West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110
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 under a commercial general liability policy. The policy included coverage for property damage liability but also contained a clause limiting coverage for property damage liability arising from pollutants. Between 2002 and 2012, Economical Mutual Insurance Company insured West Van under a commercial general liability policy with similar provisions as the Intact insurance policy.
In 2014, the owners of the land situated adjacent to West Van filed a claim against West Van alleging that West Van had allowed dry-cleaning chemical products to be discharged or deposited into the soils and groundwater of their lands, thereby damaging and contaminating their lands. The action was pleaded in strict liability, negligence, nuisance, and a statutory cause of action under the Environmental Management Act.
Both insurers refused to defend West Van on the basis that the underlying action was outside the scope of their policy coverage pursuant to the pollution exclusion clauses. West Van filed a claim seeking declarations that the insurers owed them a duty to defend.
The trial judge held that the insurers had a duty to defend, even with the pollution exclusion clauses, and awarded costs to West Van on a full indemnity basis.
Court of Appeal
The British Columbia Court of Appeal overturned the trial decision. The Court of Appeal confirmed the primacy of the pleadings when determining whether an insurer owes a duty to defend. The Court concluded that the exclusion clauses were not ambiguous and excluded coverage for the claims in the underlying action in relation to the migration of pollutants and acts by the insureds occurring during the respective policy periods.
The Court further concluded that insurance policies are not special contracts justifying special costs for successful litigants seeking coverage where there is no reprehensible conduct on the part of the insurer deserving of judicial censure.
Supreme Court of Canada
West Van filed an appeal to the Supreme Court of Canada. The appeal was denied as follows:
“The application for leave to appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Numbers CA45020 and CA45036, 2019 BCCA 110, dated April 5, 2019, is dismissed with costs.”
The Court of Appeal’s decision remains the law in British Columbia in that special costs are not available to the successful insured in duty to defend cases absent reprehensible conduct on the part of the insurers. Further, the decision continues to highlight the importance of wording the exclusionary clauses in a clear and unambiguous manner.
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