Case Summary: Workman Optometry Professional Corporation v. Certas Home and Auto Insurance Company, 2023 ONSC 3356

Recently, the Ontario Superior Court released its decision in Workman Optometry Professional Corporation v. Certas Home and Auto Insurance Company, 2023 ONSC 3356 (“Workman Optometry”). Workman Optometry is a national class action comprised of businesses alleged to have suffered business interruption losses due to COVID-19. The class action initially named 16 insurers as defendants.

The court determined that the presence of COVID-19 or an order of a civil authority that was made due to COVID-19 does not constitute physical loss within the meaning of the business interruption provisions of each defendant’s property insurance policy.

Of significance was the wording of the policies being considered: much of the decision turned on the specific language referring to “physical loss or damage to property”. The court explained that insurance policies must be read in their plain meaning and in the context of the insurance agreement. It was determined that the common understanding of the policy wording did not include viruses, rather it was in contemplation of damage that would, “alter the appearance, shape, colour, structure, or other material dimension of the property”.

This decision followed the precedent set by other cases decided in Canada and the United States that dealt with insurance claims following the advent of the COVID-19 Pandemic. In Workman Optometry, each plaintiff shared the common characteristic of relying on personal customer/client traffic in and out of their premises to generate sales of goods and services. The arrival of the pandemic and the subsequent global response affected the profits of the plaintiffs, and they sought coverage through their respective “all-risk” insurance policies for physical loss or damage to property.  However, the court did not agree that the losses incurred were the result of physical loss or damage to property. Penny, J. distinguished that viruses affect people, not inanimate surfaces [property]. It was also noted that the danger of COVID-19 is to people in close proximity to one another, not to the real property itself. The property at each business premises was never damaged in a physical sense. As such, the claim for physical damage or loss did not apply. Similarly, the plaintiffs’ secondary claim for loss of use of their property was not successful because the insurance policies were not in place to protect against loss of use, only physical loss or damage to property. Lastly, the claim regarding potential exclusions of the defendants’ property insurance that would result in coverage for such loss or damage was not addressed in the decision because it was only relevant if the judge had ruled in favour of the plaintiffs’ claim.

In sum, based on the wording of the policies, it was determined that the presence or threatened presence of COVID-19 does not fit the definition of physical loss or damage to the plaintiffs’ property. The entire reasons for the decision can be found here.

Contacting a lawyer on this subject

For more information about insurance coverage issues, contact Jennifer D. Pereira, K.C. at 1-306-933-1320 or [email protected].

Related News and Articles

Jennifer Pereira, K.C. presents at Arc Group Canada Insurance Trends 2023 Seminar

Join Jennifer Pereira, K.C., in Toronto on November 16 for a robust discussion on emerging risks and trends that will impact the insurance industry in the upcoming year. Hosted by the Arc Group Canada the insurance seminar will be followed by a cocktail reception with guest speaker Hayley Wickenheiser, an Olympic gold medalist, author, motivational speaker, former Canadian ice hockey player, resident physician and assistant general manager for the Toronto Maple Leafs.

Jennifer Huneault, LL.B. CRM of Alexander Holburn will be moderating an insightful discussion on how the insurance industry will be affected by arising risks and trends in 2023. The panel will address the impact that cyber breaches and inflation will have on the North American market, challenges facing the London market including insolvency-based claims and the impact of social inflation, and global trends in class action litigation.

Hollis BromleyDavid McKnight and Scott Harcus of Alexander Holburn will be speaking on the panel alongside their peers from Canada, the US and the UK, including Catherine Chaput (Quebec), Jennifer Pereira, K.C., (Saskatoon), Jennifer Stegmaier, (Chicago), and William Naylor (London, UK). For more information about the event and the speakers, please visit:

Related News and Articles

M. Kim Anderson, K.C., speaks at Saskatchewan Joint CICMA-CIAA Education Conference

Join Kim Anderson, K.C. at the Saskatchewan Joint CICMA-CIAA Education conference, where he will be discussing Documents that Safeguard the Claims Investigation Process.

The Canadian Insurance Claims Manager Association (CICMA) is an organization that brings claims managers together to exchange information in matters pertaining to the settlement of claims. CICMA is also responsible for the administration of the Canadian Inter-Company Arbitration Agreement. For more information about CICMA click here.

Related News and Articles

Robertson Stromberg welcomes Brittany Bezmutko and Jesse Hayward

Robertson Stromberg is pleased to welcome associates Brittany Bezmutko and Jesse Hayward to the firm.

Called to the bar in June 2022, Brittany Bezmutko has dedicated her practice to Family Law and Employment Law. While attending law school, Brittany volunteered with Pro Bono Students Canada in several capacities, including the Family Legal Assistance Clinics in which she provided legal information to community members regarding family law matters.    


Direct: (306) 933-1358
Main: (306) 652-7575
Fax: (306) 652-2445
Email: [email protected]

Jesse Hayward maintains a general civil litigation practice with a particular interest in Administrative Law, Commercial Litigation, Construction, Insurance, and Labour and Employment Law. He has represented clients in the Court of Queen’s Bench, Provincial Court, and various boards and tribunals.


Direct: (306) 933-1348
Main: (306) 652-7575
Fax: (306) 652-2445
Email: [email protected]


Insurance Companies Cannot Compel Customers to Undergo Genetic Testing

In a recent Reference re Genetic Non-Discrimination Act, 2020 SCC 17, the Supreme Court of Canada upheld a federal law that forbids companies from making people undergo genetic testing before buying insurance or other services.

The Genetic Non-Discrimination Act (the Act) also outlaws the practice of requiring the disclosure of existing genetic test results as a condition for obtaining such services or entering into a contract.

The act is intended to ensure Canadians can take genetic tests to help identify health risks without fear that the results will pose a disadvantage when seeking life or health insurance.

In a 5-4 decision, the Supreme Court held that the measures are a valid exercise of Parliament’s power over criminal law set out in the Constitution.

Penalties for violating the provisions of the Act include a fine of up to $1 million and five years in prison.

This case came to the Supreme Court as an appeal from a provincial “reference.” References are questions that governments ask courts for their opinion on. Reference re Genetic Non-Discrimination Act began as a reference to the Quebec Court of Appeal by the Quebec government.

For more information, contact Jennifer D. Pereira, Q.C. at [email protected]

Commercial Leases and the Impact of COVID-19

The novel coronavirus (COVID-19) continues to affect the day-to-day lives of millions of Canadians. As a result, businesses continue to face issues regarding cash flow, which in turn forces those businesses into difficult decisions as to which obligations they will pay, and which obligations will need to be deferred.

One of the consequences of these difficult decisions is that commercial landlords are now faced with tenants who either cannot pay their rent, do not wish to pay rent or have abandoned or are contemplating the abandonment of leased property. While COVID-19 gives rise to new business considerations, as will be seen below, the rights of the commercial landlord remain relatively unchanged.

This article, originally posted to our website in May, 2020, was amended on June 15, 2020 to reflect the emergency order issued by the Government of Saskatchewan in relation to the eviction of commercial tenants. This moratorium was issued pursuant to the provisions of The Emergency Planning Act.

It should be noted that the moratorium issued only applies to landlord who were eligible, but declined to apply, for the Canada Emergency Commercial Rent Assistance program (“CECRA”). This moratorium was issued in large part to assist new businesses in reopening during COVID-19.

Your Tenant Cannot (or Will Not) Pay Rent


As was the case before COVID-19, where a tenant fails to pay rent in a timely fashion the landlord, who has applied under the CECRA, is able to demand the rent and as permitted under the lease, takes steps to distrain or evict the tenant and take possession of the property. The Saskatchewan Legislature has, at this time, not taken any steps to alter the rights and remedies of the commercial landlord.

Before concluding that the tenant is offside their obligations by way of non-payment of rent, consideration should be given to whether the lease has a force majeure clause and if so, what effect that clause may have on the tenant’s position. For more information on this subject, Marinko Jelovic has prepared an article, Force Majeure and the Doctrine of Frustration – COVID-19, which addresses this issue with more specificity.

Before deciding on a course of action, a landlord may wish to give consideration to their existing relationship with the tenant and the current economic climate. A tenant who has occupied the same property for an extended period of time or is in the midst of a long-term lease, and who has not voluntarily defaulted on payment may still be better than the alternative. When the time arises for the preventative restrictions imposed by the Government of Saskatchewan to be lifted, prospective new tenants may be a rare commodity. If you consider the business foundation for a long-term tenant to be sound you may prefer having your existing tenant when business resumes, rather looking for a new occupant. Short term pain may be balanced by long term gain.

On the other hand, if the tenant is in default and the history of the landlord-tenant relationship is not happy one, this may be an opportunity to end the relationship, with a view to attracting a more desirable tenant.

Much will turn on the landlord’s view of the value of its relationship with the tenant.

To the contrary, where a landlord has failed or otherwise declined to take part on the CECRA program, the landlord is now prevented from re-entering the property, terminating the lease or exercising the right of distraint. The Government of Saskatchewan has, at this time, limited the remedies available to a commercial landlord who has elected not to participate in CECRA.

Your Tenant Abandons Their Lease


In Saskatchewan the legislature has declined to, at this time, amend or enact new legislation that would affect a commercial landlord’s rights. As such, the provisions of The Landlord and Tenant Act continue to apply, as do the provisions of the lease itself.

Under The Landlord and Tenant Act, if the tenant abandons their lease leaving rent unpaid a landlord may exercise its right of distress. In doing so, the landlord is permitted to retain and sell personal property left on the premises by the tenant. However, given the current economic climate a landlord may wish to consider whether or not exercising their right of distress makes financial sense.

While The Landlord and Tenant Act permits the landlord to recover the costs of the seizure and sale of abandoned or seized property, the practical reality is that the property may not be worth the cost and effort of sale. Much will turn on the nature of the tenant’s business and the type of property present in the leased space. As businesses continue to attempt to cut down and reduce overhead costs, depending on the nature of the tenant’s business there may be a reduced, or non-existent, resale market for the goods due to COVID-19. Attempting to seize and sell the property may result in substantial costs being incurred, with little net recovery, if any, toward the unpaid rent.

However, if the decision is to move to terminate, or to accept abandonment, the landlord can proceed in the usual way. The landlord’s rights are largely governed by the lease. Most provide that the landlord may bring action to recover unpaid rent, as well as rent for the remainder of the term of the lease, should a tenant abandon its lease (subject of course to the duty to mitigate and find a new tenant as soon as reasonably possible, though depending on the short and mid-term commercial leasing market it may be of little moment). For more information on the subject, please see the following article on enforcing the landlord’s rights:

It should be noted that nothing in the in the June 5 moratorium impacts the landlords rights in the event the tenant has abandon their lease. Similarly, the landlords right remain unaffected if the lease expired on or before June 4, 2020.

Where the lease expires after June 4, 2020, and the landlord has elected not to sign up for or participated in the CECRA



As the consequences of COVID-19 continue to be felt in the business community, and with no timeline as to when the government imposed restrictions will be softened or lifted, landlords will continue to face business decisions on how to deal with tenants who do not pay their rent. Consideration must be given to the risk of evicting a tenant and attempting to recover unpaid rent versus the cost and time spent attracting a new tenant. Landlords will know that when the Government of Saskatchewan lifts social distancing restrictions, it may still be several months before new tenants can be found, as the economy slowly recovers from the economic downturn. As such, maintaining strong business relationships during this pandemic may best serve to provide a practical benefit down the road. Where the relationship is not so strong, different considerations may apply, and ending the landlord-tenant relationship may be the best outcome.

For more information, please contact:


M Kim Anderson, Q.C.


Email: [email protected]


Travis K. Kusch


Email: [email protected]

Whether it’s personal or business, we handle cases ranging from wills to overseeing complex business deals, and everything in between. Our success comes as a result of our collective effort. Combining the experience of your lawyer together with the resources of our team, you can put your trust in us to handle your case with confidence.

Area of ExpertiseInsurance