A Toronto dentist who pays $10,000 a year for insurance that includes pandemic coverage can’t collect. And he is not alone.

When Dr. Michael Duchnay had to close his west end Toronto dental practice due to the pandemic, it was catastrophic, but there was one stroke of good luck: He had insurance. In fact, his business policy explicitly mentions pandemic-caused closures.

But since he shuttered his shop March 15 after an advisory from the Royal College of Dental Surgeons of Ontario strongly recommended he do so, his attempts to collect have been rebuffed time and again.

He's far from alone.

"I would say that given the extent of the loss here, cutting across multiple industries, really all sectors, the insurers are in a bit of a difficult situation," says Toronto lawyer Hovsep Afarian, who specializes in insurance coverage law.

"So their reflexive response has been, let's deny and we'll sort things out later," says Afarian, who works at the national firm McCarthy Tetrault LLP.

He says denials are being made to all kinds of claims - likely, he believes, because the insurance companies are hoping that Ottawa will offer up more aid in the meantime.

"I think a part of it may be motivated by the potential for the government to step in and provide alternative avenues for redress," says Afarian who has already taken on pandemic clients.

"So if there's another pocket involved, the insurers have essentially mitigated their loss because no doubt they're going to say 'look to the government first.' "

But waiting doesn't sit well with Duchnay, whose policy, underwritten by the insurance giant Aviva, costs him $10,000 a year.

Duchnay's policy is brokered by the non-profit CDSPI, which caters to dentists in the province. And he says most Ontario dentists would have the same package, with the same pandemic provisions.

Duchnay also says that the initial rejections of his claim were based on the argument that the decision to close his office was voluntary. And indeed, the March 15 college directive was just a "strong recommendation" that dentist cease doing almost any common procedure, he says.

But Duchnay, who has worked at the college, says that is the strongest legal wording the body has at its disposal and that it would be clear to any dentist reading it that the recommendation was tantamount to a stop practicing order.

And since then, frustrating back and fourths with both the insurance company and broker had produced no results as of Tuesday, leaving him to deal with staff layoffs and unaffordable bills.

Afarian says most businesses would not have pandemic language written into their property policies. If they don't, he says, there is a real legal question as to whether pandemic related interruptions are covered.

"Business interruption is usually a component of a property policy (for which) you need physical damage," Afarian says.

"So the debate in the industry is 'do we have physical damage if there is a virus in the building?'"

That issue is already before the courts in the United States and will doubtless be litigated in Canada as well, he says.

"It's going to be an interesting debate," he says, adding that awards may well come down to whether there was an actual case of COVID-19 or the mere threat of the virus in a particular business.

For those, like Duchnay, whose policies specifically mention pandemics however, claim refusals are more perplexing, Afarian says.

"When they have perhaps every single dentist office in Toronto making that kind of a claim ... they're probably wanting to regroup and see what kind of programs are put into place," he says.

David Mackenzie, a Toronto lawyer who acts as council for major Canadian and international insurers, says income loss claims made on property policies are typically dependent on physical damage being done by fires, floods, windstorms and the like.

"The business income protection will say 'if you have physical damage to property and you lose business income because of that, then we will cover your business income,' " says Mackenzie, who practices at the firm Blaney McMurtry LLP.

"The pandemic isn't a physical injury to property and so that's the problem that most (people), I think, are running into. That's the basis of most denials of coverage," he says.

Mackenzie agrees that vast income losses experienced by businesses across the country during the pandemic may well need government money to redress.

"The insurance industry hasn't issued policies to deal with this problem. It wasn't within their contemplation that they'd be paying out claims for a pandemic," he says.

"And so to the extent that this particular problem exists, then it probably is going to have to be someone like the government that steps in and does it."

But insurers do face increasing perils as the pandemic lengthens, Mackenzie says.

"The longer you leave businesses and buildings unoccupied the more likely they are to suffer damage," he says.

Afrarian says an official for a local brokerage told him last week that the firm had already seen more than 1,300 coronavirus-based claims come into its office.

And Afarian sees the potential of a lot more work for lawyers in his legal specialty.

"The insurance industry obviously thinks that having a virus in the building does not constitute property damage and they want to be able to litigate that," he says.

"And when the stakes are this high, they are willing to spend money on litigation."