though it was never provided an opinion from a doctor that contradicted her psychiatrist’s position. It did so while Ms. Kadaras was participating in the gradual return to work program.
- Sun Life also failed to show an open mind when reviewing additional medical documentation and oversimplified her condition.
Justice O’Brien awarded damages for Ms. Kadaras’ mental distress arising out Sun Life’s breach of the duty of good faith. That she would experience mental distress in response to Sun Life’s approach to her claim was reasonably foreseeable; when long-term disability payments are made under a policy, the insured is in a period of vulnerability. For someone with anxiety and depression, they may be especially vulnerable to and stressed out by unfair treatment. The level of mental distress she experienced was sufficient to warrant compensation.
Ms. Kadaras was awarded $12,037 for the “own occupation period” amount owing and $10,000 for mental distress damages.
The key-takeaway in this case is that insurers should be careful to periodically evaluate coverage positions as information is learned throughout the duration of an action and into trial.
 2021 ONCA 413.
 Ibid at para. 2.
 Tataryn v. Axa Insurance Canada, 2020 ONSC 375 (CanLII) at paras. 1 and 2.
 Ibid at para. 4
 Ibid at para. 18.
 Bawden v. Wawanesa Mutual Insurance Company, 2013 ONSC 1618, 116 O.R. (3d) 9 at paras. 15 and 16; and 2091533 Ontario Limited v. Vertigo Investments Limited, 2013 ONSC 2731, 115 O.R. (3d) 457 at paras. 14 and 15.
 Black’s Law Dictionary, 6th ed. (St. Paul, Minnesota, West Publishing Co., 1990).
 Tataryn v. Axa Insurance Canada, 2020 ONSC 375 (CanLII) at para. 23.
 2020 ONSC 7137.
 R.S.O. 1990, c. I. 8.
 Lin v Aviva General Insurance Company, supra note 9 at para. 35.
 Ibid at para. 35.
 Lin v Aviva General Insurance Company, supra note 9 at para. 39.
 Lin v Aviva General Insurance Company, supra note 9 at para. 40.
 Ibid at paras. 43 and 46.
 2021 ONCA 267 [“Przyk”].
 Ibid at paras. 2 to 4.
 Ibid at paras. 7 and 8.
 Ibid at para. 11.
 Ibid at para. 12.
R.R.O. 1990, Reg. 194.
 Przyk, supra note 17 para. 18.
 Ibid at para. 16.
 Ibid at para. 19.
 Kerr v Danier Leather Inc., 2007 SCC 44.
 Przyk, supra note 17 para. 20.
 Ibid at para. 21.
 Ibid at para. 22.
 1994 CanLII 239 (ONCA) [“Bell Canada”].
 Przyk, supra note 17 at para. 27, citing Bell Canada.
 Przyk, supra note 17 para. 34.
 2021 ONSC 3107
 O. Reg 34/10, a regulation made under the Insurance Act, R.S.O. 1990, c. I. 8 [the “Schedule”].
 Ibid at para. 11, citing Chisolm v Liberty Mutual Group, (2002) O.R. (3d) 776 and Greenhalgh v ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA).
 2021 ONSC 3415 [“Dagenais”].
 Ibid at para. 55, citing Bazley v Curry, 1999 CanLII 692 (SCC).
 Justice Kane also agreed with the plaintiffs that Slavko was vicariously liable for Mr. Pellerin based on the doctrine of respondeat superior. The doctrine holds that “It is fair and not unjust that he who selects the agent and will have the benefit of the agent’s services if efficiently performed should bear the risk of the agent’s negligence in ‘matters incidental to the doing of the acts, the performance of which have been entrusted to him.’” Dagenais, supra note 11 at para. 57.
 2021 CanLII 19405.
 Ibid at para. 11.
 2020 ONSC 3925.
 Ibid at para. 9.
 Ibid at para. 10.
 Ibid at para. 11.
 Ibid at para. 12, citing Paul Revere Life Insurance v Sucharov, 1983 CanLII 168 (SCC).
Ibid at para. 36.