Insurance broker for Aviva policies settled with insured dentists, dental corporations
In a class action revolving around business interruption insurance offered by three Aviva insurance companies and sold and marketed by CDSPI Advisory Services Inc., the Ontario Court of Appeal upheld a partial settlement involving CDSPI and the representative plaintiff.
Aviva Insurance Company of Canada, Aviva General Insurance Company of Canada, and Aviva Canada Inc. (collectively, Aviva) – the appellants in McCartney v. CDSPI Advisory Services Inc., 2026 ONCA 578 – offered the policies to dentists and dental corporations as part of Triple Guard insurance policies.
Before Mar. 13, 2020, a dentist with a Triple Guard policy could increase their pandemic outbreak coverage up to an aggregate limit of $5,000 per day or $100,000 per year upon paying an additional premium.
Actions against CDSPI and Aviva
In individual actions and a class action against CDSPI, the plaintiffs alleged that the right to raise pandemic coverage was cancelled, and policyholders’ requests to exercise that right were all rejected as of Mar. 13, 2020.
In the individual actions against CDSPI, the plaintiffs claimed that CDSPI negligently provided insurance broker services and failed to inform them promptly of their right to increase their pandemic coverage limits under the Aviva policies, in breach of contractual obligations.
Aviva opposed its addition to the individual actions against CDSPI. Thus, in separate actions, individual plaintiffs argued that Aviva had unlawfully terminated their rights to raise their pandemic coverage limits.
In a class action proceeding brought against Aviva and CDSPI in September 2022, the plaintiffs alleged causes of action based on the same facts and similar in nature to those asserted in the individual actions against CDSPI and Aviva.
Settlement discussions
CDSPI and the individual actions plaintiffs began discussing a settlement. In March 2023, CDSPI, the individual actions plaintiffs’ counsel, and the class action plaintiffs’ counsel executed a non-disclosure agreement over CDSPI’s financial information.
CDSPI could not satisfy a judgment exceeding its liability insurance limits, so a settlement or judgment in the individual actions would leave no coverage for any class action settlement or judgment.
On June 12, 2024, CDSPI and the representative plaintiff agreed to a settlement in the class action. In exchange for a full and final release, CDSPI would grant access to relevant documents and evidence.
On the same date, CDSPI and the individual actions plaintiffs signed a settlement in the individual actions, conditional upon approval of the proposed class action settlement.
Aviva received a copy of the class action settlement on June 12, 2024, and a copy of the individual actions’ settlement on Aug. 28, 2024.
Under ss. 27.1(1) and (3) of Ontario’s Class Proceedings Act, 1992 (CPA), CDSPI and the class action representative plaintiff asked the court to approve the proposed settlement. Aviva moved to stay the class action and the individual actions against it.
Motion judge approves settlement
In orders dated July 18, 2025, and Sept. 2, 2025, Justice Edward Morgan of the Ontario Superior Court of Justice approved the settlement in the class action with CDSPI and denied Aviva’s stay motions.
The motion judge determined that the rule in Handley Estate v. DTE Industries Limited, 2018 ONCA 324, which required immediate disclosure of partial settlement agreements, did not apply to class proceedings, given that the CPA had its own disclosure regime.
Ontario Court of Appeal denies appeal
On appeal, Aviva sought to set aside the motion judge’s orders dismissing the orders approving the settlement and denying its stay motions. Aviva asked the appeal court to permanently stay the class action and the individual actions against it and to reject the class action’s partial settlement.
The Ontario Court of Appeal dismissed the appeal. The appeal court awarded costs of $50,000 to class counsel on behalf of the class action representative plaintiff and others, $25,000 to the individual actions plaintiffs, and $10,000 to CDSPI.
Partial class action settlement upheld
First, the Ontario Court of Appeal ruled that Aviva received timely and arguably immediate disclosure of CDSPI’s and the class action representative plaintiff’s proposed settlement.
The appeal court agreed with the motion judge that the CPA had its own provisions on disclosing partial settlements in class proceedings.
The appeal court also found no error in the motion judge’s determination regarding Handley Estate. The appeal court noted that 1086289 Ontario Inc. (Urban Electrical Contractors) v. Welland (City), 2026 ONCA 352, had overturned Handley Estate, which was no longer good law.
Settlement of individual actions
Second, the Ontario Court of Appeal held that Aviva was not entitled to disclosure of CDSPI’s and the individual actions plaintiffs’ settlement because it was not a party to those actions.
Even if a disclosure obligation existed, the appeal court pointed out that Aviva knew about the class and individual settlements and made submissions about both during the settlement approval hearing.
No deceit or concealment found
Third, the Ontario Court of Appeal found no deceit, concealment, or improper withholding of information on the part of the class action representative plaintiff, the individual actions plaintiffs, or CDSPI. The appeal court saw no abuse of process or any other basis for a remedy in Aviva’s favour.
Ontario Court of Appeal’s prior insurance cases
Here are some other recent insurance-related decisions by the Court of Appeal for Ontario.
The Ontario Court of Appeal issued a June 30 ruling upholding a decision denying two insurance companies permission to include civil fraud in their statement of defence against an injured party’s lawsuit seeking $2 million in damages under s. 132(1) of Ontario’s Insurance Act, 1990.
The Ontario Court of Appeal made a June 3 decision dismissing an appeal against an Ontario Superior Court judgment that ordered an insurer to indemnify the insured land surveyor company for $3.2 million for the settlement of one of two claims it faced.
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