Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Insurance - Insurer’s duty to defend - Insurer’s right to appoint defence counsel - Whether the Court of Appeal for Ontario erred by finding the “anti-concurrent causation” or “concurrent exclusion” clause found in the applicant’s fungi and fungal derivatives exclusion to be ambiguous in effect - Whether the Court of Appeal for Ontario erred by removing the Applicant’s right to appoint defence counsel of its choosing and to control the defence - Whether the Court of Appeal for Ontario erred by permitting the Respondent’s insurance coverage counsel to be appointed as defence counsel.

In 2004, Daniel Simms began working as the superintendent of a building owned by the Respondent, Appin Realty. He occupied an apartment in the building and alleges that he became very ill as a result of the presence of toxic mould and bacteria in the unit. He began legal proceedings against Appin for negligence and breach of contract. Appin’s insurance provider, the Applicant, Economical Mutual Insurance Company, (“EMI”) refused to defend Appin, claiming its insurance policy did not require it to defend claims for bodily injury arising from mould and bacteria.

The Ontario Superior Court of Justice found that EMI did have a duty to defend in this case and found that Appin was entitled to choose its own defence counsel. The Court of Appeal dismissed EMI’s appeal.