Canada: Home Insurance Coverage for a Workplace Injury?

For those of you that did not know, if I was not a lawyer, I would be rocking out on a stage singing and doing all things musical.  Which is why this case is interesting to me on a number of different levels.  If you are having an after-hours jam session at your office and an injury occurs, is there coverage under your home insurance policy for the injury?  According to the following decision, there is!

Aviva Insurance Company v. Intact Insurance Company, is a recent 2018 decision by the Ontario Superior Court of Justice about whether a home insurance policy should be contributing towards a workplace injury.  The case addresses the importance of pleadings, res judicata and coverage issues, which are all interesting issues in the insurance realm. 

Aviva brought an application to compel the home insurer Intact to contribute to costs regarding defending and settling a liability claim against their mutual insured Sanjay Patel.  Patel had insurance as follows:

  1. RSA offered insurance to Patel as a principal of the engineering firm where the incident took place;
  2. Aviva, insurer of the company owning the building which was controlled by Patel; and
  3. Intact, Patel's home insurer.

Aviva and RSA offered a defence regarding the injuries sustained by Patel's friend Novak, when he fell off of a ladder during an after-hours jam session held at the Engineering company. 

Prior to the settlement, RSA had sought to compel Intact to provide a defence, but an applications judge, after reviewing the other insurance policies, held that Intact had no duty to defend, since it was an excess insurer.  Accordingly, given this decision, res judicata, was asserted, which is the principle that a cause of action may not be relitigated once it has been judged on the merits. 

Both the RSA and Aviva policies, had "other insurance" clauses.

Intact's other insurance clause was as follows:

Insurance Under More Than One Policy

If you have other insurance which applies to a loss or claim, or would have applied if this policy did not exist, this policy will be considered excess insurance and we will not pay any loss or claim until the amount of such other insurance used up.

The Statement of Claim does not distinguish between the various capacities in which he was or could have been acting at the time of the loss.  This is important because the Claim does not trigger one particular type of coverage.  Patel was liable therefore as principal of the numbered company which owned the building where there engineering company was housed.   He was exposed as principal of the engineering company  and he was exposed personally, because he had invited Novak to his building for an after-hours jam session unrelated to his business.

Patel sought coverage from each of the 3 insurers.  Aviva and RSA acknowledged their duty to defend Patel, but issued a reservation of rights letter in the event that Patel was liable in his personal capacity. 

Intact refused to defend Patel.  In an application brought for coverage by Patel as against Intact, it was stated that the Intact policy would be considered excess insurance and would not respond until the amount of such insurance is used up.  Because coverage had not been exhausted, there was no obligation for Intact to defend. 

Settlement was reached at a private mediation.  Intact was invited to participate at the mediation, as Aviva indicated that the Aviva policy specifically excludes any personal liabilities of Patel.  However, Intact took the position that the policy was excess and would not be triggered.

The action was settled for $380,000.00 all inclusive, with 1/3 split against Patel in his personal capacity.  The funding for the personal interest was split on a 50:50 basis by Aviva and RSA.  Aviva went on to seek reimbursement for Intact's proportionate share of costs incurred by Aviva in defending Patel in his personal capacity and for Intact's proportionate share of the settlement of the underlying action paid by Aviva for Patel's personal liability. 

It was found that notwithstanding the application, the issue of Intact's duty to indemnify had never been fully decided.

Accordingly, the doctrine of issue estoppel would not apply because it would create an injustice.

Reference was made to Family Insurance Corp. v. Lombard, a 2002 decision of the Supreme Court of Canada, which adopted the following principles from Ivamy's General Principles of Insurance Law (6th ed. 1993) as establishing the right to contribution among insurers where there are overlapping policies:

  1. All the policies concerned must comprise the same subject‑matter.
  2. All the policies must be effected against the same peril.
  3. All the policies must be effected by or on behalf of the same assured.
  4. All the policies must be in force at the time of the loss.
  5. All the policies must be legal contracts of insurance.
  6. No policy must contain any stipulation by which it is excluded from contribution.

Aviva's position was as follows:

Aviva submits that the Aviva and Intact policies are not overlapping, as they fail parts (1) and (2) of the Ivamy test. The subject matter and the peril insured against by the Intact policy is the personal liability of Patel, with a specific exclusion of coverage for Patel's business pursuits. The subject matter of the Aviva policy and the peril insured against is the corporate liability of Patel as a principal of 1062220, with a specific exclusion of coverage for Patel's personal actions. As such, the policies never overlap, and the Intact policy could never be excess coverage over the Aviva policy.

Furthermore, it was held that Aviva's policy was not overlapping but complementary in that they each respond to separate allegations relating to separate risks; personal and corporate.  Therefore, it was found that Intact wrongfully failed to provide a defence and failed to indemnify Patel for loss caused by him in his personal capacity. 

However, should Intact be allowed to question the allocation of the 1/3 split, given that it had declined to participate in the mediation? 

The following was held:

Intact took a significant risk by not attending the mediation given that: (a) Intact had a duty to defend; (b) Aviva did not participate in the previous application, (c) res judicata might not apply as it is a discretionary doctrine, (d) the Supreme Court's decision in Family Insurance was not raised before the application judge, and (e) the issue of indemnification had never been addressed.  In these circumstances, Aviva and RSA were free to settle without Intact's approval provided that they acted reasonably and in good faith in settling the action.

Lastly, it was found that there were equitable grounds for Intact to contribute to the defence and settlement, relying on unjust enrichment.

In Conclusion

Intact had still not decided whether it would be appealing this decision. 

It is likely that RSA will be asserting a similar motion if RSA and Intact cannot agree on similar terms.

It really all comes back to first principles and looking at the pleadings to determine what type of coverage is afforded.  Notwithstanding the "other insurance" clauses, the pleadings asserted a loss in part in Patel's personal capacity and therefore, triggered coverage under the home insurance policy. 

Accordingly, I ensure that all of my music jam sessions are at home, under one policy of insurance!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions