Thomas J. Donnelly

416.507.1866 tdonnelly@tgplawyers.com Download V-Card
Tom is a founding partner of Thomas Gold Pettingill LLP.

Areas of practice & Experience

Tom litigates insurance coverage matters on behalf of policyholders and insurers. He has appeared in coverage cases before the Supreme Court of Canada, the Ontario Court of Appeal, the Ontario Superior Court of Justice, and in private arbitrations and mediations. His policyholder clients have obtained over $1.057 billion in settlements and judgments from their insurers.

Tom is listed in the independent guides Best Lawyers in Canada, the Canadian Legal Lexpert Directory, and Who’s Who Legal, in the area of insurance law.

Judges of the Ontario Superior Court of Justice have commented on Tom’s advocacy skills:

  • “Before setting out the relevant background of the claim, I will say the following. Mr. Donnelly . . ., in able and detailed submissions, focussed on the legal issues which underlie an insurer’s duty to defend.” Justice E. Macdonald in Cooper v. Farmers’ Mutual Insurance Co. (2001), 32 C.C.L.I. (3d) 284 (Ont. S.C.J.), affirmed (2002), 59 O.R. (3d) 417 (C.A.).
  • “I am obliged to counsel for all parties on these applications . . . whose thoroughness of preparation and excellent quality of materials and argument was of great assistance to me.” Justice E. Stewart in Bridgewood Building Corp. (Riverfield) v. Lombard General Insurance Co. of Canada (2005), 26 C.C.L.I. (4th) 93 (Ont. S.C.J.), affirmed (2006), 266 D.L.R. (4th) 182 (Ont. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed November 9, 2006.
  • “I begin by thanking counsel for their written and oral submissions. The Application was well prepared, and the standard of argument and advocacy was high.” Justice P. Perell in AXA Insurance (Canada) v. Ani-Wall Concrete Forming Inc. (2007), 56 C.C.L.I (4th) 239 (S.C.J.), additional reasons to (2007), 87 O.R. (3d) 764 (S.C.J.), additional reasons (2007), 88 O.R. (3d) 240 (S.C.J.), affirmed (2008), 91 O.R. (3d) 481 (C.A.), additional reasons at (2008), 66 C.C.L.I. (4th) 35 (Ont. C.A.).
  • “I would like to express my sincere thanks to counsel for their very capable oral and written submissions which were of great assistance to me.” The Honourable H. Spiegel, retired judge acting as an Umpire in an appraisal under s. 128 of the Insurance Act, in Midas Investment Corp. v. The Dominion of Canada General Insurance Co. (Nov. 9, 2011).
  • “I wish to thank all counsel for their civility and professionalism throughout”. Justice J. Wilson in S.A. Armstrong Ltd. v. Chubb Insurance Co. of Canada, 2012 CarswellOnt 9089 (S.C.J.).
  • “I wish to thank all counsel for their thorough submissions and excellent facta”. Justice V. Mitrow in Oxford (County) v. Guarantee Co. of North America (2012), 14 C.C.L.I. (5th) 44 (Ont. S.C.J.).
  • “I sincerely thank counsel for their excellent materials and cogent arguments.”  Justice M.D. Parayeski in Smith v. State Farm Fire and Casualty Co., 2016 CarswellOnt 4707 (Ont. S.C.J.).

Tom has experience in dealing with many types of insurance, including: directors’ and officers’ insurance; professional liability, commercial general liability, environmental liability and excess and umbrella liability insurance; fidelity and financial institutions bonds; property and business interruption insurance; and homeowners’ and automobile insurance. He has over fifty reported decisions, and has handled many claims involving allegations of bad faith and bad faith refusal to settle within policy limits.

Tom taught an advanced insurance law course at the University of Western Ontario, Faculty of Law, for three years. He has spoken at insurance industry conferences in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, and Newfoundland.

In addition to his law practice, Tom is the co-author of Insurance Contract Interpretation and Insurance Law in Canada, both published by Carswell, and both co-authored with Professor Craig Brown of the University of Western Ontario. He has also written chapters in the Annotated Commercial General Liability Policy (Toronto: Canada Law Book). His texts on insurance law have been quoted with approval by the Supreme Court of Canada and by trial and appellate courts throughout the country.

Past results in litigation are not necessarily indicative of future results.  Amounts recovered and other litigation outcomes will vary according to the facts in individual cases.

Reported decisions

  • Liberty Mutual Insurance Co. v. Cronnox Inc. (2018), 77 C.C.L.I. (5th) 320 (Ont. S.C.J.).  Acted for insurer and obtained declaration that a prior-knowledge exclusion in a claims-made E&O policy barred coverage.
  • Subway Franchise Systems of Canada, Inc. v. Trent University (2017), 12 C.P.C. (8th) 203 (S.C.J.).  Acted for university in a case alleging negligence and defamation in the testing of chicken sandwiches.  Successfully resisted franchisor’s attempt to obtain pre-litigation production of test results through a Norwich application.
  • Freyssinet Canada Limitée v. Parkway Infrastructure Constructors (2017), 70 C.C.L.I. (5th) 321 (Ont. S.C.J.).  Acted for subcontractor in a motion on whether an agreement to procure builders’ risk insurance precluded a counterclaim between contractors.
  • 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co. (2017), 409 D.L.R. (4th) 75 (Ont. C.A.).  Acted for insurer in appeal of motion to amend a pleading.
  • Housing Services Corp. v. AIG Insurance Co. of Canada (arbitration decision – Dec. 16, 2016).  Acted for policyholder in an arbitration with property insurers concerning the interaction of a self-insured retention and subrogation proceeds.
  • 2224981 Ontario Inc. v. Intact Insurance Co., (2016), 62 C.C.L.I. (5th) 193 (Ont. C.A.).  Acted for successful policyholder against an insurer in a business interruption claim arising out of a fire.
  • State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc. (May 6, 2016, M45969) (Ont. C.A.).  Successfully resisted motion for leave to appeal to the Court of Appeal on behalf of a plaintiff insurer.
  • Francis v. AIG Insurance Co. of Canada, [2016] I.L.R. I-5877 (Ont. S.C.J.).  Acted for policyholder and won a summary judgment motion in a multi-million dollar property insurance coverage claim.
  • Smith v. State Farm Fire and Casualty Co. 2016 CarswellOnt 4707 (Ont. S.C.J.). Acted for insurer on a duty to defend motion.  The court held that the concurrent cause language in an auto exclusion barred coverage for a negligent supervision claim.
  • 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2016 ONSC 1132.  Acted for insurer in motion to amend pleading.
  • State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc. 2015 ONSC 7774 (Div. Ct.).  Acted for plaintiff insurer in responding to an appeal of a motion to strike part of the claim.  The court held that the doctrine of merger should not be applied at the pleadings stage and dismissed the appeal.
  • William Osler Health Centre v. Compass Construction Resources Ltd. (2015), 51 C.C.L.I. (5th) 244 (Ont. S.C.J.).  Acted for construction company in the defence of a subrogated property claim.  The court held that the construction company’s crossclaim against a subcontractor was not barred by the construction company’s agreement to provide builders’ risk insurance for the project.
  • Versa Fittings & Manufacturing Inc. v. Berkley Insurance Co., [2015] I.L.R. I-5720 (Ont. S.C.J.). Acted for insurer in case involving coverage for leaky valves installed in condominium buildings.
  • ACE INA Insurance v. Associated Electric & Gas Insurance Services Ltd. (2013), 118 O.R. (3d) 428 (C.A.), application for leave to appeal to the Supreme Court of Canada dismissed May 15, 2014. Acted for successful excess insurer in an appeal. The Court of Appeal held that the excess insurer did not have an equitable obligation to contribute to defence costs incurred by the primary insurer in the defence of five actions claiming $55 million.
  • Century Indemnity Co. v. Viridian Inc., 2013 ONSC 4412. Acted for insurer in case involving purported insurance coverage for historical mining pollution at Manitoba mine sites. The court agreed that Ontario was the proper forum, and dismissed the insured’s motion to transfer the litigation to Manitoba.
  • Alavi v. York University, 2013 ONSC 3213. Acted for a university and obtained judgment enforcing a settlement agreement between a student and the university.
  • Midas Investment Corp. v. The Dominion of Canada General Insurance Co. (Nov. 12, 2012 arbitration award). Represented insurer and successfully resisted insured’s attempt to set aside an appraisal award.
  • ACE INA Insurance v. Associated Electric & Gas Insurance Services Ltd. (2012), 17 C.C.L.I. (5th) 128 (Ont. S.C.J.). Acted for excess insurer and successfully resisted a court application by the primary insurer for a declaration that the excess insurer had a duty to contribute to the defence costs in an over-limits claim against the insured.
  • Obtained a $5.5 million settlement of a D&O coverage claim on behalf of a policyholder client (August 2012).
  • Oxford (County) v. Guarantee Co. of North America (2012), 14 C.C.L.I. (5th) 44 (Ont. S.C.J.). Acted for municipality in a duty to indemnify application seeking coverage for two lawsuits arising out of an expropriation of land.
  • S.A. Armstrong Ltd. v. Chubb Insurance Co. of Canada, [2012] I.L.R. I-5326 (Ont. S.C.J.) and 2012 CarswellOnt 9089 (S.C.J.). Obtained judgment against insurer at trial for its share of the defence of over 4,000 asbestos personal injury claims in the United States, and obtained a full indemnity costs award against the insurer for the costs incurred at and prior to trial.
  • Midas Investment Corp. v. The Dominion of Canada General Insurance Co. (Nov. 9, 2011 appraisal decision). Successfully represented insurer in a multi-million dollar appraisal hearing under s. 128 of the Insurance Act.
  • Obtained a $10.3 million settlement on behalf of a policyholder client in an E&O coverage claim (September 2011).
  • Obtained an $8.95 million settlement of a product liability coverage claim on behalf of a policyholder client (August 2011).
  • Successfully represented insurer in an arbitration between two excess professional liability insurers. The arbitrator held that the other insurer was required to pay the remaining $4.6 million of a settlement (February 2011).
  • Cohn v. Calovic (2011), 97 C.C.L.I. (4th) 106 (Ont. S.C.J.). Acted for insurance agent in a case interpreting the interaction of underinsured motorist coverage and a personal umbrella liability policy.
  • Woodbury v. State Farm Fire and Casualty Co. (2010), 88 C.C.L.I. (4th) 261 (Ont. S.C.J.). Acted for insurer under a homeowner’s policy. The court held that liability arising from injuries sustained in a motorboat collision was excluded.
  • Goodman v. AIG Commercial Insurance Co. (2010), 101 O.R. (3d) 741 (C.A.). Acted for directors in a claim for defence costs against two D&O insurers. The court considered the interaction of a commercial D&O policy and an Outside Directors’ Liability policy.
  • Obtained a US$26.5 million settlement of a business interruption claim for a policyholder client (February 2009).
  • Goodman v. AIG Commercial Insurance Co. (2009), 78 C.C.L.I. (4th) 249 (Ont. Comm. List). Acted for directors in a claim for defence costs against two D&O insurers.
  • AXA Insurance (Canada) v. Ani-Wall Concrete Forming Inc. (2008), 91 O.R. (3d) 481 (C.A.). Acted for policyholder contractors and builders in claim against CGL insurer. The court held that the “Your Work” and “Rip and Tear” exclusions did not apply to claims for defective concrete.
  • SaskPower International Inc. v. UMA/B&V Ltd., [2007] 6 W.W.R. 277 (Sask. C.A.).       Acted as co-counsel for insurer regarding the interpretation of a limitation of liability clause in an engineering services contract.
  • Frohlinger v. Nortel Networks Corp. (2007), 40 C.P.C. (6th) 62 (Ont. S.C.J.). Acted as D&O insurance coverage counsel for policyholder in multi-billion dollar securities class action settlements in the U.S. and Canada.
  • Feldman v. Rego, 2007 CarswellOnt 10250 (S.C.J.).  Acted for plaintiffs in a summary judgment motion arising out of a Pierringer agreement.
  • Dominion of Canada General Insurance Co. v. Beckford-Tseu (2007), 07-CV-325439PD2 (Ont. S.C.J.). Acted for insurer in duty to defend application. There was no duty to defend where the insured allegedly pushed the plaintiff into the path of a taxi.
  • Canada (Attorney General) v. Reliance Insurance Co. (2007), 87 O.R. (3d) 42 (Comm. List). Acted for reinsurer against the liquidator of an insolvent insurer, in a claim involving the effect of winding-up legislation on a contractual set-off clause.
  • AXA Insurance (Canada) v. Ani-Wall Concrete Forming Inc. (2007), 54 C.C.L.I. (4th) 183 (Ont. S.C.J.). Acted for policyholder contractors and builders in claim against CGL insurer. The court held that the “Your Work”, “Your Product”, and “Rip and Tear” exclusions did not apply to claims for defective concrete.
  • Jesuit Fathers of Upper Canada v. Guardian Insurance Co. (2006), 267 D.L.R. (4th) 1 (S.C.C.). Acted as co-counsel for insurer in the Supreme Court of Canada. At issue was coverage, under a claims-made E&O policy, for residential school abuse litigation. The Supreme Court held that only one of approximately 100 claims was first made during the policy period, and that there was no duty to defend claims made after the policy expired.
  • Bridgewood Building Corp. (Riverfield) v. Lombard General Insurance Co. of Canada (2006), 266 D.L.R. (4th) 182 (Ont. C.A.), application for leave to appeal to the Supreme Court of Canada dismissed November 9, 2006. The appellate court held that the business risk doctrine did not preclude coverage for faulty concrete.
  • Solway v. Lloyds of London and Allianz Insurance Co. (2006), 80 O.R. (3d) 401 (C.A.). Acted for policyholders in claim under transportation and storage insurance policy. The Court of Appeal held that approximately $300,000 in costs and post-judgment interest was payable by the insurer in addition to the limit of liability.
  • Djepic v. Kuburovic and Dominion of Canada General Insurance Co. (2006), 263 D.L.R. (4th) 709 (Ont. C.A.). Acted for auto insurer on appeal of duty to defend decision. The Court of Appeal held that the defendant in an action was not an insured under an automobile policy.
  • Chaudry v. Economical Insurance Co., [2006] I.L.R. I-4458 (Ont. S.C.J.). Acted as co-counsel for insurer at trial. The jury held that the insured had made a fraudulent or wilfully false statement in the proof of loss, and held that the insurer did not act in bad faith. The trial judge dismissed a motion by the insured to set aside the jury verdict.
  • Mantini-Atkinson v. Co-operators General Insurance Co. (2005), 75 O.R. (3d) 442 (C.A.). Acted for policyholder in an appeal of a duty to defend application under a CGL policy.
  • Avis Rent a Car System Inc. v. Certas Direct Insurance Co. (2005), 75 O.R. (3d) 421 (C.A.). Acted as co-counsel for car rental company and umbrella insurer in a claim against an auto insurer regarding contribution to a settlement.
  • Djepic v. Kuburovic (2005), 20 C.C.L.I. (4th) 184 (Ont. S.C.J.).  Acted for auto insurer in a duty to defend application.  The court agreed that the defendant was not an insured under the auto policy and was therefore not covered under that policy.
  • Rose Corp. v. American Home Assurance Co. (2004), 7 C.C.L.I. (4th) 9 (Ont. C.A.). Acted as co-counsel for policyholder in a claim against an insurer for a fire loss.
  • Renaissance Leisure Group Ltd. v. Frazer (2004), 242 D.L.R. (4th) 229 (Ont. C.A.). Acted as co-counsel for plaintiff in a claim for contribution and indemnity against another tortfeasor.
  • Jesuit Fathers of Upper Canada v. Guardian Insurance Co. (2004), 16 C.C.L.I. (4th) 24 (Ont. C.A.). Acted as co-counsel for insurer in a case regarding coverage for residential school abuse under a claims-made policy.
  • Avis Rent a Car System Inc. v. Certas Direct Insurance Co. (2004), 71 O.R. (3d) 313 (C.A.). Acted as co-counsel for car rental company and umbrella insurer in a claim against an auto insurer regarding contribution to a settlement.
  • Bridgewood Building Corp. (Riverfield) v. Lombard General Insurance Co. of Canada (2004), 26 C.C.L.I. (4th) 93 (Ont. S.C.J.). Acted for policyholders in precedent-setting decision. For the first time in Canada, the court held that statutory liability under new home warranty legislation triggered CGL coverage, in the absence of a lawsuit.
  • Hawley v. Fearn-Stewart (2003), 233 D.L.R. (4th) 160 (Ont. S.C.J.). Acted for defendant in a motion by the plaintiff to compel disclosure of a confidential informant’s identity. The court held that the identity of the individual did not have to be disclosed.
  • Mantini-Atkinson v. Co-operators General Insurance Co. (2003), 67 O.R. (3d) 351 (S.C.J.).  Acted for policyholder in a duty to defend application.
  • Cheung (Litigation Guardian of) v. Toyota Canada Inc. (2003), 29 C.P.C. (5th) 267 (Ont. S.C.J.). Acted as co-counsel for automobile distributor in a motion for sanctions for spoliation of evidence by an expert witness.
  • Graham v. 7-Eleven Canada Inc., 2003 CarswellOnt 564 (S.C.J.).  Obtained summary judgment on behalf of defendant landlord in a slip and fall case, dismissing the plaintiff’s claim.
  • Grace v. Fort Erie (Town) (2003), 42 M.P.L.R. (3d) 180 (Ont. S.C.J.). Acted as co-counsel for municipality in a class action alleging bacterial contamination of municipal water supply. The court declined to certify the action as a class proceeding.
  • Jesuit Fathers of Upper Canada v. Guardian Insurance Co. (2003), 68 O.R. (3d) 178 (Ont. S.C.J.). Acted as co-counsel for insurer in a case regarding coverage for residential school abuse under a claims-made policy.
  • Rose Corp. v. American Home Assurance Co. (2003), 48 C.C.L.I. (3d) 269 (Ont. S.C.J.). Acted as co-counsel for policyholder in a claim against an insurer for a fire loss.
  • Alie v. Bertrand & Frere Construction Co. (2002), 62 O.R. (3d) 345 (C.A.). Acted as co-counsel for insurer in faulty concrete coverage litigation.
  • Ritchie (Litigation Guardian of) v. Barill (2002), 43 C.C.L.I. (3d) 234 (Ont. S.C.J.). Acted for insurer in a duty to defend application. The court held that theft of a cheque did not result in “property damage”, and that there was no duty to defend.
  • Skyway Equipment Co. Ltd. v. Guardian Insurance Co. of Canada (2002), 40 C.C.L.I. (3d) 115 (Ont. S.C.J.). Acted as co-counsel in application by insurer for allocation of settlement costs.
  • Cooper v. Farmers’ Mutual Insurance Co. (2002), 59 O.R. (3d) 417 (C.A.). Acted for policyholder in a duty to defend application. In holding that the insurer had a duty to defend, the court ruled on the admissibility of extrinsic evidence.
  • Pearson v. Inco Ltd. (2002), 27 C.P.C. (5th) 171 (Ont. S.C.J.).       Acted as co-counsel for municipality in a class action certification motion. The court declined to certify against the municipality, but certified against the remaining defendants.
  • Shewan v. Canada (Attorney General), 2001 CarswellOnt. 3049 (C.A.).  Acted for respondent in appeal on appellant’s motion to extend the time to perfect the appeal.  The Court of Appeal dismissed the appellant’s motion.
  • R.W. Hope v. Dominion of Canada General Insurance Co. (sub nom. Trafalgar Insurance Co. of Canada v. Imperial Oil Ltd.) (2001), 57 O.R. (3d) 427 (C.A.). Acted for insurer in pollution claim under CGL policy.
  • Cooper v. Farmers’ Mutual Insurance Co. (2001), 32 C.C.L.I. (3d) 284 (Ont. S.C.J.).   Acted for policyholder in a duty to defend application.
  • McCaughey v. McCaughey, 2000 CarswellOnt 8612 (S.C.J.).  Obtained summary judgment on behalf of defendant driver in a motor vehicle accident, dismissing the plaintiff’s claim.
  • Nortel Networks Corp. v. Lombard General Assurance Co. (July 28, 2000 and Feb. 22, 2001 private arbitration decisions). Acted for policyholder against insurer regarding the allocation of defence costs in dozens of actions commenced in the U.S.A.
  • Royal Insurance Co. of Canada v. Economical Mutual Insurance Co. (unreported, Dec. 18, 2000, Lamek J. Ont. S.C.J.). Acted for insurer in a claim for contribution against another insurer, regarding the defence of a mutual insured.
  • Royal Insurance Co. of Canada v. Normerica Building Systems Inc., 1999 CarswellOnt 2463 (C.A.). Acted as co-counsel for insurer in a duty to defend application involving alleged construction defects.
  • Yusuf v. MacLean, 1999 CarswellOnt 3670 (S.C.J.).  Acted for defendant in motion for leave to appeal a decision regarding the availability of a defence medical examination.

Education & Associations

  • Called to the Bar of Ontario, 1999
  • LL.B., University of Western Ontario, 1997
  • M.A., York University, 1994
  • B.A. (Honours), Glendon College, York University, 1993
  • The Advocates’ Society