Alberta Court of Appeal resolves policy ambiguity in favour of insured
Introduction In 2102908 Alberta Ltd v Intact Insurance Company, 2023 ABCA 34, the Alberta Court of Appeal resolved an issue pertaining to ambiguous policy provisions in favour of the insured party. This decision highlights the importance for insurers to avoid […]
Ontario Court of Appeal upholds intentional and criminal act exclusion in denying coverage to person found not criminally responsible
Overview In the case of Butterfield v. Intact Insurance Company, the Ontario Court of Appeal considered the issue of whether an insurer has a duty to defend an insured party that engaged in an intentional and criminal act when the […]
Builder’s Risk policies in Quebec: No duty to defend
Quebec has come to be well known in the industry for the strict legal obligations it places on insurers regarding the duty to defend, pursuant to the Civil Code of Quebec (“C.c.Q.”). In a recent Superior Court case, Bridor inc. […]
Ontario Court of Appeal emphasizes the importance of succinctness in insurance contracts
Introduction In Ontario Inc. v Northbridge General Insurance Corporation, 2022 ONCA 304, the Ontario Court of Appeal (the “Court of Appeal”) highlighted the importance of succinctness in insurance contracts. Northbridge General Insurance Corporation (the “Insurer”) appealed the Ontario Superior Court […]
The BC Court of Appeal considers whether a statutory body owes individuals a private law duty of care
Introduction In Kamoto Holdings Ltd v Central Kootenay (Regional District), 2022 BCCA 282, the British Columbia Court of Appeal recently held that a BC couple, Gordon and Jill Cann (collectively, the “Canns”) were not able to bring a claim against […]
Ontario Superior Court of Justice applies pollution exclusion in denying coverage application
The Ontario Superior Court of Justice (the “Court”), sitting in Kitchener, recently ruled on a coverage application in Kin v. Ecclesiastical et al 2022 ONSC 1655[1]. The applicant sought coverage from Lloyd’s and the Court dismissed the application in its […]
Proving professional negligence claims: What expert evidence is required and when?
Introduction Professionals owe a duty to exercise the skill, care and diligence which may be reasonably expected of a person of ordinary competence, measured by the professional standard of the time. Generally speaking, in order to succeed at trial, a […]
Exceptions to mandatory costs-exclusive policy limits in Québec
Up until the adoption of Bill 82 and its regulations, Quebec was the only Canadian province where an insurer was legally obligated to take up the defence of its insured and cover legal fees over and above the limits of […]
Loss of use as “physical damage”? Case summary of the Ontario Court of Appeal decision in MDS Inc. v. Factory Mutual Insurance Company
Introduction The Ontario Court of Appeal recently issued its decision in the much-discussed case of MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 594[1]. The lower court decision from the Superior Court of Justice was of considerable interest to […]
Privacy breaches and speculative disclosure: Sufficient to certify a class action?
Introduction Companies often require individuals to provide access to their personal data in order to access products and services. In some circumstances, an individual’s digital footprint and data might be shared with a third party either intentionally or unintentionally. These […]
Interpretations of the UKSC decision Okpabi v Royal Dutch, which heightened the risk of lawsuits for Canadian companies with overseas subsidiaries
The decision of the UK Supreme Court in Okpabi and others v Royal Dutch Shell Plc and another[1](“Okpabi”) found that a UK parent company arguably owed a duty of care to Nigerian claimants relating to the actions of its Nigerian […]
Quantifying damages for breach of privacy and loss of data: Is a loss of data without actual resulting harm compensable?
Introduction The proliferation of technology has resulted in an increase of data and the use of that data for commercial (and potentially nefarious) purposes, as well as a corresponding increase in the value of that data. Given the value of […]
The enforceability of class action waivers: Are they fair game or unconscionable and contrary to public policy?
Introduction As class actions become more prevalent, many businesses are actively taking steps to avoid such potential claims. One such step may include the use of a “class action waiver” in a standard form contract. Businesses who take these steps […]
UK Supreme Court decision creates heightened risk for Canadian parent companies with overseas subsidiaries
A recent United Kingdom Supreme Court decision has lowered the bar for the argument that a UK company may be responsible for the tortious actions of its overseas subsidiary. The decision in Okpabi and others v Royal Dutch Shell Plc […]
The UK slams the door on recklessness for deliberate exclusions
The UK Supreme Court in Grant v International Insurance Company of Hanover Limited[1] considered an insurance policy that included an exclusion for “liability arising out of deliberate acts, wilful default or neglect” of an employee. This case is significant as the […]
Insurance for wrongful dismissal claims: A comparison of coverages
Coverage for workplace-related claims (such as wrongful dismissal and human rights complaints) has become increasingly common in the Canadian insurance landscape. While certain employment practices liability insurance policies (“EPLs”) do provide coverage exclusively in relation to such claims, oftentimes coverage […]
Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020
Since the onset of the COVID-19 pandemic, growing and prospective litigation has become a concern for governments in Canada. In response to such concerns, the provinces of British Columbia and Nova Scotia have introduced legislation aimed at providing protection from […]
The jury is out on business interruption coverage: Jurisprudence shows uncertainty in insurer liability
The current COVID-19 pandemic has interrupted society in a myriad of ways. While many of us have experienced loss of income due to the pandemic, businesses have suffered in unique ways. Whether or not a business remains open depends greatly, […]
Update to Bill 118: Changes to the notice period for slip and fall claims in Ontario – Letting the notice period slip by…
Further to our previous Communiqué, Bill 118: Changes to the Notice Period for Slip and Fall Claims in Ontario, on January 29, 2021, Bill 118 was proclaimed into law bringing changes to Ontario’s Occupiers’ Liability Act[1] (the “Act”). The Act […]
Policyholders emerge victorious in recent COVID-19 claims
Two U.S. courts have recently released decisions regarding insurance policies and restaurant closures due to the COVID-19 pandemic. In both of those cases, the courts found for the restaurants and against the insurance companies. In this article, we will briefly […]
Amendments to the Architectural Institute of British Columbia Code of Ethics and Professional Conduct: The introduction of the requirement to self-report
Introduction Since 2011, the Architectural Institute of British Columbia (the “AIBC”), which is the governing body for architects in the province, has been engaged in a comprehensive bylaw review process. The AIBC appointed a Bylaw Review Committee (the “BRC”), which […]
Bill 118: Changes to the notice period for slip and fall claims in Ontario
On December 8, 2020, Bill 118[1] received Royal Assent, bringing welcomed changes to Ontario’s Occupiers’ Liability Act[2] (the “Act”). The Act sets out the duties and liabilities of those in physical possession or responsibility and control of a premises, otherwise […]
Court of Appeal for Ontario rejects attempt to enforce default judgment against insurer
The Court of Appeal for Ontario has recently released a decision highlighting a little-used provision of the Insurance Act that allows parties to enforce judgments against an insurer directly. Section 132 of the Insurance Act contemplates a party obtaining a judgment […]
Is a partial restriction of business sufficient to trigger the “inability to use” clause in business interruption claims?
Introduction To combat the spread of COVID-19, many governments and public authorities issued orders mandating the closure of, or restrictions upon, businesses. One common order restricted mass gatherings of people in excess of a certain number, which may not have […]
Tarion’s response to COVID-19
The ongoing COVID-19 pandemic has raised new issues relating to insurance and the home building industry. Following a total project suspension, construction has slowly resumed in Ontario, albeit with reduced crews and strained supply chains. These constraints raise increasingly important […]
The Court’s discretion regarding the cost consequences of settlement offers: Exceptions are not the rule
The settlement process promotes judicial economy and efficiency, and eliminates the high costs of proceeding to trial. As such, parties are well-advised to make reasonable offers prior to trial and to consider acceptance seriously. This principle is entrenched in Rule […]
Update: Burns v. RBC Life Insurance Company
The Ontario Court of Appeal just released an update on certain elements of the Burns[1] decision. While the Court of Appeal did not interfere with the Motion Judge’s decision to strike out the appellant’s statement of claim against the individual […]
“Property damage” in the context of the duty to defend
St. Paul Fire and Marine Insurance Company v. AIG Insurance Company of Canada In 2002 Lockerbie & Hole Eastern Inc. installed a steam heating and cooling pipe system at York University in Toronto. The system was buried in trenches, such […]
Ontario court confirms that insurers are ultimately liable for the conduct of adjusters
In Burns v RBC Life Insurance Co.,1 the Ontario Superior Court of Justice recently confirmed that liability ultimately rests with insurers where their employees are acting within the scope of their employment. The Facts In this case, the plaintiff had […]
Case study: Can a client’s breach of contract give rise to a professional regulatory complaint against a design consultant?
Introduction To what extent can, or should, a design consultant be held responsible by their professional regulatory body for their client’s failure to follow the requirements of a contract with the Authority Having Jurisdiction (“AHJ”)? This interesting question arose in […]
Coronavirus (COVID-19) insurance policy issues
As a special service to our insurance clients, we present an outline of some typical insurance policy issues that may arise out of a contagion such as the Coronavirus. Throughout the current pandemic, we will be available to advise you […]
Exemption clauses under professional liability policies
First Condo Group Ltd. (“First Condo”) carries on business as a reserve fund planner for condominiums in Ontario. It was insured by Lloyd’s Underwriters under a Professional Insurance Policy from March 2010 to March 2014 on a claims-made basis. In […]
Supreme Court of Canada denies West Van’s appeal for defence of claim by insurers
West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110 Brief Facts West Van Holdings Ltd. (“West Van”) owned and operated a dry cleaning business in West Vancouver. Between 1998 and 2002, Intact Insurance Company insured West Van […]
Occupier’s liability and relationships – troubling times
In Nolet v. Fischer, 2020 ONCA 155, the Ontario Court of Appeal weighed in on a relatively novel occupiers’ liability issue and may have created a new avenue for people to sue their former significant others. In this case, David […]
Bad faith & punitive damages update – case commentary – Stewart v. Lloyd’s Underwriters
Introduction Recently, in Stewart v. Lloyd’s Underwriters, 2019 BCSC 1582, the British Columbia Supreme Court considered a claim for punitive damages arising from the insurer’s alleged breach of its duty of good faith. Ultimately, the court agreed that punitive damages […]
Material Misrepresentation and Material Change in Risk: BC Case Commentaries
Introduction In two recently released cases, the British Columbia Supreme Court considered an insurer’s ability to have an insurance policy declared void ab initio by reason of material misrepresentation and material change in risk. The insurer was successful in one […]
The Purpose of All Risk Builder’s Insurance
Construction contracts in Canada typically include a requirement that the builder obtain builder’s risk insurance (often known as All Risk Builder’s insurance) which covers both the builder and the owner of the property in the event of loss arising from […]
Applicable Building Codes for Construction of First Nations Land in Ontario
Introduction According to a UN Report of the Special Rapporteur on the rights of indigenous peoples1, government investment into First Nation communities across Canada has not kept pace with the demand for adequate housing and need for major renovations to […]
Setting Aside a Default Judgment: Paolucci Holdings Ltd. v. Girard Insurance & Financial Service Inc., Philip Joseph Girard, Maioha Aroha Productions Inc. and Jordan Corrigal, 2018 BCSC 1810
Introduction Although most insureds report claims in a timely fashion, there are occasions where an insured’s delay may result in default judgment being obtained against the insured. In other instances, the claim may be handled by a claims adjuster, and […]
When Is It “Appropriate” to Sue an Insurer?
The Ontario Court of Appeal recently ruled on the application of limitation periods in actions against insurers. In Nasr Hospitality Services Inc. v. Intact Insurance[1] the principal of the plaintiff corporation, Mr. Nasr, discovered water damage on the premises of […]
Construction on First Nations Land: Determining the Applicable Building Code
Introduction As recognized by the Standing Senate Committee on Aboriginal Peoples, most on-reserve housing and infrastructure is poorly built, in serious disrepair and under-supplied.[1] This recognition has led to an increase in construction projects on First Nations lands, which will […]
Tavern Claims: Intoxication Does Not Equal Liability
Tort claims against tavern owners in the province of Ontario are typically advanced as a breach of the common law duty of care and a breach of the Liquor Licence Act[1] provisions in relation to the service of alcohol. The […]
Who is My Neighbour? SCC Rules on Foreseeability and the Duty of Care in Tort Law
In Canadian tort law, a duty of care requires a relationship of sufficient proximity. That relationship is informed by the foreseeability of an adverse consequence of one’s actions, subject to policy reasons that a duty of care should not be […]
Liability Issues for Architects Revisited: An Analysis of Vermilion & District Housing Foundation v Binder Construction Limited
In the June 6, 2017 decision of Vermilion & District Housing Foundation v Binder Construction Limited, 2017 ABQB 365, the Alberta Court of Queen’s Bench considered claims by a building owner against multiple parties arising from alleged defects with the […]
When Is a Release Full and Final?
In the May 5, 2017 decision of Biancaniello v. DMCT LLP, the Ontario Court of Appeal considered whether a release operated to bar a claim even though the claim was unanticipated and unknown at the time the release was executed […]
What To Do With Sleeping Dogs: Dismissal for Delay
In most Canadian jurisdictions, a plaintiff’s claim can be dismissed for delay. Lord Salmon, in Fitzpatrick v. Batger & Co., [1967] 2 All E.R. 657, articulated the problem of dormant claims, as follows: [The defendants] no doubt, however, were relying […]
Director’s Liability for Corporate Negligence
Plaintiffs often cast the net broadly to capture every party with assets or insurance capable of satisfying a potential judgment. Directors are often named as defendants in claims related to the negligence of the companies they oversee. Under Canadian law, […]
The Latest Word from the Ontario Court of Appeal on the Insurance Tripartite Relationship: a Cautionary Reminder
The general concept of the tripartite relationship is a familiar one to those in the insurance industry: An insurer retains a lawyer to represent its insured in a civil proceeding. The lawyer’s primary duty and loyalty is to the insured, […]
Don’t Give the Game Away – Tips on Maintaining Litigation Privilege
Courts have long recognized the origin and rationale of solicitor-client privilege as a necessary and essential tool for the effective administration of justice. A related but conceptually distinct protection is that of litigation privilege. While both forms of privilege serve […]
Limitation of Liability Clauses: Are They Enforceable and Effective?
A frequent issue raised by design consultants is the extent to which they can limit liability for claims through limitation of liability clauses. Although such clauses are enforceable, recent case law raises questions as to their practical effectiveness. Enforceability of […]
Third Party Notices Must be Filed Fast: BC Court Pronounces that Expediency does not Trump Notices
Fault in construction claims is rarely black or white. Claims usually begin with multiple defendants and, as the litigation progresses, the existing parties often discover that additional potentially at-fault entities should be added. In British Columbia, the proper way to […]
Triple Jeopardy: Civil, Disciplinary, and Regulatory Proceedings against Professionals
Members of regulated professions, such as engineers, architects, financial advisors, and health professionals, can face multiple proceedings arising from the same conduct. For instance, for a single event, an engineer may be sued in civil proceedings for negligence, be charged […]
The Whole File and Nothing But the File: A Precautionary Tale regarding Disclosure and Production of an Insurer’s Underwriting, and Claims and Investigation Files in the Context of Coverage and Bad Faith Claims
The scope of disclosure and corresponding production of documents typically becomes an issue in the context of an insured’s claim against an insurer for coverage and bad faith. Inevitably, the insured will demand disclosure and production of the underwriting, and/or […]
Record Keeping: Document Retention Recommendations for Building Professionals
Introduction Practically speaking, it is often inconvenient and costly for building professionals to keep project files; understandably, they do not wish to retain files any longer than necessary. In British Columbia, the provisions of the Limitation Act, S.B.C. 2012, c. […]
