BC Supreme Court determines whether a third-party claim can be commenced by way of a separate notice of civil claimIntroduction In Prime Time (Abby Lane) Inc. v. DGBK Architects, 2022 BCSC 1799 (“Prime Time”), the BC Supreme Court answered the long-standing question of whether it is appropriate to commence a third-party claim by way of a separate notice of... |
Ontario Court of Appeal emphasizes the importance of succinctness in insurance contractsIntroduction 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... |
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... |
The Supreme Court of Canada addresses promissory estoppel in the insurance contextIntroduction In the recent decision of Trial Lawyers Association of British Columbia v Royal & Sun Alliance Insurance Company of Canada, the Supreme Court of Canada considered the application of the doctrine of promissory estoppel in the context of a... |
Case Commentary: Nelson (City) v. Marchi, 2021 SCC 41 – The Supreme Court of Canada clarifies the distinction between core and non-core policy decisionsIntroduction In the recent decision of Nelson (City) v. Marchi, the Supreme Court of Canada clarified the law with respect to what constitutes a “core policy decision” rendering a government or public authority immune from liability. In this particular case,... |
Henderson v. Northbridge General Insurance Corporation, 2021 BCSC 1841: The duty to defend claims alleging intentional actsIntroduction Recently, in the context of an alleged “shaken baby” claim, the Supreme Court of British Columbia considered whether an insurer had a duty to defend a claim against its insured arising from allegations framed in both negligence and assault. ... |
Loss of use as “physical damage”? Case summary of the Ontario Court of Appeal decision in MDS Inc. v. Factory Mutual Insurance CompanyIntroduction 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... |
Public engagement for infrastructure projectsCanadian Consulting Engineer Public engagement can serve a fundamental role in the democratic process. It usually involves a level of government deliberately involving the public in a decision-making process. The level of engagement can range from requesting input to granting decision-making authority. In... |
Amendments to the Architectural Institute of British Columbia Code of Ethics and Professional Conduct: The introduction of the requirement to self-reportIntroduction 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... |
Leave to appeal duty to defend issues denied by Supreme Court of CanadaRecently, the Supreme Court of Canada denied leave to appeal decisions of the Alberta Court of Appeal and the Ontario Court of Appeal, respectively, regarding the duty to defend. As a result, the appellate decisions stand and are discussed below.... |
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... |
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... |
Case commentary: Issuance of building permit for construction of residential/commercial strata “unreasonable” without involvement of architectIntroduction In the recent case of Architectural Institute of British Columbia v. Langford (City), the British Columbia Supreme Court conducted a judicial review of the issuance of a building permit for the construction of a residential/commercial strata complex in the... |
Pennsylvania court decision discusses physical damage aspect of COVID-19Introduction One of the biggest considerations with respect to whether COVID-19 related losses will be covered by business interruption insurance is whether those losses can be considered “physical loss” or “damage”. Although unrelated to the interpretation of an insurance policy,... |
Subrogating against government authorities for COVID-19 lossesIntroduction The worldwide number of COVID-19 cases is growing daily, with nearly two million currently active cases.[1] Of those cases, approximately 27,000 are within Canada.[2] As the pandemic continues worldwide, more claims have and will be made to insurers regarding... |
Causation and concurrent causes of business interruption involving COVID-19Introduction As the coronavirus pandemic (COVID-19) continues to impact businesses, insurance companies continue to face business interruption claims. As most commercial property policies typically insure against “direct physical loss to the property”, an inquiry into causation is required to determine... |
All-risks property insurance: Meaning of physical damageA recent decision of the Ontario Superior Court of Justice (MDS Inc. v. Factory Mutual Insurance Company (FM Global)) suggests that closures due to COVID-19 could trigger coverage under some business interruption policies. As discussed in a previous Communique, there... |
Steps Canadian regulators can (and should) take to minimize the impacts of COVID-19 on insurersIntroduction The Canadian governments, both provincially and federally, have taken many steps to assist different industries survive the economic downturn caused by the coronavirus (COVID-19) pandemic. As of yet, none of these measures have been directly aimed at assisting the... |
All perils policies: Is COVID-19 an insured peril?As the worldwide pandemic continues to rage on, losses faced by businesses increase without any certainty as to when they might end. Such expansive loss has raised many questions for insurers facing potential claims for coverage. One such question is... |
The loss of perishable products: Does this constitute physical damage sufficient to trigger coverage?One of the many issues arising from the coronavirus (COVID-19) pandemic is whether business losses resulting from mandatory and voluntary shut-downs will be covered under business interruption coverage. Most business interruption policies require direct loss or physical damage to property... |
Proposed National Class Action filed seeking payouts for business interruption insuranceIntroduction A Saskatchewan-based restaurant has launched a proposed national class action challenging insurers’ refusal to pay business interruption claims in relation to losses suffered due to COVID-19.[1] The action names Aviva Canada Inc., Co-Operators General Insurance Company, Desjardins Financial Security... |
Coverage under business interruption and general liability policies for Coronavirus related claimsIntroduction The Coronavirus pandemic has affected the lives of everyone on Earth in a way that none of us have experienced before. To date there are more than 525,000 cases worldwide, just over 4,000 of which are in Canada.[1] The... |
Case Commentary: Provost v. Dueck Downtown Chevrolet Buick GMC Limited, 2020 BCCA 86A recent case issued by the British Columbia Court of Appeal provides guidance regarding the duty of care owed by business owners and confirmed the principles with respect to the determination of a novel duty of care. A GM Sierra... |
Validity of builder lien claimsJVD Installations Inc. v. Skookum Creek Power Partnership, 2020 BCSC 374 On March 13, 2020, the Supreme Court of British Columbia released its decision in JVD Installations Inc. v. Skookum Creek Power Partnership, 2020 BCSC 374. This decision discussed and... |
Joint & Several Liability for EngineersCanadian Consulting Engineer, March/April 2020 Construction litigation involving engineers has become more common, but also more complex. One example of this trend, which can be particularly problematic, is the rule of joint and several liability. This rule can encourage a ‘shotgun’ approach to litigation, give... |
Negotiating terms beyond standard formsA recent decision of the British Columbia Supreme Court (Surespan Structures Ltd. v. Lloyds Underwriters, 2020 BCSC 27) confirms that when insurance companies negotiate the terms of a policy beyond their standard forms or precedents, they must beware of failing to... |
Bad faith and punitive damages: Stewart v. Lloyd’s UnderwritersThe Lawyer's Daily In the case of 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 the duty of good faith. Read the full article: Bad faith and... |
Bad faith & punitive damages update – case commentary – Stewart v. Lloyd’s UnderwritersIntroduction 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 CommentariesIntroduction 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... |
Construction on First Nations Land: Determining the Applicable Building CodeIntroduction 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... |
Clarifying the “Trilogy” and the Covenant to Insure: Royal Host GP Inc. v. 1842259 Ontario Ltd.Introduction In Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, the Ontario Court of Appeal reversed the motion judge’s decision, clarified what is known as the “Trilogy” and allowed a landlord to advance a subrogated action against... |
Insurance Coverage for Natural DisastersCanada's Equine Guide 2018, p. 20-24 In recent years, many parts of Canada have been devastated by natural disasters, including forest fires, ice storms, and floods. These disasters have impacted the equine community by causing loss and damage to barns, fencing, pastures, feed supplies and livestock,... |
Case Commentary: Himark Homes Ltd. v Janas, 2017 BCSC 1719 and Subrogated Warranty Claims Against Building ConsultantsIntroduction All new homes constructed in British Columbia are required to be protected by home warranty insurance obtained by the builder. Generally, pursuant to the terms and conditions of the warranty insurance, the builder is required to remediate any deficiencies... |
Intentional Acts, Artful Pleading and the Duty to Defend in British ColumbiaThe recent Supreme Court of British Columbia case of Co-operators General Insurance Company v. Kane, 2017 BCSC 1720 confirms the broad manner in which British Columbia courts interpret the duty to defend, and the extent to which that duty can... |
Mediation in British Columbia: Does Mandatory Mediation Mean Mandatory Attendance for Lloyd’s Underwriters?Introduction While claims against building professionals and consultants are common, very few of those claims ever go to trial. The vast majority of claims are resolved through mediation. In British Columbia, any party to an action can force the other... |
Equine Insurance: Understanding the Fine Print of your PolicyCanada's Equine Guide 2017 All horse owners and riders know that equine activities can be dangerous. Despite best efforts to stay safe around horses, accidents happen. When an accident occurs, insurance coverage may be available to respond to the injury or property damages. |
Case Commentary: Defeating an Application to be Added as a Defendant – The Owners, Strata Plan KAS 2971 v. American Bankers Insurance Company of Florida, et al., 2016 BCSC 581Most actions commenced by a strata corporation[1] alleging negligence in the design and construction of their condominium development name multiple parties as defendants, including the original owner/developer, municipality, general contractor, trades, material suppliers and all consultants, including the architect, engineers... |
Karen Weslowski comments on importance of clear communication and contractsHorse Sport Magazine, "Ultimate Guide to Choosing a Boarding Stable" In the article published in the March 2016 issue of Horse Sport Magazine, she comments: “The key to a successful relationship is managing expectations; communication is key. […] Have a lawyer draft up a contract that contains all of the legal... |
The Risks and Rewards of Buying at an AuctionEquine Consumers' Guide 2016 Buying a horse is an important decision that usually involves careful planning, consideration, and research. Buying a horse at auction can remove or reduce the ability to exercise due diligence in the buying process. “Deals” and good quality horses can... |
Gone but Not Forgotten – Water Ingress Claims in British ColumbiaWill rainscreens and building envelope professionals prevent another “Leaky Condo Crisis”? |
Record Keeping: Document Retention Recommendations for Building ProfessionalsIntroduction 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.... |
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... |
Vancouver’s New Building BylawBC Broker, October 2014, 14-15 Unlike any other city or municipality in British Columbia, the City of Vancouver is authorized by the Vancouver Charter to pass its own building bylaws regulating the design and construction of buildings as well as administrative provisions for permitting, inspection... |
Vancouver’s New Building BylawIntroduction Unlike any other city or municipality in British Columbia, the City of Vancouver is authorized by the Vancouver Charter to pass its own building bylaws regulating the design and construction of buildings as well as administrative provisions for permitting,... |
British Columbia Case CommentariesThe Owners, Strata Plan, BCS 1348 v. Travelers Guarantee Company of Canada, 2014 BCSC (unreported) This case provides some much needed clarity on the relationship between tort claims made by strata corporations against consultants and trades involved in construction and... |
Horse Trading: When Purchases and Sales Go WrongEquine Canada Magazine, December 2012/January 2013, 34-35 View the article. |
Rights and Duties of Charitable BeneficiariesGift Planning in Canada, July 2012, 4-5 Read the article. |
When a Horse Purchase Goes AwryThe Lawyers Weekly Buying a horse is an exciting event. Buyers dream of future horse show wins or long trail rides. For sellers, it may be the culmination of years of training and investment. However, sales can go awry and lead to litigation.... |
Practical Considerations When Making a Charitable GiftA legacy can be created by leaving all or a portion of a person’s estate to charity. Such a gift can reflect a testator’s personal values and beliefs while making a difference in the lives of others. However, in order... |
Considerations when you decide to leave part of your estate to charityVancouver Sun Leave a Legacy Special Feature |
The Insuring Agreement: Key Concepts of Fortuity, Accident, Occurrence, and Property DamageCLEBC Insurance Law Conference |
Builders Lien Update: Change in Security for Costs Practice! |
Negotiating Risk: The Use and Enforceability of Waivers in the Horse IndustryThe Canadian Horse Journal p. 20-23 |
Alter Ego Trusts as a Means to Avoid Challenges to a Will |
