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"So this gets back to the old advice of buy
the most expensive insurance coverage
you can afford, and the clearer, the better."
Robert Martz, Burnet Duckworth & Palmer
lawyers suggest its applicability as a prece-
dent would likely have been limited to those
cases that involve loss of use because of, or at
least closely tied to, physical damage.
Still, the MDS case has undoubtedly high-
lighted some of the challenges that will surely
emerge as the various cases wind their way
through the court system. And one of these
cases could likely end up at the Supreme
Court of Canada. (At this time, no party has
decided to appeal the Court of Appeal for
Ontario MDS ruling).
In the meantime, lawyers working on
insurance cases suggest the wording in
an insurance policy is critical. Whether
economic losses arising in connection with
the COVID-19 pandemic will be seen to
amount to physical loss or damage to prop-
erty "will depend on the language of the
policy," says Dentons' Stewart.
For example, the Ontario Court of Appeal
stated that "where a policy is intended to
include not only physical but economic losses,
insurance policies have specifically defined
property damage to include loss of use."
Adds Martz: "So this gets back to the old
advice of buy the most expensive insurance
coverage you can afford, and the clearer, the
better."
