ONCA Confirms That A Self-insured Retention Is Not Akin To A Policy When Considering Whether A Concurrent Policy Exists For Coverage

The Court of Appeal's recent decision in Live Nation Ontario Concerts GP, Inc. v. Aviva Insurance Company of Canada, 2024 ONCA 634 provides clarity on the extent of an insurer's duty to defend in relation to covered and uncovered claims brought against an insured in an underlying action.

What you need to know

This decision is significant for litigants with large, self-insured retentions, such as municipalities, who may frequently seek a defence from insurers where they have been added as additional insureds.

Previous Court of Appeal jurisprudence has held that multiple insurers may need to respond to an insured's request for a defence if there are multiple responding policies. In seeking contribution from a co-insurer, an insurer can rely on the doctrine of equitable contribution. However, equitable contribution can only be sought from a concurrent insurer, not from an insured. The existence of an insured's self-insured retention under a policy does not turn