Publications

On August 25th, the Court of Appeal, for the reasons of Justice Nicholas Kasirer, rendered a significant decision with regard to the duty of care required from ski instructors and the assessment of damages awarded to a victim who developed a serious neurological disorder resulting from a ski accident. In their capacity as tutors of their child (referred to as “X” in the judgment), as well as in their personal capacity, Plaintiffs claimed damages for approximately $3.8M against Les Stations de la vallée de Saint-Sauveur Inc. and Mont Saint-Sauveur International (hereinafter “MSSI”) pursuant to the ski accident that their child suffered. 

On June 2, 2010, the Quebec Court of Appeal confirmed the Superior Court’s decision, which dismissed the insured’s action in warranty against his liability insurer under his home owner’s policy. The insured alleged that the purchasers’ claim for reducing the purchase price due to a hidden defect was covered under the liability insurance policy.

In February and March 2010, the Superior Court rendered two interesting decisions in cases involving fires. We will review these decisions, which have a number of features in common, including the considerable sums of money at stake, the lengthy time period between the loss and the trial, and the number of persons involved in the conduct of each case.

In August 2009, the Court of Appeal issued a judgment in which it ruled on the following interesting practical issues relating to liability insurance: What is the appropriate procedural vehicle for a liability insurer to exercise recourse against another insurer in situations where there is overlapping insurance? Does the exception respecting members of the household of the insured (Article 2474 C.C.Q.) apply in respect of the liability insurer of the person who is liable for the damage and is a “member of the household of the insured”? What intervention should be given to the expression “living under the same roof as the insured”?

On May 14, 2009, the Court of Appeal put an end to a controversy in the case law on the interpretation by Article 216 C.C.P. concerning the procedural means available to the insurer to protect its subrogation rights. The Court considered the following question: “Can an insurer, who is being sued by its insured for refusing to pay the indemnity, force the intervention of a third party who is potentially liable for the loss?” After thoroughly reviewing the controversial case law on the issue, the Court answered the question in the affirmative, and allowed the insurer to implead the potentially liable third party in the litigation between the insurer and its insured.

On April 20, 2009, the Court of Appeal issued its judgment in three related cases concerning a defect in a fireplace that caused a fire resulting in the partial loss of the building owned by Alpha’s insureds. Alpha sued the immediate seller to its insureds as well as the prior owners under the rules governing the warranty against latent defects. The three Defendants maintained that Alpha could not claim more than the cost of repairing the fireplace. The Court of Appeal held that the object of the sale was the entire house and that the fireplace could not be dissociated from it; the fire having caused the loss of use of the home of the insureds, the warranty extended to the costs of repairing the building even though the insureds were in good faith. This decision puts an end to the controversy concerning the scope of the damages that can be claimed following the loss of a building resulting from a latent defect affecting one of its components while the seller is in good faith. It is now clear that when the subject of the sale is a building, the measure of the damages is the loss of use of the building and not only the defective component. 

On May 22, 2008, the Supreme Court of Canada rendered its decision in a case involving the notion of reasonable foreseeability in negligence actions. This judgment, written by the Chief Justice, confirms that tort law must compensate harm done on the basis of reasonable foresight, and must not be considered as insurance. While replacing a water bottle in his home water cooler, the Appellant, Waddah Mustapha, found a dead fly and part of another dead fly in the unopened water bottle. Mr. Mustapha sued Culligan, the supplier and manufacturer of the water bottle, for compensation for his psychiatric injuries. Mr. Mustapha sued Culligan in both contract and tort, which is not permitted in Quebec but is permitted in Ontario and other common law jurisdictions. The Supreme Court of Canada's analysis was based completely on tort law principles.

On August 16, 2007, the Court of Appeal issued a judgment pertaining to the absence of an initial discloser of risk to the new insurer in the context of the transfer of an insurance portfolio by a broker. An insurer who accepts the transfer of a policy without ascertaining its current exposure to risk, is deemed to have waived his right to this information.

Directors' Liability, Indemnification and Insurance Coverage

Fire: The Lessee at Fault Has Full Liability!