The Ontario Superior Court of Justice has published its reasons for judgment in a case where insurers unsuccessfully argued that an incident that occurred while a hunting party was setting up a tent did not constitute “hunting.” They also argued that their policies should be treated as “excess insurance” and therefore would not respond to the loss.

The phrasing of the two insurance policies at issue was such that both sought to operate as excess policies when another policy was available to respond to the loss. “The issue is how to reconcile the two policies,” the reasons state in Trajcevski v. Aviva et al. 

“This is the same situation as addressed by the Supreme Court in Family Insurance Corp. v. Lombard Canada Ltd. In that case, two insurers insured the same loss. Both insurers had “other insurance” clauses that stated their policy was to be treated as “excess insurance” to any other insurance. The clauses were irreconcilable and thus the court stated that the fairest result is to apply the doctrine of equitable contribution,” they add. “The doctrine of equitable contribution applies where two primary policies respond to the same loss, but both seek to be excess policies, and the wording of the policies cannot be reconciled. The doctrine spreads the burden pro-rata between the insurers.” 

The respondents in the case – Aviva Insurance Company of Canada, Sovereign General Insurance Company and Trisura Guarantee Insurance Company – had issued a subscription policy to Great North Wildlife Affiliates (GNWA). The policy provided coverage to the club’s members for losses caused by bodily injury related to certain outdoor activities, including hunting.

They argued that the incident did not constitute hunting because a firearm belonging to the applicant, Dimce Trajcevski, discharged while the group was setting up a tent, shooting Pedro Antonio Castillo in the foot and resulting in the amputation of three toes. The argument did not hold up in the case.

“There is clearly some elasticity as to what is meant by hunting in the statutory world,” they write. “Of course, this is not to say that each insured gets to choose their own definition of hunting but rather that where an insurance contract is ambiguous, the court should apply the rules of contractual construction which includes preferring an interpretation that is consistent with the reasonable expectations of the parties. When these rules of construction fail to resolve the ambiguity, courts will construe the policy contra proferentem —against the insurer which generally means accepting an interpretation that advances rather than detracts from coverage.” 

Trajcevski was also insured through a homeowner’s policy issued by CAA Insurance Company which had accepted coverage and is providing a defence through counsel, raising the question of whether the GNWA policy was a primary or excess policy. It was ultimately decided that the respondents would contribute 50 per cent of Trajcevski’s defense costs, starting in July 2023 when the companies were first notified of the claim.