Insurance

Bullies And Their Parents Not Covered For Lawsuits Under Home Insurance Policy

In Unifund Assurance Company v. D.E., the Ontario Court of Appeal ruled that the parents of a school-age bully are not covered for their negligent supervision under their home insurance policy. We recently reported on D.E. v. Unifund Assurance Company, a trial level decision where the Court declared that an insurer, Unifund, had to defend and indemnify parents of an alleged school-age bully. The decision was overturned and the Court of Appeal's reasoning is precedent-setting and instructive to both insurers and policy holders. Read More
Commercial LitigationProduct Liability

Pure Economic Loss Claim Applies To Patent Defects That Are Not Imminently Dangerous

The Manitoba Court of Appeal has held that a defendants' motion for summary judgment should be dismissed, rejecting their argument that claims for pure economic loss for patent defects that are not imminently dangerous should not proceed to trial. This is yet another in a long line of cases interpreting the seminal Supreme Court of Canada decision in Winnipeg Condominium Corp. No. 36 v. Bird Construction Co., where the Court held a defendant liable for a dangerous defect even though there had been no damage to persons or property (i.e. a pure economic loss claim). Read More
Commercial LitigationProduct Liability

A Cautionary Tale: The Party That Imposes Specifications For Methods And Materials Is Responsible For Its Defects

The Ontario Court of Appeal has held that where a plaintiff has imposed the methods and materials that the defendant must use to complete a project, the defendant is absolved of responsibility if the project proves to be defective, as the risk has been allocated to the plaintiff. Although this decision is not a typical products case, the considerations are similar to those that a court reviews in a case involving the implied warranty of fitness under the provincial Sale of Goods acts. Read More
Commercial LitigationInsurance

Carefully Consider That Additional Insured Endorsement – It May Still Protect You!

The Ontario Superior Court of Justice recently held that an additional insured was covered by a policy, where there was no direct claim against the named insured, even though the coverage was limited to claims arising from the negligence of the named insured. The most common additional insured endorsements are generally speaking very restrictive in their application. As this case demonstrates, such an endorsement may still provide protection to an additional insured even where the plaintiff has no direct claim against the named insured. Read More
Commercial Litigation

Product Liability Risks And Market Globalization

Globalization of industry has resulted in materials and components often being supplied from multiple markets across the world. When something goes wrong, and claims arise, it can prove difficult to enforce your contractual rights to indemnity. What could go wrong? Unfortunately, lots. If your client, as the manufacturer or local distributor, has not taken effective steps to ensure that its product is manufactured properly, your client could find itself facing substantial fines from regulatory authorities along with class actions that can put a serious dent in your client's bottom line. Read More
Insurance

Insurance Clauses: Priceless Or Worthless?

Contracts provide an ideal opportunity for the efficient allocation of risk, and insurance clauses can cover much of this ground, often with no concessions from your client. This opportunity can be lost when the clause does not really fit the particular transaction, or where the coverage is not available when later required. Even a carefully drafted clause may be worthless, if the parties do not turn their minds to how it will apply to the specific circumstances and avoid some common traps, as discussed below. For a more thorough discussion, please sign up for our upcoming CBA webinar "Negotiating and Drafting Effective Risk Allocation: Integrated Liability and Insurance Clauses" (Fall 2015). Read More
Commercial LitigationProduct Liability

Manufacturer Fails To Set Aside Jury Decision Imposing Liability For Failure To Warn

A recent decision by the Ontario Court of Appeal, illustrates the difficulties faced by companies that try to challenge a jury's findings. In Stillwell v. World Kitchen Inc., the plaintiff was injured when a Dutch oven he was washing broke into four large pieces, severely lacerating his wrist. The jury awarded damages of $1.1 million less 25% for the plaintiff's contributory fault. The jury did not find that there was a manufacturing or design defect, but instead found that the defendants failed to adequately warn the plaintiffs. The warning that the product was prone to break if dropped or subjected to a hard impact was not found on the outside of the box or in the warning section of the manual, but was instead in the "Remember" section of the manual. Read More
Commercial LitigationInsurance

B.C. Supreme Court Finds Workmanship/Design Exclusion Does Not Exclude Costs To Remedy Damage Caused By Defective Workmanship

The British Columbia Supreme Court recently released its decision in Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company, which considered for the first time in Canada the LEG 2/96 clause, a workmanship/design exclusion clause. The Court also re-affirmed a number of insurance interpretation principles, particularly in relation to Course of Construction (COC) policies, including the definition of "damage to insured property" and whether a loss must be fortuitous in order to trigger coverage Read More
Commercial LitigationProduct Liability

Supplier And Manufacturer Of Copper Piping Liable For Failure To Meet City’s Watermain Sterilization Process

The Ontario Superior Court of Justice rendered a decision involving a product liability claim that considered new legislation and guidelines arising from the Walkerton water crisis. This case suggests that even if there has been no specific discussion about a product between the buyer and seller, a Court might still find that the buyer has relied on the seller regarding the suitability of a product if the seller had previously provided advice. The decision also suggests that if a supplier knows that a product will be used for an application that has to meet specific local standards, the supplier needs to make an inquiry of the manufacturer to ensure that it meets those standards. Read More