Johnson v. Aviva Insurance Co. of Canada, 2014 ABQB 688

• Judge: Campbell, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 26, 2014
• Citations: 2014 ABQB 688;(2014), 601 A.R. 157 (QB)

Johnson v. Aviva Ins. (2014), 601 A.R. 157 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.098

Jeffrey Johnson, also known as Jeff Johnson (applicant) v. Aviva Insurance Company of Canada (respondent)

(1401 00467; 2014 ABQB 688)

Indexed As: Johnson v. Aviva Insurance Co. of Canada

Alberta Court of Queen's Bench

Judicial District of Calgary

Campbell, J.

November 12, 2014.

Summary:

Semenchuk was injured in a floor hockey game organized by the Calgary Sport and Social Club (CSSC), in which she and Johnson were participants. Semenchuk sued Johnson for damages for personal injuries which she alleged were caused by his conduct during the game (the action). CSSC was insured by Aviva Insurance. The policy coverage extended to any member of the CSSC participating in a sanctioned sporting event, subject to certain exclusions. Johnson applied for a declaration that Aviva was obliged to defend him in the action and that Aviva had to pay a pro rata share of the expenses that he had incurred to defend himself in the action from July 2011 until the date Aviva began defending the action.

The Alberta Court of Queen's Bench allowed the application and granted the declarations sought.

Insurance - Topic 725

Insurers - Duties - Duty to defend - The Alberta Court of Queen's Bench reviewed the legal principles applicable in determining whether an insurer has a duty to defend - See paragraphs 17 to 20 - The court noted that where a party pleaded both an intentional tort, which was excluded from coverage, and a non-intentional tort, which was covered, the court would undertake an analysis of whether the claim for negligence was derivative of the intentional tort - See paragraph 17.

Insurance - Topic 725

Insurers - Duties - Duty to defend - The Alberta Court of Queen's Bench stated that "Where pleadings are not sufficiently precise to determine whether the claim would be covered by the policy, according to Monenco [SCC 2001], 'the insurer's obligation to defend will be triggered where, on a reasonable reading of the pleadings, a claim within coverage can be inferred'. That is, any doubt as to whether the pleadings bring the incident under the Policy's coverage is to be resolved in the insured's favor" - See paragraph 33.

Insurance - Topic 725

Insurers - Duties - Duty to defend - [See Insurance - Topic 6878 ].

Insurance - Topic 6878

Liability insurance - Business - Comprehensive policy - Duty to defend - Semenchuk claimed that she was injured in a floor hockey game at a sport club due to the conduct of another participant, Johnson - Semenchuk sued Johnson - Johnson applied for a declaration that the club's insurer, Aviva, was obliged to defend - Aviva claimed that Semenchuk's allegations related to intentional conduct and were thus excluded from coverage (Exclusion 2(a)) - The Alberta Court of Queen's Bench granted the declaration - It was arguable that the pleadings gave rise to two actionable torts, one intentional and the other non-intentional - The court found that there was a mere possibility that at trial the claim for injuries based on the intentional tort could fail and the negligence claim succeed - As a negligence claim was available as a basis for Johnson's liability, the claim would not be excluded by the policy - It was that possibility that gave rise to a determination that Aviva had a duty to defend - See paragraphs 29 to 38.

Cases Noticed:

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. 15].

Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, [2010] 2 S.C.R. 245; 406 N.R. 182; 293 B.C.A.C. 1; 496 W.A.C. 1; 2010 SCC 33, refd to. [para. 16].

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. 17].

Rocky Mountain House (Town) v. Alberta Municipal Insurance Exchange et al. (2007), 428 A.R. 169; 2007 ABQB 548, refd to. [para. 18].

Unrau v. Canadian Northern Shield Insurance Co. (2004), 205 B.C.A.C. 91; 337 W.A.C. 91; 262 D.L.R.(4th) 186; 2004 BCCA 585, refd to. [para. 18].

Tedford v. TD Insurance Meloche Monnex (2012), 292 O.A.C. 374; 2012 ONCA 429, refd to. [para. 20].

Economical Mutual Insurance Co. v. Lloyd's Underwriters et al., [2014] B.C.T.C. Uned. 979; 2014 BCSC 979, refd to. [para. 22].

Monenco Ltd. et al. v. Commonwealth Insurance Co. et al., [2001] 2 S.C.R. 699; 274 N.R. 84; 155 B.C.A.C. 161; 254 W.A.C. 161; 2001 SCC 49, refd to. [para. 33].

Counsel:

David P. Wedge (Parlee McLaws LLP), for the respondent;

Raymond S. Wong (Field Law), for the applicant.

This application was heard in Calgary, Alberta, on September 26, 2014, before Campbell, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision on November 12, 2014.