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ARTICLE · 07 MARCH 2023

Representations And Warranties Insurance – Court Of Appeal Decision Will Impact Coverage Analysis

Gowling WLG
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The Ontario Court of Appeal's decision in Boliden Mineral AB v FQM Kevitsa Sweden Holdings AB, 2023 ONCA 105 interprets the representation and indemnity provisions in a share purchase...

CanadaInsurance
Scott Kugler
Scott Kugler
Luke Sabourin
Luke Sabourin
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The Ontario Court of Appeal's decision in Boliden Mineral AB v FQM Kevitsa Sweden Holdings AB, 2023 ONCA 105 interprets the representation and indemnity provisions in a share purchase agreement (SPA). While the decision does not address representations and warranties insurance (RWI) itself, the interpretation of representation and indemnity provisions in an SPA is central to the coverage analysis for RWI.

The key takeaways from the decision are:

  • Representations that confirm a state of affairs (as opposed to the representor's belief about the state of affairs) are breached if the state of affairs is not as represented.
  • The reasonable foreseeability of consequential and indirect losses will be interpreted according to the applicable common law if the SPA does not specify otherwise.

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