Karen L. Weslowski | Miller Thomson LLP


( Disponible en anglais seulement ) BC Supreme Court determines whether a third-party claim can be commenced by way of a separate notice of civil claim Introduction 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... Plus
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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) The Supreme Court of Canada addresses promissory estoppel in the insurance context Introduction 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... Plus
( Disponible en anglais seulement ) Case Commentary: Nelson (City) v. Marchi, 2021 SCC 41 – The Supreme Court of Canada clarifies the distinction between core and non-core policy decisions Introduction 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,... Plus
( Disponible en anglais seulement ) Henderson v. Northbridge General Insurance Corporation, 2021 BCSC 1841: The duty to defend claims alleging intentional acts Introduction 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. ... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Public engagement for infrastructure projects Canadian 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Leave to appeal duty to defend issues denied by Supreme Court of Canada Recently, 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.... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Case commentary: Issuance of building permit for construction of residential/commercial strata “unreasonable” without involvement of architect Introduction 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... Plus
( Disponible en anglais seulement ) Pennsylvania court decision discusses physical damage aspect of COVID-19 Introduction 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,... Plus
( Disponible en anglais seulement ) Subrogating against government authorities for COVID-19 losses Introduction 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... Plus
( Disponible en anglais seulement ) Causation and concurrent causes of business interruption involving COVID-19 Introduction 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... Plus
( Disponible en anglais seulement ) All-risks property insurance: Meaning of physical damage A 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... Plus
( Disponible en anglais seulement ) Steps Canadian regulators can (and should) take to minimize the impacts of COVID-19 on insurers Introduction 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Proposed National Class Action filed seeking payouts for business interruption insurance Introduction 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... Plus
( Disponible en anglais seulement ) Coverage under business interruption and general liability policies for Coronavirus related claims Introduction 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... Plus
( Disponible en anglais seulement ) Case Commentary: Provost v. Dueck Downtown Chevrolet Buick GMC Limited, 2020 BCCA 86 A 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... Plus
( Disponible en anglais seulement ) Validity of builder lien claims JVD 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... Plus
( Disponible en anglais seulement ) Joint & Several Liability for Engineers Canadian 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... Plus
( Disponible en anglais seulement ) Negotiating terms beyond standard forms A 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... Plus
( Disponible en anglais seulement ) Bad faith and punitive damages: Stewart v. Lloyd’s Underwriters The 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Insurance Coverage for Natural Disasters Canada'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,... Plus
( Disponible en anglais seulement ) Case Commentary: Himark Homes Ltd. v Janas, 2017 BCSC 1719 and Subrogated Warranty Claims Against Building Consultants Introduction 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... Plus
( Disponible en anglais seulement ) Intentional Acts, Artful Pleading and the Duty to Defend in British Columbia The 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... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Equine Insurance: Understanding the Fine Print of your Policy Canada'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. Plus
( Disponible en anglais seulement ) 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 581 Most 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... Plus
( Disponible en anglais seulement ) Karen Weslowski comments on importance of clear communication and contracts Horse 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... Plus
( Disponible en anglais seulement ) Gone but Not Forgotten – Water Ingress Claims in British Columbia Will rainscreens and building envelope professionals prevent another “Leaky Condo Crisis”? Plus
( Disponible en anglais seulement ) The Risks and Rewards of Buying at an Auction Equine 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... Plus
( Disponible en anglais seulement ) 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.... Plus
( Disponible en anglais seulement ) 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... Plus
( Disponible en anglais seulement ) Defamation: When Does Gossip Cross the Line? Canadian Horse Journal Plus
( Disponible en anglais seulement ) Horse Boarding: The Value of Written Boarding Agreements Equine Consumers' Guide, 2015 Plus
( Disponible en anglais seulement ) Vancouver’s New Building Bylaw BC 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... Plus
( Disponible en anglais seulement ) British Columbia Case Commentaries The 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... Plus
( Disponible en anglais seulement ) Vancouver’s New Building Bylaw Introduction 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,... Plus
( Disponible en anglais seulement ) Horse Trading: When Purchases and Sales Go Wrong Equine Canada Magazine, December 2012/January 2013, 34-35 View the article. Plus
( Disponible en anglais seulement ) Rights and Duties of Charitable Beneficiaries Gift Planning in Canada, July 2012, 4-5 Read the article. Plus
( Disponible en anglais seulement ) Practical Considerations When Making a Charitable Gift A 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... Plus
( Disponible en anglais seulement ) When a Horse Purchase Goes Awry The 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.... Plus
Items à considérer lorsque vous donnez une partie de vos avoirs à un organisme de bienfaisance. Plus
( Disponible en anglais seulement ) Horse Trading: An Update on Sellers’ Obligations Equine Consumers' Guide Plus
( Disponible en anglais seulement ) The Insuring Agreement: Key Concepts of Fortuity, Accident, Occurrence, and Property Damage CLEBC Insurance Law Conference Plus
( Disponible en anglais seulement ) Equine Insurance – Are You Covered? Equine Consumers' Guide Plus
( Disponible en anglais seulement ) The Enforceability of Parental Waivers Sports Law Communiqué Plus
( Disponible en anglais seulement ) Builders Lien Update: Change in Security for Costs Practice! Plus
( Disponible en anglais seulement ) Managing Risk: A Guide for Coaches and Trainers The Canadian Horse Journal p. 24-29 Plus
( Disponible en anglais seulement ) Negotiating Risk: The Use and Enforceability of Waivers in the Horse Industry The Canadian Horse Journal p. 20-23 Plus
( Disponible en anglais seulement ) Border Crossings: Importing & Exporting Horses Horse Community Guide Plus
( Disponible en anglais seulement ) Alter Ego Trusts as a Means to Avoid Challenges to a Will Plus

BC Supreme Court determines whether a third-party claim can be commenced by way of a separate notice of civil claim

Ontario Court of Appeal emphasizes the importance of succinctness in insurance contracts

Proving professional negligence claims: What expert evidence is required and when?

The Supreme Court of Canada addresses promissory estoppel in the insurance context

Case Commentary: Nelson (City) v. Marchi, 2021 SCC 41 – The Supreme Court of Canada clarifies the distinction between core and non-core policy decisions

Henderson v. Northbridge General Insurance Corporation, 2021 BCSC 1841: The duty to defend claims alleging intentional acts

Loss of use as « physical damage »? Case summary of the Ontario Court of Appeal decision in MDS Inc. v. Factory Mutual Insurance Company

Public engagement for infrastructure projects

Amendments to the Architectural Institute of British Columbia Code of Ethics and Professional Conduct: The introduction of the requirement to self-report

Leave to appeal duty to defend issues denied by Supreme Court of Canada

Is a partial restriction of business sufficient to trigger the “inability to use” clause in business interruption claims?

Case study: Can a client’s breach of contract give rise to a professional regulatory complaint against a design consultant?

Case commentary: Issuance of building permit for construction of residential/commercial strata “unreasonable” without involvement of architect

Pennsylvania court decision discusses physical damage aspect of COVID-19

Subrogating against government authorities for COVID-19 losses

Causation and concurrent causes of business interruption involving COVID-19

All-risks property insurance: Meaning of physical damage

Steps Canadian regulators can (and should) take to minimize the impacts of COVID-19 on insurers

All perils policies: Is COVID-19 an insured peril?

The loss of perishable products: Does this constitute physical damage sufficient to trigger coverage?

Proposed National Class Action filed seeking payouts for business interruption insurance

Coverage under business interruption and general liability policies for Coronavirus related claims

Case Commentary: Provost v. Dueck Downtown Chevrolet Buick GMC Limited, 2020 BCCA 86

Validity of builder lien claims

Joint & Several Liability for Engineers

Negotiating terms beyond standard forms

Bad faith and punitive damages: Stewart v. Lloyd’s Underwriters

Bad faith & punitive damages update – case commentary – Stewart v. Lloyd’s Underwriters

Material Misrepresentation and Material Change in Risk: BC Case Commentaries

Construction on First Nations Land: Determining the Applicable Building Code

Clarifying the “Trilogy” and the Covenant to Insure: Royal Host GP Inc. v. 1842259 Ontario Ltd.

Insurance Coverage for Natural Disasters

Case Commentary: Himark Homes Ltd. v Janas, 2017 BCSC 1719 and Subrogated Warranty Claims Against Building Consultants

Intentional Acts, Artful Pleading and the Duty to Defend in British Columbia

Mediation in British Columbia: Does Mandatory Mediation Mean Mandatory Attendance for Lloyd’s Underwriters?

Equine Insurance: Understanding the Fine Print of your Policy

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 581

Karen Weslowski comments on importance of clear communication and contracts

Gone but Not Forgotten – Water Ingress Claims in British Columbia

The Risks and Rewards of Buying at an Auction

Record Keeping: Document Retention Recommendations for Building Professionals

Limitation of Liability Clauses: Are They Enforceable and Effective?

Defamation: When Does Gossip Cross the Line?

Horse Boarding: The Value of Written Boarding Agreements

Vancouver’s New Building Bylaw

British Columbia Case Commentaries

Vancouver’s New Building Bylaw

Horse Trading: When Purchases and Sales Go Wrong

Rights and Duties of Charitable Beneficiaries

Practical Considerations When Making a Charitable Gift

When a Horse Purchase Goes Awry

Items à considérer lorsque vous donnez une partie de vos avoirs à un organisme de bienfaisance.

Horse Trading: An Update on Sellers’ Obligations

The Insuring Agreement: Key Concepts of Fortuity, Accident, Occurrence, and Property Damage

Equine Insurance – Are You Covered?

The Enforceability of Parental Waivers

Builders Lien Update: Change in Security for Costs Practice!

Managing Risk: A Guide for Coaches and Trainers

Negotiating Risk: The Use and Enforceability of Waivers in the Horse Industry

Border Crossings: Importing & Exporting Horses

Alter Ego Trusts as a Means to Avoid Challenges to a Will