The Supreme Court of Canada on a Duty to Defend - part 1

Recently, the Supreme Court of Canada held, by unanimous decision, that an insurer will be obligated to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured for the claim regardless of whether the allegations in the pleadings can be proven in evidence.  What is required is the mere possibility that a claim falls within the insurance policy.   Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.

The focus of the policy interpretation should first and foremost be on the language of the policy itself.  Justice Rothstein, for the Supreme Court of Canada, carefully reviewed the terms of the insurance policy.  I think this case helpfully emphasizes and reiterates the principle that the terms of the insurance contract itself must be carefully reviewed.  Not all insurance policies are the same and it is important for an insurer or coverage counsel to carefully review the terms of the policy.  The Supreme Court of Canada has emphasized that the duty to defend must be determined on the terms of the insurance policy.

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