Executive Summary: Key Legal and Evidentiary Issues

• The appellant sought to appeal a Superior Court judgment that suspended his Wellington motion to compel insurance defence.

• The insurer argued the policy was void ab initio due to misrepresentation and alleged increased moral risk.

• The motion judge suspended the Wellington application pending resolution of a related indemnity action based on the same policy.

• The Court of Appeal found the suspension had near-final effects and could prejudice the insured's procedural rights.

• The judge noted a potential chilling effect on the lighter burden normally applicable to duty-to-defend motions.

• Permission to appeal was granted due to the importance of the legal issue and its unresolved status in Quebec jurisprudence.

Facts of the case and procedural history

Émile Benamor owned a building that was severely damaged by fire in March 2023, tragically resulting in several deaths. Following the incident, Benamor was sued by the estates and heirs of the deceased in two civil actions for extracontractual damages. He was insured by multiple insurers, including Lloyd’s Underwriters, and expected them to provide both indemnification and a legal defence.

When Lloyd’s refused coverage, citing misrepresentation and an undisclosed moral risk linked to the alleged illegal use of the property by tenants, Benamor launched an action in June 2024 seeking indemnity for the property damage. In parallel, he filed Wellington-type motions in the two tort actions, seeking to compel Lloyd’s to assume his legal defence pending resolution of the broader coverage dispute.

Lloyd’s responded by filing a motion to suspend the Wellington motions until the final judgment in the separate indemnity proceeding. The Superior Court granted that motion on May 16, 2025 (as rectified on May 30), reasoning that judicial efficiency and proportionality favored allowing the indemnity case to conclude first, as it would directly resolve the policy’s validity.

Court’s analysis and justification for appeal permission

Benamor sought leave to appeal under Article 31 of the Code of Civil Procedure, arguing that the suspension effectively deprived him of a timely defence and placed him in financial and procedural jeopardy. The Court of Appeal agreed to hear the case. It found that although the motion judge did not formally reject the Wellington motion, the suspension amounted to a near-final ruling due to the lengthy timeline anticipated in the indemnity case—potentially lasting until 2028.

The appellate judge, the Honourable Stéphane Sansfaçon, noted that the issue raised serious legal questions about the timing and application of Article 2503 C.C.Q., which obliges insurers to defend insureds where there is a mere possibility of coverage. He further observed that suspending such motions could erode the purpose of Wellington proceedings by making their protections illusory through delay.

Outcome and procedural consequences

The Court of Appeal granted permission to appeal and set a timetable for the exchange of written submissions, dispensing with formal briefs. The matter was referred to the court roll for scheduling. The decision did not rule on the substance of the appeal but allowed it to proceed in light of the novel legal questions and the risk of irreparable prejudice to the insured if appellate review were denied.

The case highlights the tension between efficient case management and preserving the insured’s immediate rights to a defence, and it may ultimately clarify how and when Quebec courts should suspend duty-to-defend motions pending broader insurance litigation.