Publications

On August 2, 2012, the Court of Appeal rendered a major decision on professional liability insurance . As a result of this ruling, insureds and insurers alike should review the wording of such policies, especially gross fault exclusions and the definition of "professional activities". The ruling is also noteworthy for its treatment of apportionment of liability between the professional and the client.

This publication was co-authored by Luc Thibaudeau, former partner of Lavery and now judge in the Civil Division of the Court of Québec, District of Longueuil. Lavery follows the evolution of consumer law closely. Its specialized expertise in the fields of retailing and class actions has been confirmed many times by stakeholders in the milieu. Lavery makes it its duty to keep the business community informed about these matters by regularly publishing bulletins that deal with judicial and legislative developments that are likely to leave their mark and influence or even transform practices in the milieu. The present bulletin analyzes a recent decision of the highest court in the country that will not fail to make waves in an area that affects all of us, that is advertising. On February 28, 2012, the Supreme Court issued its judgment in the case of Richard v. Time Inc. et al. and, reversing the Court of Appeal’s decision, partially reinstated the judgment of Justice Carol Cohen of the Superior Court who concluded that a commercial representation was false and misleading. According to the highest court in the country, the Court of Appeal erred in ruling that the average consumer has “an average level of intelligence, scepticism and curiosity”.

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.

One more lengthy battle in a legal saga has just come to an end. Indeed, on June 4, 2008, the Court, comprised of Quebec’s Chief Justice, Michel Robert, and Justices Jacques Chamberland and Louis Rochette, rendered a unanimous judgment.To set the stage, consider a salmonella outbreak in Abitibi, some premature deaths, dozens of persons poisoned, three producing farms... Seventy-two (72) days of hearings in Superior Court and four (4) days in the Court of Appeal were required, a rarity in both venues. Even more unusual, this major case led to a legislative amendment allowing the judge designated to deal with it in Superior Court and appointed to the Court of Appeal during the trial to continue and complete it.This key decision, highlighting the fundamental principles of product liability, applies the recent Domtar judgment rendered by the Supreme Court of Canada in November 2007 and innovatively rules that an agricultural producer must be likened more to a manufacturer than to a professional seller within the meaning of the Civil Code and is subject to the same obligations as a manufacturer.Furthermore, we spend some time on the system of production and distribution of eggs destined for consumption in Quebec. Also, we have analyzed the points raised in the court of first instance as well as in the Court of AppealIn conclusion, this judgment breaks new ground by clearly applying the same very strong presumptions to which manufacturers are subject (articles 1726 et seq. C.C.Q.) to “sophisticated” agricultural producers. In addition, we note that the determination to pursue a claim for punitive damages even after the court’s comments leaving little room for doubt regarding the chances of having them awarded can result in an order to pay an opponent’s legal costs, a rarity given past Court of Appeal decisions in this respect.In the event one of the parties in question files an application for leave to appeal, it remains to be seen if the Supreme Court of Canada will agree to hear the argument - which came first, the chicken or the egg ...

On May 12, 2006, the Court of Appeal rendered a decision in a case involving the concept of intentional fault. This judgement once again further complicates the idea of an intentional fault committed by an insured.

Beware of Allegations of Fraud in Insurance: Words Fly Away, Writing Remains!

Nullity of an Insurance Contract and Criminal History: Clear and Specific Questions Must Be Asked

Exclusion Raised Belatedly Without a Problem!

Not Telling the Truth is Not Necessarily Lying (Art. 2472 C.C.Q.)

Statutory Examinations: Their Use Before the Courts is Not Automatic

Selling your house is an insured personal activity