CRISTIN SCHMITZ OTTAWA
The Supreme Court has harmonized disparate appellate
authority on the duty to defend in
commercial general liability
(CGL) insurance policies in a
judgment which opens the possibility of insurance payouts to
thousands of “leaky condo” dwellers in British Columbia.
Counsel say last month’s 9-0
judgment also means that general
contractors in B.C. can expect to
have the flood of construction
defect suits against them defended
by lawyers paid for by their CGL
insurers — as their builder counterparts in Ontario and Saskatchewan already do under the same
CGL policies.
On Sept. 23 the top court
allowed the appeal of Richmond,
B.C. general contractor Progressive
Homes Ltd. from decisions of the
B.C. courts holding that its insurer,
Lombard General Insurance Co. of
Canada, was not obliged to defend
the builder against breach of con-
tract and negligence claims
brought by the B.C. Housing Man-
agement Commission.
CONTENTS
NEWS
TOP JUDGE proposes free court-
based mediation, but AG says ‘we
don’t have the money’ .................1
BOARD REJECTS growth plan
conformity amendment .............. 11
THE DOCTRINE of avulsion:
accretion’s poor cousin .............. 13
Former judge and B.C. Attorney
General and Wally Oppal will head a
public inquiry into the police investiga-
tion around Vancouver’s missing
women case.
In July, the Supreme Court of
Canada upheld Robert William
Pickton’s conviction on six counts of
second-degree murder of women
who disappeared from Vancouver’s
drug- and prostitution-ridden
Downtown Eastside neighbourhood.
Twenty other counts were stayed
in the wake of the top court’s ruling.
The inquiry will focus on the 1997-
2002 period in which police have
admitted their inaction likely cost 11
women their lives.
“How is it that a predator, a crimin-
al, was able to continue and lives
were lost? Were there mistakes
made?” Attorney General Mike de
Jong said in announcing Oppal’s
appointment.
“We want to find out what went
wrong,” said Oppal, who also chaired
a policing commission almost two
decades ago. “What’s taken place
here is horrible crimes…the victims
being vulnerable women.”
His report is due Dec. 31, 2011.
POLITICS MUST not drive
nominations: judiciary experts......1
BEYOND THE initial term: Lease
renewals and extensions............ 14
Female federal judges
THE SCC has ruled on an insurers’
duty to defend..............................2
A B.C. lawyer will argue that his
profession discriminates on the
basis of mental health.................. 3
Environmental Law
DO WE need a single
environmental assessment
process? .................................. 16
INSURANCE FEES are set to go
up for Ontario lawyers.................. 3
THE GOVERNMENT must combat
SLAPPs, says panel.................... 17
AFTER HOCKEY career Olympian
scores legal career....................... 4
SYNCRUDE DUCK trial judgment
begs for appellate review........... 17
SOME WITNESS identities will be
shielded at British Columbia’s
polygamy inquiry .......................... 8
BUSINESS & CAREERS
THE FUTURE of Canadian law
schools ....................................... 23
OPINION
LIKE MOTHER, like daughter ..... 25
OMAR HA-REDEYE.................... 5
GET LONG-TERM loyalty from your
associates .................................. 28
KAREN SELICK .......................... 7
FOCUS
DEPARTMENTS
Real Property
HOT BUTTON issues for
residential tenancies.................. 9
DELAYED COMPLIANCE
certificates scuttle real estate
deals .......................................... 10
Announcements. . . . . . . . . . . 28
Careers . . . . . . . . . . . . . . . . . 24
Classified Ads . . . . . . . . . . . . 21
Lawddities. . . . . . . . . . . . . . . 13
Legal Briefs. . . . . . . . . . . . . . .2
Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 19
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRANT LATHAM, B.A.SC. B. SC. (CHEM. ENG.), LL.B.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
botched construction led to sub-
stantial water damage, including
rot, mold, infestation and other
building deterioration.
Progressive Homes’ counsel,
Gordon Hilliker of Belcarra, B.C.,
called the Supreme Court’s decision “hugely important” to thousands of leaky condo dwellers
who — absent coverage under
builders’ CGL insurance—would
have no financial recourse for
widespread defects in buildings
constructed during the 1980s,
1990s and even in the past decade.
“I have no doubt that it will lead
to millions of dollars [being paid
out] here in B.C. on the leaky
condo issue,” predicts Hilliker,
whose co-counsel was Neo Tuytel.
Justice Marshall Rothstein’s
ruling lays to rest conflicting
appellate case law across Canada
on CGL “occurrence poli-
cies” — which insure against
“property damage” caused by
“occurrences” or “accidents.”
The Supreme Court held that
faulty workmanship can amount
to an “accident.” The judges also
held that insured “property dam-
age” can encompass damage to
any property (not just third-party
property). Under the wording of
the policies before the court, this
covers damage to the buildings
constructed by the insured general
contractor, including damage from
allegedly defective sub-contractor
work on the buildings.
Reversing last year’s 2-1 decision from the B.C. Court of Appeal,
Justice Rothstein held that the
plain language of the CGL policies
at Bar does create defence coverage
for claims against the insured that
allege construction deficiencies in
its subcontractors’ work.
The CGL policies construed by
the Supreme Court required Lombard to defend and indemnify Progressive when the insured is legally
obligated to pay damages because
of “property damage” caused by an
occurrence or “accident” (subject
to specific exclusions).
Based on what the court viewed
as the policies’ clear wording, the
top court interpreted the insurance
coverage more broadly than did
the B.C. courts below and in line
with the more expansive approach
taken in similar cases by the
Ontario and Saskatchewan Courts
of Appeal.
Hilliker told The Lawyers
Weekly the decision establishes
that “from the perspective of [an
insured] who does work, or
builds a product, that damage
resulting from faulty workman-
ship in that work or product,
may be covered under your lia-
bility insurance policy.”
The ruling will apply to CGL
policies issued to many types of
business, added Hilliker, author
of Liability Insurance Law in
Canada.
A Lawyers Weekly count discloses
that 32 per cent of federal judges in
Canada are women (354 out of
1,099). At the high end, 39 per cent
of judges in Alberta are female,
including eight of 17 Court of Appeal
judges. Female judges comprise 37
per cent of B.C.’s federal judiciary,
including half of the Court of Appeal.
Women compose 37 per cent of the
Manitoba Bench, including a near-
majority in Family Court and nearly
half of the Court of Appeal. The high-
est proportion of women judges is in
the Northwest Territories (40 per cent
or 2 of 5 judges). One third of federal
judges in Ontario are female. They
make up a majority on the Family
Court and less than half of the Court
of Appeal. In Quebec, 30 per cent of
the federal Bench is female. Fewer
than 30 per cent of judges in P.E.I.,
Nunavut, Saskatchewan, Nova Scotia
and New Brunswick are female.
Together, the Ottawa-based courts
(Supreme, Federal and Tax Courts)
have 30 per cent women members.
At press time, no Yukon judges were
women.
Safety in numbers
Correction
TRADE MARK AGENTS LEONARD GROVE (1930-2006)
MARTA TANDORI CHENG
2 BLOOR ST. EAST, SUITE 1800
TORONTO, ONTARIO M4W 3J5
TELEPHONE: (416) 961-5000
FAX: (416) 961-5081
E-MAIL: riches@patents-toronto.com
ESTABLISHED 1887
In the Sept, 17 issue of The
Lawyers Weekly, our article on
changes to the Legal Profession
Act incorrectly stated that Law
Society of B.C. bencher Gregory
Petrisor said changes seemed to
have been promoted by the fact
that the public interest and
members’ interest were mutually
exclusive. What Petrisor said
was that those changes seemed
to be motivated by a perception
that the public interest and
members’ interests are necessar-
ily mutually exclusive — which
they are not.
Most Canadians are satisfied with
their personal safety from crime,
Statistics Canada reports.
Results from the agency’s 2009
survey on “victimization” show that
93 per cent of people said they were
either satisfied, or very satisfied with
their personal safety. Ninety per cent
of Canadians reported that they felt
safe walking alone in their neighbour-
hood at night, while 83 per cent said
they were not at all worried when at
home alone at night.
