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Smitten Baby Products Inc v. FirstOnSite Restoration Limited, 2025 ONSC 4281

  • May 9, 2025

This case addresses whether a restoration contractor retained by an insurer’s adjuster owes a duty of care to the insured for pure economic loss. Following a 2018 water loss at the plaintiff’s warehouse, the insurers’ adjuster engaged FirstOnSite to investigate and report. The plaintiff later sued the underwriters, the adjusters, and FirstOnSite for business losses said to flow from delay in the adjustment. On a rule 21 motion, Justice Centa held it is plain and obvious that FirstOnSite owed no duty of care to the plaintiff and dismissed the claim against it.

The court found the pleading did not fall within the established negligent misrepresentation or negligent performance of a service category because there were no material facts of an undertaking by FirstOnSite to the plaintiff or reasonable reliance by the plaintiff. While foreseeability and proximity could be alleged under a novel duty analysis, residual policy considerations negate any prima facie duty. The insured has meaningful contractual remedies against its insurers, and imposing a concurrent duty on the insurer’s investigator would distort contractual relationships and create conflicts between the investigator’s obligations to the insurer and a proposed duty to the insured. The pleading also failed to set out material facts of factual causation for the alleged delay losses. Leave to amend was refused, and the action against FirstOnSite was dismissed.

Full decision here

TGP Analysis

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  • FILED UNDER Municipal liability, Duty of Care, Rule 21 Motion
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