Robert W. Becker

Contractors sought declarations compelling three commercial general liability insurers to defend them in an underlying construction action concerning alleged defects in septic systems installed in a residential subdivision.

The court considered whether the pleadings disclosed “property damage” caused by an “occurrence” under the policies and whether exclusions, including the “your work” and “professional services” exclusions, applied.

Although the pleadings raised a mere possibility of property damage caused by an occurrence, the court found that the “your work” exclusion applied and that the subcontractor exception was not established on the pleadings because the alleged supplier of filter sand was merely a supplier and not a subcontractor.

As a result, the insurers had no duty to defend.

The motion for a declaration compelling a defence was dismissed.

The appellant appealed a Small Claims Court decision dismissing her claim for defective workmanship and property damage against the respondent masonry company.

The trial judge had treated the respondent's final invoice as a written quotation that defined the oral contract, qualified the respondent's principal as an expert witness, and dismissed property damage claims as trivial.

The Divisional Court found these to be palpable and overriding errors.

The Court also applied the Consumer Protection Act, 2002, which had not been pleaded at trial, finding the respondent failed to provide a required written agreement.

The appeal was allowed, the trial judgment was set aside, and judgment was entered for the appellant for $10,000 plus interest and costs.

Following an appeal, the parties provided joint submissions regarding the costs of the trial.

The Court of Appeal ordered that the trial judgment be amended on consent to award the plaintiff fixed costs in the amount of $39,196.08.

The respondent was dismissed without cause from his managerial position after 13 months of service.

The trial judge awarded a base notice period of six months and added two three-month Wallace extensions for bad faith in the manner of dismissal, along with damages for mitigation expenses and loss of an Employee Stock Purchase Plan.

On appeal, the Court of Appeal upheld the six-month base notice period but set aside the Wallace extensions, finding no evidence of bad faith or high-handed conduct by the employer.

The court also adjusted the damages for mitigation expenses and the stock purchase plan.

The appellant insurer appealed an order appointing an appraiser under s. 128(5) of the Insurance Act, arguing the policy was void due to a material change in risk under Statutory Condition 4.

The Court of Appeal dismissed the appeal, finding that liability remained a live issue because the insurer chose not to cross-examine the insured on her affidavit asserting a valid policy.

The court noted that even if a breach occurred, relief from forfeiture might be available, making the appraisal process appropriate for resolving valuation issues.