Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada et al., (2006) 211 O.A.C. 363 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 10, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 211 O.A.C. 363 (SCC);2006 SCC 21;JE 2006-1123;[2006] SCJ No 21 (QL);[2006] RRA 523;EYB 2006-105962;147 ACWS (3d) 1058;[2006] 1 SCR 744;267 DLR (4th) 1;36 CCLI (4th) 161;348 NR 307;211 OAC 363

Jesuit Fathers v. Guardian Ins. (2006), 211 O.A.C. 363 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] O.A.C. TBEd. JN.032

Jesuit Fathers of Upper Canada (appellant) v. Guardian Insurance Company of Canada and ING Insurance Company of Canada (respondents)

(30709; 2006 SCC 21; 2006 CSC 21)

Indexed As: Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Charron, JJ.

June 1, 2006.

Summary:

At issue was the defendant insurer's duty to defend.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 976, held that the insurer had no duty to defend respecting certain plaintiffs because no claim had been made within the policy period. The insured appealed.

The Ontario Court of Appeal, in a decision reported at 192 O.A.C. 102, dismissed the appeal. The insured appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Insurance - Topic 725

Insurers - Duties - Duty to defend - At issue was whether an insurer had a duty to defend its insured, the Jesuit Fathers of Upper Canada, against certain allegations of abuse at a residential school - The Supreme Court of Canada affirmed that the insurer had no duty to defend - The policy was a claims' made policy - In order to engage the insurer's duty to defend, it required, at the very least, the communication by a third party during the policy period of an intention to hold the insured responsible for damages - Such an intention was not communicated during the policy period and, as a result, the insurer did not have a duty to defend the actions.

Insurance - Topic 725

Insurers - Duties - Duty to defend - At issue was whether an insurer had a duty to defend its insured, the Jesuit Fathers of Upper Canada, against certain allegations of abuse at a residential school - The Supreme Court of Canada affirmed that the insurer had no duty to defend - The policy was a claims' made policy - The identity of the victims was discovered by Mary Wells, the Jesuits' investigator - She was informed of their names by Mundy during an interview - Mundy gave names of individuals who, in her view, had been victims of abuse at the school - Nothing in the record suggested that Mundy had the named victims' permission to communicate this information - Consequently, Mundy could not make a claim within the meaning of the policy - Moreover, a claim would need to communicate an intention to hold the Jesuits responsible for injuries suffered at the school - Without the victims' permission, either express or implicit, Mundy could not communicate such an intention on their behalf - See paragraphs 59 and 60.

Insurance - Topic 7628

Professional liability insurance - Scope of coverage - Policy period - "Claims made" -Meaning of - [See both Insurance - Topic 725 ].

Cases Noticed:

Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; 147 N.R. 44; 83 Man.R.(2d) 81; 36 W.A.C. 81, refd to. [para. 23].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 27].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488, refd to. [para. 29].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 32].

Warhol (Andy) Foundation for the Visual Arts Inc. v. Federal Insurance Co. (1999), 189 F.3d 208 (2nd Cir.), p. 216 [para. 51].

Nichols v. American Home Assurance Co. et al., [1990] 1 S.C.R. 801; 107 N.R. 321; 39 O.A.C. 63, refd to. [para. 54].

Authors and Works Noticed:

Appleman, John Allan, Insurance Law and Practice (2nd Ed.) (2005), §146 [para. 26].

Holmes, Eric Mills, in Appleman, John Allan, Insurance Law and Practice (2nd Ed.) (2005), §146 [para. 26].

Reid, Linda Thompson, Report for Ontario Committee on Sexual Abuse, Statement to the Jesuits on Behalf of the Survivors of the Child Sexual Abuse By The Jesuit Priest (1992), generally [para. 6].

Counsel:

Donald G. McLean, Q.C., Wally Zimmerman and Eugene Meehan, Q.C., for the appellant;

Vernol I. Rogers and Thomas J. Donnelly, for the respondents.

Solicitors of Record:

Zimmerman Lawyers, Hamilton, Ontario; Lang Michener, Ottawa, Ontario, for the appellant.

Cassels Brock & Blackwell, Toronto, Ontario, for the respondents.

This appeal was heard on January 10, 2006, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Charron, JJ., of the Supreme Court of Canada. LeBel, J., delivered the following decision in both official languages for the court on June 1, 2006.