A reminder to insurers that Section 4 of the Insurance Regulation, pursuant to the new B.C. Insurance Act, is now in place as of July 1, 2012. This section requires that insurers notify an insured of any applicable statutory limitation periods that may apply in respect of the insurance contract. The notice must include several key elements: 1. It must be in writing; 2. It must advise of the applicable limitation period (pursuant to either s. 23. 76 or 104 of the Act); 3. It must contain a statement that “the limitation period is set out in the Insurance Act”. Unfortunately, the wording of the timing section for notification in the original Regulations was unclear. However, as of December 19…
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A covenant to insure most often arises in a landlord-tenant situation but does have broader commercial application as was seen in the recent British Columbia Court of Appeal decision of Kruger Products Ltd. v. First Choice Logistics Inc., 2013 BCCA 3. There, the insurers of a paper warehouse brought a subrogated action to recover more than $16,000,000 paid out following a fire at the warehouse which destroyed not only the building but over 3,700 tonnes of unprocessed paper, and 236,000 cases of finished paper products. The fire began when paper debris came into contact with the exhaust system of a forklift being operated in the warehouse. The stored paper products were owned by Kruger Products, formerly known as Scott Paper…
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On December 19, 2012, the British Columbia Legislature brought into force various housekeeping revisions to the Insurance Act Regulation. The revised regulation corrects internal references to various sections of the Insurance Act. The revised regulations also include a new class of insurance exempted from the applicability of the statutory conditions. Under the revised regulation the statutory conditions will not be applicable to “crop and farm income insurance”, which is defined as insurance issued under the Insurance for Crops Act or Farm Income Insurance Act. Most importantly, the revised regulation amends the wording of the notification of limitation period provisions. The first regulation issued was somewhat unclear as to when insurers were to give written notice to claimants of the applicable…
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Construction is a risky business. Having the right insurance in place is therefore essential for everybody engaged in the process. It is also critical that you understand the basic operation of your insurance policies and have some understanding of the legislation that governs insurance. Insurance in Canada is governed by provincial insurance acts that lay out ground rules for insurers. In B.C., we have a new Insurance Act that you should be aware of. The new act is the result of a 2003 decision of the Supreme Court of Canada in which the Court described B.C.’s Insurance Act as an “outmoded” statute that leads to “unproductive, wasteful litigation about technicalities”. The court urged the B.C. Legislature to rectify this situation…
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“A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an accident in which another person is injured. Is the host liable to the person injured?” The above question posed by the Supreme Court of Canada is particularly apt this time of year for, as the holiday season approaches, so too does the (seemingly) endless rounds of cocktail parties, open houses and general merriment. The leading Canadian case on social host liability is that of Childs v. Desormeaux, 2006 SCC 18. The Childs case arose out of a “BYOB” New Year’s Eve party where the defendant hosts only provided a small amount of champagne upon which to toast in the New Year. One of the…
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As previously reported in our blog post titled New British Columbia Limitation Act, the legislature has undertaken an overhaul of limitation periods in British Columbia with the repeal and replacement of a new Limitation Act. This new Limitation Act is now scheduled to come into effect on June 1, 2013. The new Limitation Act is a departure from the former Act which imposed limitation periods of 2, 6, or 10 years, depending on the type of claim (generally tort claims came within the 2 year limitation period). The former Act also provided generally (with some specific exceptions) that the limitation period began running from the time the cause of action arose and contained a 30 year “ultimate” limitation period. The…
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Everybody has one, a favorite much read and beloved book. Whether it is The Great Gatsby, Wuthering Heights, or Harry Potter and the Philosopher’s Stone, it sits, dog eared and with cracked spine, on a bookshelf waiting to be pulled down and re-read at regular intervals. I have a few such tattered paperbacks at home, but at work I have Kuypers v. The Township of Langley, 1992 CanLII 693 (BCSC). When I simply cannot read another dull prolixly decision, or when I begin to think that most lawyers and judges had their sense of humour surgically removed while in law school, I pull this case off the credenza in my office. My copy is tattered and coffee stained but the words remain…
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In a recent decision the British Columbia Court of Appeal has rejected the “but for” test as being sufficient to satisfy the causal element required by the phrase “liability arising out of the operations of the named insured”. In Vernon Vipers Hockey Club, Dr. J. Duncan Wray Inc. and American Home Assurance Co. (Commerce and Industry Insurance Co. of Canada) v. Canadian Recreation Excellence (Vernon) Corporation (“CRE”) and the Regional District of North Okanagan (“NORD”), 2012 BCCA 291, the Plaintiff, Kinnear, attended a multi-plex facility in Vernon to watch a hockey game hosted by the Vernon Vipers Hockey Club (the “Club”). NORD owned the facility and CRE was the operator. Mr. Kinnear was injured when he left the facility to…
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It is understandably very important to insurers to ensure that claims progress and files are closed. Most insurers have files in which the plaintiffs and their counsel have simply stopped moving the file forward. In British Columbia, it has always been difficult to succeed in an application for want of prosecution; unfortunately, as a result of two recent decisions, it has become even more difficult. An Application for Want of Prosecution The British Columbia Supreme Court Rules allow for an action to be dismissed for want of prosecution. Rule 22-7(7) provides: If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed. The cases…
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On May 17, 2012 Bill 34, which repeals and replaces the Limitation Act with a new act, received Royal Assent. In speaking about Bill 34 Justice Minister and Attorney General Shirley Bond stated: “Civil actions deal with everything from commercial disputes to personal injury claims. We have taken considerable time and care with these changes because it was important to strike a balance that gives both plaintiffs sufficient time to file a legal claim and defendants certainty about when their liability ends. This new act will make the limitation rules clearer and easier to apply.” The new Limitation Act is a departure from the former Act which imposed limitation periods of 2, 6 or 10 years depending on the type…
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