The recent Court of Appeal decision of Seidel v.
Markham1 involved a claim where the plaintiff
alleged that he had slipped and fallen on an icy sidewalk in the
City of Markham (the "City"). The subject sidewalk was
ploughed and salted by V.T.A. Construction ("V.T.A.")
pursuant to their contract with the City.
Pursuant to the winter maintenance contract, V.T.A.'s
insurance policy with Intact Insurance ("Intact") named
the City as an additional insured, "but only with respect to
the legal liability arising out of the operations of
The City issued a third party claim against Intact seeking a
declaration from the Court that Intact owed the City a defence.
An Assumption of Defence agreement was subsequently drafted by
the City but never signed; however, counsel for V.T.A. delivered a
Notice of Change of Lawyer confirming that it would represent both
the City and V.T.A. in the action.
Sixteen months later, counsel for V.T.A. brought a motion to
remove itself as counsel of record for both V.T.A. and the City.
New counsel was subsequently appointed for V.T.A. but not the
In response, the City brought a motion seeking to enforce its
"settlement agreement" and Intact's obligation to
defend and indemnify the City. The motion was dismissed by Glass J.
on the grounds that there had been no "meeting of the
minds" in relation to indemnification of the City.
The Court of Appeal reversed the motions judge's decision,
holding that the appointment of one counsel to represent both the
City and V.T.A. was sufficient to demonstrate that an agreement was
in place. The Court found that:
Intact's appointment of a single firm to represent both
Markham and V.T.A. could not have occurred if V.T.A. and Markham
continued to be adverse in interest... The fact that BPB was
appointed to represent both defendants and in fact did represent
them in litigation until discoveries had been completed was only
consistent with one meaning, namely, that Intact had agreed to both
defend and indemnify Markham, including in respect of its own
negligence unrelated to V.T.A.'s acts or
In sum, Intact's appointment of a single firm to represent
both defendants demonstrated support for the fact that it had
agreed to defend and indemnify the City. If it had been
Intact's intention to deny indemnification, two counsel would
be required to represent each of the City and V.T.A. since there
would have been an "obvious and untenable" conflict of
interest. Intact was therefore ordered by the Court to appoint
counsel to defend the City at its expense and indemnify the City
with respect to any damages awarded against it in the main
1. Seidel v. Markham (Town), 2016 ONCA 306
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