Non-Waiver Agreements, Reservation of Rights Letters and Approach to Resolving Coverage Issues.
When an insured makes a claim under a policy of insurance, insurers are faced with a choice regarding their duty to defend and indemnify. There is always the possibility that information will be presented which allows the insurer to deny coverage or prove that the policy has been breached. The insurer must decide at the outset whether it will indemnify the insured (risking a later determination that the coverage did not require them to do so) or, alternatively, deny coverage and risk exposure for breach of contract (as a result of failure to indemnify the insured as required by the policy).
In the event that the insurer proceeds with its investigation, it could later be deemed to have waived its right to deny coverage, or estopped from asserting a denial. To avoid the pitfalls of waiver and estoppel, insurance companies have long been utilizing non-waiver agreements. A non-waiver agreement can operate to delay its decision on affirmation or denial of coverage.
The question for lawyers is whether these agreements are valid and, if so, how may they be used to reduce insurer obligations to the insured. Lawyers grapple with the question of whether there are alternative means to achieve the same protection without the acquiescence of the insured.
What is a Non-Waiver Agreement?
An insurer does not want to have its right to deny coverage waived, nor does it want to be estopped from asserting a denial of coverage. If an insurer does not, from the outset, expressly and properly establish its expectations regarding its intention to retain the ability to deny coverage, it may inadvertently waive its right to do so in the future. A non-waiver agreement is a method by which an insurer can avoid the pitfalls of waiver and estoppel.
The doctrine of waiver was defined in the Alberta Court of Appeal case of Mitchell & Jewell Ltd. v. Canadian Pacific Express Co. in the following manner:
...waiver ... arises where one party to a contract, with full knowledge that his obligation under the contract has not become operative by reason of the failure of the other party to comply with a condition of the contract, intentionally relinquishes his right to treat the contract or obligation as at an end but rather treats the contract or obligation as subsisting. It involves knowledge and consent and the acts or conduct of the person alleged to so have elected, and thereby waived that right, must be viewed objectively and must be unequivocal.
The doctrine of estoppel is similar to waiver in that it provides a bar from an insurer accepting a claim and later denying coverage. The British Columbia Court of Appeal in the decision of Ashe Trucking Ltd. v. Dominion Insurance Corp. adopted the following test for estoppel:
- a representation or conduct amounting to a representation made by the defendant;
- which was intended to induce the plaintiff to act upon it; combined with
- actual reliance by the plaintiff upon the representation to his detriment.
At its very core, a non-waiver agreement is a simple document in which an insurer establishes a baseline from which to proceed with its investigation. The purpose of a non-waiver agreement is to provide an insurer the ability to deny coverage should it be determined during its investigation that the policy has been breached.
Further, it allows the insurer to subsequently seek indemnification from an insured for all costs or other amounts paid out in settlement or judgment under the claim should there be a later determination of non-coverage. For example, if an insurer defends the claim and pays out a sum in settlement, but later determines that the claim was not covered under its policy, the insurer could recover the settlement costs from the insured. Examples of circumstances in which an insurer may seek a non-waiver agreement to allow ongoing determination of coverage may include:
- Breach of the terms and conditions of the policy;
- Misrepresentation(s) or failure to disclose material information;
- Type(s) or claim(s) or losses being of the type either excluded from, not falling within the scope of coverage afforded by the policy, or only partially covered by the policy; and
- Accrual of the limitation period.
An effectively drafted non-waiver agreement should define the incident, state that it is investigating the incident for coverage, and that it will postpone an insurer's decision on coverage. In Harrison v. Ocean Accident & Guarantee Corp. Ltd, the court defined the purpose of a non-waiver agreement as:
The purpose of the agreement is quite obvious. There is an action against the administratrix to be defended. The action may or may not involve liability of the insured, against which the policy promises indemnity, and it may be that, whether it does or does not, there are circumstances already known, or that may be discovered, that entitle the insurer to be relieved of liability to the insured on the policy. With matters in this condition the insurer and the insured consider it the wiser course, instead of immediately fighting each other, to defend the claimant's lawsuit and find out first whether or not there was really anything for them to fight with each other about. [Emphasis Added]
The jurisprudence on non-waiver agreements is such that a validly constructed non-waiver agreement should include:
- A description of the claims or allegations, including details of the facts available;
- Reference to the specific policy particulars upon which an insurer relies as potentially precluding coverage, including an explanation of how that might apply;
- Consent that an insurer may investigate, negotiate, settle and/or defend all claims or actions and that an insurer doing so will not give rise to a claim of waiver or estoppel;
- An explanation of the investigation and/or steps (e.g., defence, negotiation, settlement) an insurer will be taking before reaching the final decision on coverage, and perhaps a timeline for when the decision on coverage will be made;
- An acknowledgement that an insurer may later deny coverage and seek to recover any amounts paid out in settlement, judgment, etc., in the event there is no coverage under the policy;
Identification of issues that might give rise to a potential conflict of interest between an insurer and its insured, if appropriate; and
An acknowledgement that an insured has read and understood the agreement and, perhaps, has been given the opportunity to seek legal advice before signing.
Insurers are typically careful in the preparation of these documents so as to ensure that those requirements are met, although, in some cases, insurers have been known to prepare them hastily and without detail. A court may not rely on an agreement if the appropriate criteria are not satisfied. In Zurich Insurance v. Crawford the court did not enforce the agreement and found that the agreement was drafted in such a way that the parties were not in equal positions of understanding when the document was executed.
An insurer will always prefer to have a non-waiver agreement in place to allow the flexibility of fulfilling its obligations under a policy while, at the same time, protecting its own interests. Courts have commonly accepted non-waiver agreements as they represent consent by an insured and allow the balancing of competing interests. One of the most interesting features of a validly constructed non-waiver agreement is that it provides an insurer with the ability to negotiate and settle claims. By retaining the ability to defend against a claim, the insurer can also negotiate a settlement of a claim on behalf of its insured. This becomes interesting should coverage later be denied because the insurer also retains the ability to recover any such settlement from its insured in the event of non-coverage under the policy.
Should the plaintiff sign a Non-Waiver Agreement?
An insurer is guided by its own motivation to protect itself. The lawyer for an insurer will attempt to limit that insurer's liability for as many costs and losses as possible.
On the other hand, an insured should be concerned about the protection of its own rights. An insured should request clarification of the reasons for which the insurer is considering denying coverage. Prior to executing a non-waiver agreement, an insured should seek legal advice as to the legal effect of the non-waiver agreement on their ability to enforce the coverage provisions of the policy.
In most cases, an insured should not sign a non-waiver agreement. However, there are circumstances in which an insured may wish to do so. For example, there are significant benefits to an insured when the insurer provides and pays for a defence.
Generally speaking, an insured has no obligation to execute a non-waiver agreement and will not likely be prejudiced by declining to execute such a document. However, from a practical perspective, an insured may be willing to sign a non-waiver agreement in order to avoid the issuance of a Reservation of Rights Letter, as described below.
Reservation of Rights
An insurer has a variety of other legal options at its disposal which can preserve its rights. One option is to prepare a reservation of rights letter. Another option is for an insurer to deny coverage and join the action as a third party, as discussed later in this paper. Another option is to have a court determine coverage under the policy before the completion of the investigation.
What is the effect of a Reservation of Rights Letter? Are Reservations of Rights Letters Valid?
In contrast to a non-waiver agreement, the reservation of rights letter is a unilateral document. Generally, it is prepared by an insurer in situations in which its insured will not execute a non-waiver agreement. The purpose of a reservation of rights letter is to set out the intentions of an insurer while it undertakes an investigation as to the validity of coverage. From the insurer’s perspective, it postpones the determination of admitting coverage until such investigation is complete. The problem that arises with these letters is that courts, generally, will not enforce a denial of coverage on the basis of the letter alone. In the 1972 Ontario Court of Appeal decision in Allstate Insurance Co. v. Foster, the court quoted from London Assurance v. Jonosson, and Jessup, J .A. stated:
I think the parties to an automobile insurance policy are free to agree that proof of such evidentiary facts is not required to be made in a suit under the subsection" (the present s. 225(13)) - and the present s. 221 make it abundantly clear that there are only two ways in which the rights of the parties may be preserved- either by means of a judgment under s. 225 or by an agreement between the parties. There is no such agreement in the reservation of rights letter forwarded by the insurer to the insured. It is a strictly unilateral arrangement and at no time did the insured agree to any of the terms set out in it.
In certain circumstances, however, the court has allowed the insurer to rely on a reservation of rights letter. The letter must be carefully drafted in order to conform with the format accepted by the courts, and must include the same information required for non-waiver agreements (see page 2 of this paper). In Hersh v. Wawanesa Mutual Insurance Co., where a reservation of rights letter was accepted, the court determined:
In my view, the reservation of rights letter makes it clear that the recovery of costs under the policy is not admitted and is not causally connected to the undertaking of the defence. However, if I am wrong in making this finding, a further determinative issue is whether the opening words of cl. II, namely, "As respects insurance afforded by this policy", limit the obligation to pay the costs taxed against the insured to those circumstances where the claims against the insured are within the limits of coverage under the policy…
In the result, I conclude that Wawanesa's obligation to pay taxable costs arises only if the policy affords coverage for the judgment. It is conceded by the petitioners that no such coverage exists. Therefore, there is no obligation on Wawanesa to pay the taxable costs which the petitioners were ordered to pay in the Lee action.
The effectiveness of a reservation of rights letter depends upon the clarity of the explanation of the specific situation, the amount of information provided, the grounds for denial of coverage, and the point in time at which the letter is prepared. It is important to note courts have shown more willingness to accept a reservation of rights letter when a non-waiver agreement had been sought, but the insured did not execute it.
What is the effect of a Non-Waiver Agreement or a Reservation of Rights letter on the insurer's duty to defend and duty to indemnify?
The duty to defend and the duty to indemnify arise from the terms and conditions of the insurance policy itself. The duties are separate, yet related. The duty to defend is broader and only arises in situations where the requirement to indemnify is possible. The duty to defend arises from allegations made against the insured. On the other hand, the duty to indemnify arises from the facts which support the claim. The Supreme Court of Canada outlined the duty to defend in 1990 in Nichols v. American Home Assurance Co. as follows:
Thus far, I have proceeded only by reference to the actual wording of the policy. However, general principles relating to the construction of insurance contracts support the conclusion that the duty to defend arises only where the pleadings raise claims which would be payable under the agreement to indemnify in the insurance contract. Courts have frequently stated that "[t]he pleadings govern the duty to defend": Bacon v. McBride (1984), 6 D.L.R. (4th)
96 (B.C.S.C.), at p. 99. Where it is clear from the pleadings that the suit falls outside of the coverage of the policy by reason of an exclusion clause, the duty to defend has been held not to arise: Opron Maritimes Construction Ltd. v. Canadian Indemnity Co. (1986), 19 C.C.L.I. 168 (N.B.C.A.), leave to appeal refused by this Court, 1987] 1S.C.R. xi. At the same time, it is not necessary to prove that the obligation to indemnify will in fact arise in order to trigger the duty to defend. The mere possibility that a claim within the policy may succeed suffices. In this sense, as noted earlier, the duty to defend is broader than the duty to indemnify…
Other Canadian authority overwhelmingly supports the view that normally the duty to defend arises only with respect to claims which, if proven, would fall within the scope of coverage provided by the policy…
The same view generally prevails in the United States…
The Supreme Court of Canada in Non-Marine Underwriters, Lloyd's of London v. Scalera, has more recently laid out a three-part test to determine if the duty to defend exists:
To be somewhat more prosaic, what p. 810, McLachlin J. cited with approval O'Sullivan J.A.'s direction to look at "the nature of the claim made”.
The application of the three-part test continues to be developed by the courts. In the 2008 Ontario Court of Appeal decision in Aviva Insurance Company of Canada v. Pizza Pizza Limited, the court elaborated on the necessity of investigating the contents of the pleadings:
The proper basis for determining whether a duty to defend exists in any given situation requires an assessment of the pleadings to ascertain the substance and true nature of the claims: see Monenco v. Commonwealth Insurance Co., 2001 SCC 49 (CanLII),  2 S.C.R. 699 at para. 35.
Similarly, in Non-marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII),  1 S.C.R. 551 at para. 50, the court stated that in a duty to defend analysis, "a court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings."
Applying this test, in our view the alleged 'non-automobile' claims in the underlying action are in fact caught by the exclusion in Aviva’s policy. The precipitating and most important cause of the plaintiffs’ injuries was the delivery driver's alleged negligence, not the negligence of Pizza Pizza in its corporate policies. The "30 minutes or free" policy exists and is not actionable by the world at large unless there is negligent driving by a delivery driver causing personal injury or property damage. In other words, the alleged non· automobile claims are derived from, not independent of, the automobile claim
It appears that the duty to defend will be invoked should the pleadings in the lawsuit allege facts which, if proven, would fall within coverage parameters. Alternatively, should the facts indicate a situation which falls outside the realm of coverage, the duty to defend will not be triggered. It should be noted that the courts are granting latitude to an insured and interpreting coverage in favour of an insured where the result is in doubt.
One of the most interesting and valuable aspects of a non-waiver agreement for an insurer is that it allows the insurer to investigate a claim and defend an action while still maintaining its right to deny coverage. The value of a non-waiver agreement is that it allows the insurer to not risk breaching its duty to defend. It also preserves the time necessary to investigate and possibly deny coverage at a later date.
Can an insurer avoid a conflict when reserving its right to deny coverage on one hand, and representing its insured's rights on the other?
The majority of insurance policies require an insurer to defend actions brought against the insured where coverage exists. The possibility for conflict can arise where a claim exceeds the limit of the policy, when not all aspects of the claim are covered by the policy, where there are multiple insureds with varying interests, or where a valid non-waiver agreement or reservation of rights letter is in place. When there are conflicting interests or mandates between an insurer and its insured, a conflict can arise.
The issue is canvassed at length in Brockton (Municipality) v. Frank Cowan Co. Ltd. The primary issue is the degree of divergence of the competing interests. Brockton says that there must be a reasonable apprehension of aconflict of interest on the part of counsel appointed by an insurer before the control of the defence shifts to its insured (at an insurer's expense).
...Do the circumstances of the particular case create a reasonable apprehension of conflict of interest if that counsel were to act for both the insurer and the insured in defending the action? If the insurer puts counsel in a position of having conflicting mandates it must surrender control of the defence to an insured who wishes to retain its own counsel paid for by the Insurer.
In coming to this conclusion, LeBel J.A. noted that American jurisprudence had moved towards a similar position and away from the broader basis for shifting control of the defence to the insured that was articulated in Cumis. For example, after Cumis, in Foremost Insurance Co. v. Wilks, 253 Cal. Rptr. 596, (1988), the California Court of Appeal made clear that not every case where the insurer elects to defend the insured under a reservation of rights creates a conflict of interest requiring the insurer to furnish independent counsel. If the reservation of rights arises because of coverage questions which depend upon an aspect of the insured's own conduct that is in issue in the underlying litigation, a conflict exists. On the other hand, where the reservation of rights is based on coverage disputes which have nothing to do with the issues being litigated in the underlying action, there is no conflict of interest requiring independent counsel paid for by the insurer.
I agree with the approach taken in Zurich and Foremost. The issue is the degree of divergence of interest that must exist before the insurer can be required to surrender control of the· defence and pay for counsel retained by the insured. The balance is between the insured's right to a full and fair defence of the civil action against it and the insurer's right to control that defence because of its potential ultimate obligation to indemnify. In my view, that balance is appropriately struck by requiring that there be, in the circumstances of the particular case, a reasonable apprehension of conflict of interest on the part of counsel appointed by the insurer before the insured is entitled to independent counsel at the insurer's expense. The question is whether counsel's mandate from the insurer can reasonably be said to conflict with his mandate to defend the insured in the civil action. Until that point is reached, the insured's right to a defence and the insurer's right to control that defence can satisfactorily co-exist.
A compelling reason for an insurer to enter into a non-waiver agreement, or to execute a reservation of rights letter, is to maintain control over the litigation process. Theoretically, however, insurers are only responsible for the cost of litigation related to claims which clearly fit within the coverage afforded by the policy. In reality, insurers are often required to pay costs as apportioned based on the percentage of responsibility. In conflict situations, the insurer risks becoming wholly responsible for the cost of litigation, and risks losing its ability to appoint and instruct counsel. While these are valid concerns of an insurer, the courts have asserted that these rights are superseded by the rights of an insured. For example, one such decision was the 1989 British Columbia Supreme Court decision of Carter v. Kerr.
The potential conflict of interest arises primarily in two ways. The first arises in the conflict between the insurer's duty to defend the insured, and their desire, when intending to deny indemnity, to protect their own interests not only on the issues of quantum and liability but coverage as well. The second and related potential conflict occurs in the context of the solicitor-client relationship when a lawyer acting on behalf of the insurer in the defence of an insured (under a statutory obligation to cooperate with counsel) may become privy to confidential information relevant to the coverage issue...
The attorney hired by the insurance company to defend in an action against the insured owes fiduciary duties to two clients: the insurer and the insured. The attorney-client relationship between the insured and the attorney hired by his insurer imposes upon the attorney the same professional obligations that would exist had the attorney been personally retained by the insured…
These divergent interests can be directly and irreparably affected during the preparation of the defence, particularly in relation to issues of liability, coverage and damages as well as during settlement discussions.
Another comparable decision was the P. G.B. Investments Ltd. v. Dominion of Canada General Insurance Co. from the Alberta Court of Queen's Bench;
...do not override the need to afford the Applicants a full defence to the allegation of defamation not marred by the potential for conflict.
There is an appearance of conflict. The Applicants would prefer an adverse finding based on negligent defamation. The Respondent insurer would prefer an adverse finding against the Applicants based on fraudulent defamation as there would then be no obligation to indemnify.
If the Respondent insurer has the right to conduct the defence, its counsel would be in an untenable conflict situation. As between the fraudulent defamation claim and the negligent defamation claim counsel would be inclined to pursue the defence of the latter at the expense of the former. The issue of indemnity may well be determined by the actions of the defence counsel in the third party action. This aspect of the defence is difficult to prevent. While there are valid concerns by the insurers they are, I believe, superseded by the need to protect the rights of the insured.
The process of protecting an insured in a case of potential conflict often requires more than one team of lawyers to ensure that divergent interests are handled by different parties. This process also ensures that an insurer is not precluded from making the necessary arguments to protect its own interests, and to maintain its ability to adequately investigate coverage. From an insurer's perspective, a significant part of this equation is the use of non-waiver agreements or reservation of rights letters to decrease costs of litigation and ensure that it will maintain control over the litigation process.
What is the effect of an insurer adding itself as a third party?
In lieu of a non-waiver agreement or a reservation of rights letter, an insurer may deny coverage and add itself as a third party to the litigation. The decision to deny coverage must be made on a reasonably strong basis and be justified in the circumstances of the particular policy.
In these circumstances, an insurer has the right to join an action as a third party and to be treated in the same manner as a defendant. The rights of an insurer when being added as a third party are governed by the Insurance Act:
250(14) Where an insurer denies liability under a contract evidenced by a motor vehicle liability policy, it shall, upon application to the court, be made a third party in any action to which the insured is a party and in which a claim is made against the insured by any party to the action in which it is or might be asserted that indemnity is provided by the contract, whether or not the insured enters an appearance or defence in the action.
250(15) Upon being made a third party, the insurer may,
(a) contest the liability of the insured to any party claiming against the insured,
(b) contest the amount of any claim made against the insured,
(c) deliver any pleadings in respect of the claim of any party claiming against the insured,
(d) have production and discovery from any party adverse in interest, and
(e) examine and cross-examine witnesses at the trial,
to the same extent as if it were a defendant in the action.
In the New Brunswick Court of Appeal decision of Pembridge Insurance Company v. Parlee, the court examined whether an insurer can file a third party defence which contradicts the defence filed on behalf of its insured. The court found that an insurer defending as a statutory third party is afforded the same protection as if it had a valid non-waiver agreement or binding reservation of rights letter in place:
The wording of sections 250(14) and (15) is unequivocal. The insurer, upon being made a Third Party under the Act, may participate in the defence of the main action between the plaintiff and the defendant "to the same extent as if it were a defendant in the action" despite the fact that it is denying liability under the policy. The insurer's participation, however, is in an action where the only issues to be resolved are those between the plaintiff and the defendant. At that stage, the dispute between the defendant insured and the insurer is not in issue. Counsel appointed and paid by the insurer after it has been added as a Third Party under the Act must be in exactly the same position as one appointed where there are no issues of coverage or breach of a condition of the policy. That is, counsel must act in the best interests of the defendant insured and cannot take a position that is incongruent with the interest of the defendant in any way. The insurer's participation as a Third Party under the Act, through counsel, is limited by the cause of action before the court. In that context, the Third Party is not entitled to file a statement of defence or take a position at trial that is incompatible with the interests of the defendant insured. As indicated earlier, counsel who has been instructed by an insurer to do otherwise has conflicting mandates and is simply not in a position to participate in the proceedings to any extent.
An insurer must be aware of its duty to defend and, notwithstanding having itself added as a third party, it may have a positive obligation to defend its insured, possibly restricting the third party defence it is able to bring forward. If it is later determined that the insurer had a duty to defend, the insurer could be liable for the legal costs for both the insured and the third party defence itself.
When an insured makes a claim under a policy of insurance, insurers are faced with a choice regarding their duty to defend and their duty to indemnify. The greatest concern is the avoidance of waiver and estoppel in making the decision of whether to admit or deny coverage.
A non-waiver agreement is one method by which an insurer can reserve the right to make the decision about coverage until after an investigation has been conducted. Such an agreement is bilateral, with the insured, to reserve this right and set the expectations of the investigation and indemnification process. The courts will generally accept such an agreement provided that it contains the information that has been historically required by the courts and provided that the parties to the agreement are in an equal position of bargaining and understanding.
As a general rule an insured should not execute a non-waiver letter. There is no prejudice for not signing and the negative consequences to the insured if a non-waiver letter is signed are likely to exceed the consequences to the insurer if it is not.
An alternative to a non-waiver agreement is a reservation of rights letter. Such a letter would contain substantially the same information and is designed to achieve the same protections for the insurer. The major difference is that this is a unilateral document and the courts will rely on it with less regularity because there is no acceptance by the insured.
The insurer's duty to defend and its duty to indemnify is defined in the terms of the insurance policy. The duty to defend as defined arises from the allegations made against the insured. A non-waiver agreement will allow an insurer to defend claims while still investigating and potentially denying coverage under a policy. This can be of dramatic value due to the potential cost of failing to file a valid defence should an insurer be found to have a duty to defend.
The parties in such a situation must be aware of the potential for conflict which may arise. For example, parts of the claim may fall inside policy coverage and parts will not. The responsibility for indemnification of the insured may shift depending on the facts of the case. Also an insurer may appoint counsel to defend the claim and at the same time represent the insurer's interest, in part to avoid indemnification. A non-waiver agreement can include provisions for the responsibility that each party will bear during the litigation process depending on the determination of coverage.
To avoid conflict, there is another option. The insurer can be added as a third party to the litigation pursuant to the Insurance Act. In this way, the insurer can maintain a role in the litigation. The insurer must be wary of denying coverage without careful consideration of the facts of the case. In the event that an insurer chooses not to defend, and it is later determined that it did have a duty to defend, it may be held responsible for the insured's costs of litigation along with its own.
Non-waiver agreements can have significant value to an insurer when coverage is in doubt. The facts in a given situation must be carefully considered to determine what method will best preserve rights, while, at the same time, leaving flexibility for later determination. The insured, on the other hand, should be wary when considering executing these kinds of agreements as they can easily prejudice its own case. The insured should always seek legal counsel in advance of executing any documents provided to it by its insurer.
Special thanks to Veronica Ford and Chris Isnor for their assistance in preparing these materials.
Articles and Texts
Janet M.R. Clark, "Coverage: Considerations for Defence Counsel', Stewart McKelvey, (April1, 2010), Canadian Defence Lawyers "Boot Camp II" Conference Speaking notes.
Michael E. Bowlin and Amanda J. Frenette, "Non-Waiver Agreements and Reservation of Rights: Practical Points for Insurers Faced with Uncertain Coverage', (2001), Risk Management Counsel of Canada online publications, http://www.rmc
agr.com/englishllibrary.php ?p:::4, retrieved August 31 2010.
Nigel P. Kent, "Non-Waiver Agreements, Reservation of Rights Letters and the Defence of Claims in Questionable coverage situations', (2005), Clark Wilson website
http://ww w.cwilson .com /pub s/in suranc e/n pk 2/, retrieved August 31, 2010.
Cases & Legislation
Allstate Insurance Co. v.. Foster  1O.R. 653
Ashe Trucking Ltd. v. Dominion Insurance Corp., (1966), 56 D.L.R. (2d) 730. A viva Insurance Company of Canada v. Pizza Pizza Limited, 2008 ONCA 535
Brockton (Municipality) v. Frank Cowan Co. Ltd., 2002 CanLII 7392 (ON C.A.)
Carter v. Kerr, 1989 CanLII 2814 (BC S.C.)
Harrison v. Ocean Accident & Guarantee Corp. Ltd.  3 D.L.R. 445 (Ont. C.A.)
Hersh v. Wawanesa Mutual Insurance Co., (1994), 89 B.C.L.R. (2d) 225
Insurance Act, R.S.N .B. 1973, c. -12
Mitchell & Jewell Ltd. v. Canadian Pacific Express Co., (1974), 44 D.L.R. (3d) 603.
Nichols v. American Home Assurance Co.,  1S.C.R. 801
Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24,  1S.C.R. 551
P.C.S. Investments Ltd. v. Dominion of Canada General Insurance Co., 1994 CanLII 8947
Pembridge Insurance Company v. Parlee, 2005 NBCA 49
Zurich Insurance v. Crawford  O.J. No. 966 (Gen. Div.)
Additional Cases on the Issue for Counsel to Consider
2091533 Ontario Ltd. v. Vertigo Investments Ltd., 2013 ONSC 2731
Hoang v. Vicentini, 2015 ONCA 780
MacLellan v. Intact Insurance Co., 2017 NSSC 58
Mallory v. Werkmann Estate, 2015 ONCA 71