Keith N. Batten  

Partner

Executive Summary

Keith Batten practises litigation, focused on insurance coverage opinions, defence of insurance coverage actions and defence of insurance broker's errors and omissions claims. A partner in the Toronto office of Borden Ladner Gervais LLP, Keith has acted in defence of numerous insurance broker's errors and omissions claims for major insurance brokerages and professional liability insurers. Claims have involved questions of coverage and interpretation under many forms of policy including commercial property, homeowners, general liability, professional liability, marine, fidelity, surety, entertainment, livestock and automobile.

Keith acts in defence of coverage claims under property and liability policies, and in defence of insurance coverage disputes generally, including mass tort and institutional sexual abuse. He provides coverage opinions on insurance policies including property, general liability and professional liability, including monitoring of coverage and defence issues involving actions under such policies. Keith has acted in such matters before all levels of court in Ontario at trial and appeal, and has acted on leave applications to the Supreme Court of Canada as applicant and respondent.

Other experience includes drafting and review of policy wordings including general and professional liability forms and endorsements.

Representative Work

  • 1604945 Ontario Inc. v. Lloyd’s Underwriters, [2010] ILR 1 4969 – upheld absolute asbestos exclusion in commercial policy.
  • Clausen v. Royal & Sun Alliance Insurance Company of Canada (November 9, 2004 – Ont. SCJ) – upheld sexual abuse exclusion in homeowner’s policy.
  • Blue Mountain (Town) v. Royal & Sun Alliance Insurance Company of Canada (October 4, 2004 – Ont. CA).
  • Re Laidlaw Inc. (2003), 46 CCLI (3d) 263 (Ont. SCJ) – successfully obtained order for first come first served distribution where known claims exceeded policy limits.
  • Thompson v. Warriner (May 7, 2002 – Ont. CA) – Upheld abuse exclusion in commercial policy.
  • Alie v. Bertrand, [2003] ILR I-4146 (Ont. CA)(appeal – coverage) – a leading CGL insurance decision in Canada on property damage and triggers of coverage involving delayed manifestation of property damage, as well as contribution between primary and excess insurers.
  • Alie v. Bertrand (2001), 30 CCLI (3d) 159 (Ont. CA)(appeal – liability) leave to appeal to the SCC refused, [2001] SCCA No. 418.
  • Alie v. Bertrand & Freres Construction Co. (2000), 30 CCLI (3d) 166 (Ont. SCJ)(trial – liability and coverage).
  • Marler v. Schmucki, [1996] OJ No. 3865 (OCJ) – successfully defended insurance broker E&O claim involving pleasure craft loss.

Publications & Presentations

  • Author, BLG’s Canadian Insurance Law Newsletter: “Class Actions and the Insurance Industry,” Fall 2011 (with Tim Buckley and Cheryl Woodin); “Marijuana” Exclusion Upheld on Appeal, Spring 2011; “A Survey of Some Recent Ontario Coverage Cases,” Spring 2010; “A Survey of Some Recent Ontario Coverage Cases,” Winter 2009; “Ontario Court of Appeal Clarifies When ‘Other Insurance’ Clauses Will Come in to Play,” Winter 2008; “Supreme Court Clarifies the Test for Use and Operation of Motor Vehicles in the Third Party Context,” Winter 2008 (with Karen Hamilton); “Ontario Court of Appeal Provides Definitive Guidance on the Standard Form ‘Criminal Act’ Exclusion,” Summer 2007.
  • Author, “Class Actions in Canada are on the Rise,” Canadian Insurance Top Broker, May 2011 (with Tim Buckley and Cheryl Woodin).
  • Author, “Ontario Court of Appeal Clarifies When ‘Other Insurance’ Clauses will Come in to Play,” Canadian Journal of Insurance Law, September 2007.
  • Contributing Author, “Insurance Broker Liability” chapter in Business Interruption Insurance, Canada Law Book, 2004, and 2nd Edition, 2006 (Editors: S.L. Gosnell, B.J. Webster and J.S. Seigel).
  • Author, “ Review of Some Significant Insurance Issues in the Sexual Abuse Context,” Canadian Journal of Insurance Law, November 2005.
  • Author, BLG’s Canadian Insurance Law Newsletter: “Notice of Cancellation to Additional Insureds,” Spring 2006; “Abuse Coverage: Missing Policies and Coverage Trigger,” Spring 2005; “Is Mandatory Mediation Truly Confidential?” Spring 2004; “Update: Alie v. Bertrand,” Fall 2003; “Ontario Court of Appeal Delivers its Insurance Decision in the Now Famous Concrete Case – Alie v. Bertrand,” Spring 2003; “Mid-Term Coverage Reductions Will Not be Effective Without the Insured's Agreement,” Fall 2002; “Duty to Defend Claims Arising out of Intentional Conduct – Lloyd's of London v. Scalera,” Winter 2000/2001; “Allegation of Policy Breach Suspends Duty to Defend – Royal & Sun Alliance v. Fiberglas Canada,” Summer 2000; “‘Claims Made and Reported’ Language Upheld – Stuart v. Hutchins,” Summer 1999; “Cottage Properties and the Vacancy Exclusion,” Fall 1997; “Can an Insurer be Found Liable for the Negligence of an Independent Insurance Broker? – Miller v. Guardian Insurance,” Fall 1996; “The British Columbia Court of Appeal Revisits the Meaning of 'Bodily Injury' in Sexual Abuse Claims,” Fall 1996; “Update: Liability of Insurance Brokers to Insurers – Hunt v. Brandie,” Fall 1995; “Update: Duty to Defend – Slough Estates v. Federal Pioneer,” Spring 1995; “Liability of Insurance Brokers to Insurers – Zanatta Installations v. Elite Insurance,” Fall 1994”; “Just Stay Awhile,” Spring 1994.
  • Author/Speaker, in-house seminars to a major insurance brokerage and others on prevention of errors and omissions claims: “Liability of Insurance Agents and Brokers: An Overview, Canadian Association of Independent Life Brokerage Agencies,” October 2006; “Liability of Insurance Brokers: An Overview and Focus on Additional Insureds in the Construction Context,” June 2000; “Liability of Insurance Agents and Brokers: An Overview, Some Recent Cases of Note and Practical Tips for Prevention,” September 1999 – Toronto Insurance Conference; “General E & O Overview and Practical Tips for Prevention,” February 1999.
  • Author, “An Overview of Some Significant Insurance Issues in the Sexual Abuse Context,” Canadian Risk & Insurance Managers Society Conference, October 2004.
  • Author, “The Duty to Defend,” Canadian Insurance Magazine, September 2004.
  • Author, “Punitive Damages Awards in Insurance Cases: Where is Canada Headed?” American Bar Association Coverage journal, July/August 2003 (with Peter R. Braund).
  • Author, “Duty to Defend Claims Arising out of Intentional Conduct – The View From Canada,” American Bar Association Coverage journal, July/August 2001.

Rankings & Recognitions

  • Recognized in the 2016 edition (and since 2013) of Who's Who Legal: Canada (Insurance and Reinsurance).
  • Selected by peers for inclusion in 2016 edition (and since 2009) of The Best Lawyers in Canada® (Insurance Law).
  • Recognized in the 2015, 2014 and 2013 editions of The Canadian Legal Lexpert® Directory (Litigation – Commercial Insurance).