An Ontario court has granted leave for a summary judgment motion to determine which of two insurers must cover a cracked condominium swimming pool.
The Ontario Superior Court of Justice ruling traces back to November 23, 2018, when a resident's vehicle crashed into the exterior corner of a 12-storey condominium building's atrium, shattering glass that fell into an elevated pool above the parking garage. The building manager drained the pool that day to remove the glass. While the pool was being refinished, a crack appeared in its concrete bottom. The crack was repaired and finishing was completed.
On April 6, 2019, the building manager began refilling the pool but stopped before the deep end was full after cracks and leaks appeared. The pool was eventually repaired at a cost of $258,798.25 not covered by insurance and paid directly by the condominium corporation. A February 20, 2025 appraisal award quantified the loss at $271,179.73 in replacement cost value and $242,985.73 in actual cash value.
Economical Mutual Insurance Company and Aviva Insurance Company of Canada held consecutive property policies on the building - Economical's running from April 1, 2018 to April 1, 2019, and Aviva's from April 1, 2019 to April 1, 2020. Which insurer must indemnify the condominium corporation turns on when the crack behind the April 2019 leak formed.
The condominium corporation had already set the matter down for trial when it sought leave to bring a summary judgment motion, arguing the coverage question could be resolved in a day rather than over a two-week trial. It also pointed to previously undisclosed agreements among the defendants, one of which surfaced only at the pre-trial conference, when counsel for Economical revealed that, under an arrangement between the insurers, "Economical was taking the lead" in responding to the motion.
The defendant insurers opposed leave, arguing that conflicting expert opinions on when and why the pool cracked needed to be tested through cross-examination at trial.
Justice Pamela Hebner disagreed, finding experts could be cross-examined on their reports ahead of the motion, with a mini-trial available if a motions judge later decided live testimony was needed. She noted the appraisal had already quantified the damages, leaving the coverage question largely one of what, if anything, each policy covers.
Hebner did not treat a substantial and unexpected change in circumstances as a requirement for leave, citing prior rulings that the real test is whether the interlocutory step serves the interests of justice. She found the late-disclosed agreements did not affect that analysis; their terms remain the subject of a separate production motion.
Leave was granted, and the condominium corporation was awarded $10,000 in costs, payable by the defendants within 30 days.
