Although the insured informed the insurer of criminal allegations of sexual assault eight months after becoming aware of the allegations, the notice was sufficient because it was made as soon as practicable based on the information available at the time

Insurance law – Liability insurance – Notice – Duty to defend – Relief against forfeiture – Interpretation of policy

Toronto District School Board v. Ontario School Boards’ Insurance Exchange, [2018] O.J. No. 3689, 2018 ONSC 4198, Ontario Superior Court of Justice, July 11, 2018, C.J. Brown J.

The insurer denied coverage to the insured school board for a claim arising from an alleged sexual assault on the basis that insufficient notice was provided and that notice was not provided in a timely manner. The court held that the insured provided sufficient notice when it provided a spreadsheet informing the insurer of pending criminal sexual assault charges. The insured delayed in reporting the claim to the insured for eight months after it became aware of the criminal allegations. However, most of the appearances in criminal court during those eight months were simply “to be spoken to” appearances and very little information was available. The court held that notice was given as soon as practicable.

Alternatively, if notice was not timely, the insured was entitled to relief from forfeiture. The insurer did not suffer any prejudice as even after being informed of the allegations, the insurer did not take steps to investigate the claim. The court held that the insurer had a duty to defend.

This case was digested by Dionne H. Liu, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Dionne H. Liu at dliu@harpergrey.com.