Insurance Coverage

CLC lawyers and their firms are available to work independently or, where instructed, in collaboration with one another in the increasingly complex area of policy drafting, coverage opinion work, and related coverage litigation or other dispute resolution techniques. From a legal perspective, there are three elements to a coverage risk management program:

Scope Of Services

The Coverage Group’s legal services to the insurance and risk management community include:

• drafting new or revised wordings
• coverage advice and analysis on claims
• representation on applications to determine coverage or defend actions on the policy
• selection of appropriate experts and consultants to advise on coverage related analysis (accountants, engineers, industry underwriting professionals)
• advice on new jurisprudence, statutory developments and other legal or industry developments in the area of insurance coverage

Coverage retainers must be sensitive to legal developments across Canada and in the leading U.S. jurisdictions. The Coverage Group strives to stay attuned to the latest in trends thus providing clients with the very best in coverage advice and representation.

First Party Coverage Issues

First party coverage disputes between insurer and policyholder arise in many forms including those covering:

• commercial property & business interruption/lost profits
• boiler & machinery
• priority of loss disputes between Property and B&M carriers
• fidelity bond, surety and crime
• personal lines property
• Practice (e-commerce, product recall etc.)

Third Party Coverage Issues

Third party liability coverage issues and disputes between insurer and policyholder or between two or more insurers or reinsurers include:

• duty to defend analysis
• allocation of defence costs and indemnity payments
• trigger of coverage and multiple year “long tail” analysis
• “other insurance” issues on co-primary same coverage and different primary forms (CGL/E&O/D&O)
• single year and multi-year excess/umbrella layer analysis
• bad faith handling and resolving conflict of interest scenarios
• declaratory proceedings to determine obligations to policyholders or as between insurers on the same risk
• reinsurance treaty disputes on aggregate and individual loss payments

The independent affiliated firms of Canadian Litigation Counsel are uniquely positioned to provide Canada-wide legal services on an individual or joint retainer basis for all or any elements of a coverage risk management program, whether from a policyholder, insurer or reinsurer perspective.

Publications

• Multiple Policies, Class Actions with Continuous Losses- Oh My! Case Comment: Loblaw Companies v Royal & Sun Alliance Insurance Co. , McCague Borlack LLP, March 08, 2024
• Discovering Limitations: BCCA Offers Clarity on when the Clock Starts Running , Brownlee LLP, January 25, 2024
• Battle for Redevelopment: Restrictive Covenants vs. Municipal Planning Policies , Brownlee LLP, January 18, 2024
• Big Bucks for Bad Faith Benefits , Brownlee Law, January 16, 2024
• Can’t get no relief: Court finds no coverage for late reported broker negligence claim , Brownlee LLP, December 19, 2023
• Back-Dating a ‘Filed’ Statement of Claim: A Cautionary Tale for Limitation Periods , Brownlee LLP, December 15, 2023
• Navigating Past Injuries in Present Personal Injury Claims: Insights from Fedotkin v. Odobzinski. , Brownlee LLP, November 11, 2023
• The Road to Clarity for Municipal Immunity under the MGA: Pyke v. Calgary (City) , Brownlee LLP, November 08, 2023
• Key Insights for Insurance Adjusters: Lessons from a Property Damage Coverage Dispute , Brownlee LLP, October 10, 2023
• Sick of COVID Business Claims? What Insurers need to know , Brownlee LLP, October 10, 2023
• Navigating Costs Effectively: A Reminder that Proportionality is Primary in a Costs Award , August 15, 2023
• Triable Issues & Legal Clocks: Park Place Condo Roof Dispute Examined , Brownlee LLP, July 26, 2023
• Use of Social Media Evidence at Trial , Brownlee LLP, July 06, 2023
• BC Court puts a pin in the analysis for an Insurer’s Duty to Defend , Brownlee Law, June 28, 2023
• The Court Provides Clarity on the CPN7 Apparent Vexatious Application or Proceeding (AVAP) Procedure , Brownlee LLP, April 18, 2023
• Navigating the Murky Waters of Cyber-Attack Privilege , Brownlee LLP, April 04, 2023
• Court of King’s Bench Confirms Stigma Damages and Strict Interpretation of MGA Defences , Brownlee LLP, March 21, 2023
• Diminishing Returns - Divisional Court Confirms Motor Vehicle Accident Claims for Diminished Value are Statute Barred by Insurance Act , McCague Borlack LLP, February 10, 2023
• The Impact of Ministerial Order 27/2020: A Look at Rainard v Tan , Brownlee LLP, February 06, 2023
• An Important Decision for Property and Casualty Insurers: Abbas v Esurance , Brownlee LLP, February 06, 2023
• A Knockout for Insurers – BCSC Confirms Exclusion for Failure to Prevent Assault , Brownlee LLP, January 26, 2023
• Failure to Prove a Hazard Results in Summary Dismissal Biegel v Trotter and Morton Limited , Brownlee LLP, January 11, 2023
• Waiting for the Umpire to Make the Call Under BC’s Insurance Act , Brownlee LLP, September 21, 2022
• The Mechanics of The Duty to Defend, The Duty to Indemnify, And Additional Insureds , McCague Borlack LLP, August 31, 2022
• Get with the Times: Alberta Court of Appeal Greenlights Videoconferencing , Brownlee LLP, August 16, 2022
• Ontario Court of Appeal Upholds Decision to Deny Coverage for Tort of Intrusion upon Seclusion Claims - Case Comment: Demme v. HIROC , McCague Borlack LLP, July 28, 2022
• SEF 44 Provision is Still Favorable to Insureds , Brownlee LLP, July 05, 2022
• In PetroFrontier, Alberta Court of Appeal Advises on Protecting Solicitor-client Privilege When Pleading , April 21, 2022
• The Difficulties of Relying on the Minimum Maintenance Standards - Case Study: Lloyd v Bush , McCague Borlack LLP, March 24, 2022
• Slip and Fall: When the Plaintiff is to Blame , Brownlee Law, March 15, 2022
• You Oughta Know: Recent Court of Appeal Case Reinforces Limitation Period Trigger , Brownlee LLP, March 01, 2022
• Striking a Jury Notice – Not so fast! , McCague Borlack LLP, February 11, 2022
• No Escape from a Policy Breach Even Years Later Case Study: Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance , McCague Borlack LLP, February 07, 2022
• Improperly sued? Can you recover costs if the action is dismissed? Rule 23.05 , McCague Borlack LLP, February 03, 2022
• SCC Refuses to Fault Insurer for Gaps in Investigation , Brownlee LLP, December 03, 2021
• HBC Trademark Troubles: A review of the Zellers trademark dispute between HBC and a Quebec retail family , McCague Borlack LLP, November 09, 2021
• In Nelson V Marchi, Supreme Court Clarifies the Core-Policy Defence for Municipalities , Brownlee Law, November 02, 2021
• The Supreme Court of Canada Weighs the Validity of Limitation of Liability Clauses , Brownlee Law, October 27, 2021
• Revisiting Governmental Immunity in Negligence Claims - Case Study: Nelson (City of) v. Marchi , McCague Borlack LLP, October 26, 2021
• Terminating with care: an insurer’s guide , Brownlee Law, August 09, 2021
• You Can’t Always Dodge a Waiver , Brownlee Law, July 29, 2021
• Just Another Contract – SCC Says No Special Rules Apply to Releases , Brownlee Law, July 28, 2021
• Insurers: Don’t Tell on Your Insureds , Brownlee Law, July 08, 2021
• Loss of Care, Guidance, and Companionship Damages: A New Benchmark? Case Study: Moore et al., v. 7595611 Canada Corp. , McCague Borlack LLP, June 28, 2021
• Unrealistic Coverage: Insurer tripped up by loose policy language - Case Study: Surespan Structures Ltd. v Lloyds Underwriters , June 16, 2021
• Can an Insurer Rely on Warranty Provisions to Deny Coverage? , Brownlee Law, May 25, 2021
• Lost in Interpretation: Insurance Claim Arbitration Muddies the Effect of Clear Provincial Statutory Language , Brownlee Law, May 13, 2021
• The Current State of the Law on Adverse Costs Insurance , This was first presented at CDL's 2021 Insurance Coverage Symposium, May 07, 2021
• Crown’s Cost Consequences Limited by Bill 65 , Brownlee Law, April 29, 2021
• Pub Not Liable for Spontaneous Assault by Assailant Due to ‘Hidden Intoxication’ , Brownlee Law, April 08, 2021
• Must an Insurer wait until Trial to Contest the Validity of the Policy? - Case Study: IT Haven v Certain Underwriters at Lloyd's , April 06, 2021
• Litigation Loans and Adverse Cost Insurance , March 26, 2021
• Winter Maintenance Contracts - Featured Case Study: Ruetz v Metro Canada , February 16, 2021
• 2 Insurance Policies, 1 Insured: Who Defends the Action, Who Pays the Costs of the Defence, and Who Controls the Defence? Case Study: Markham (City) v. AIG , December 03, 2020
• Municipal Snow Removal Policies and Practices , Brownlee LLP, October 21, 2020
• The Court exercises its "Fact Finding Powers" - Case Study: Carmichael v. GSK Inc. , September 26, 2020
• Ontario Courts updating online infrastructures to accommodate COVID-19 needs for safety , August 11, 2020
• Updates around Civil Matters in the Superior Court of Justice in the Central East Region , August 10, 2020
• Advance Payments and the Requirement of “X-ray Disclosure” , Brownlee Law, August 07, 2020
• Corrosion Exclusion II - Resulting Physical Damage An exception to the exclusion in case: MDS Inc. v Factory Mutual Insurance , McCague Borlack LLP, July 03, 2020
• Corrosion exclusion denied due to ambiguity: This author disagrees with the determination in case: MDS Inc. v Factory Mutual Insurance , McCague Borlack LLP, June 24, 2020
• A Plea for Simple Pleadings , McCague Borlack LLP, May 31, 2020
• It's 2020: Bringing the Courts in Line with the Times During COVID-19 - Case Study: Arconti v. Smith , McCague Borlack LLP, May 21, 2020
• COVID-19: Business interruption – Are you covered? , McCague Borlack LLP, April 14, 2020
• Impacts on the Performance of Agreements Due to COVID-19: A Focus on Development Agreements , Brownlee LLP, April 07, 2020
• Anticipating Business Interruption Coverage Issues Arising From COVID-19 , Brownlee LLP, April 06, 2020
• Summary of Emergency Measures For Homeowners , McDougall Gauley LLP, March 25, 2020
• Can a claim be denied due to criminal history from 20 years ago?: Case Study: Mohammed v The Manufacturers Life Insurance Company , March 12, 2020
• Analyzing Use or Operation of a Vehicle - Case Comment: Hunt v Peel Mutual Insurance , February 14, 2020
• The Five "C"s Of Trip And Fall Liability: Featured Case Study - Bzdziuch v Loblaws , January 23, 2020
• A Duty of Good Faith is Foundational: Case Study: Demetriou v. AIG Insurance Company of Canada (2019 ONCA 855) , January 13, 2020
• Throwing eggs from a car is an ordinary and well-known activity , April 10, 2019
• Egg on your face - you may have a claim: Case Comment: Gilbrairth v. Intact Insurance , April 08, 2019
• Jam Session Gone Wrong: How an Office Party Created a Coverage Debacle - Case Study: RSA v. Intact , March 08, 2019
• Indemnification and the Duty to Defend in Commercial Agreements: Alberta Court of Appeal Case Study: Kostic , February 19, 2019
• Unpacking the Crate: A Carrier's Tools for Collecting Unpaid Freight Charges , February 15, 2019
• Some Diamonds are Not Forever: The Insurance Case of the $580,000 Stolen Ring , February 05, 2019
• Approximately 2.5 Million Dollars Gone in Approximately 2.5 Seconds: An Insurance Coverage Nightmare , January 28, 2019
• Court of Appeal Clarifies Approach to Overlapping Insurance Coverage: Case Study: TD v. Intact , January 17, 2019
• No Playing Around: An UPDATE on Tort Liability and School Yard Injuries , September 12, 2018
• Acting for both Insured and Insurer: What Counsel Need to Know , September 08, 2018
• Case Study: Mary Shuttleworth v Licence Appeal Tribunal , July 23, 2018
• To Warn or Not To Warn: An Explanation of the Duty to Warn and the Reasonable Foreseeability Analysis: Case Comment: Maxrelco (Immeubles) v Lumipro Inc. , June 29, 2018
• Secrets Between Children and Parents Are Litigation Records of a Children's Lawyer subject to Father's Freedom of Information Request? , June 28, 2018
• Insurers Beware: Ontario Court Rules Underwriting and Broker Files are Producible in Tort Litigation when Consent is a "Live Issue" , June 27, 2018
• Common Interest Privilege: A New Tool in the Litigation Basket , May 25, 2018
• Insurer's Duty of Good Faith will not be expanded by Supreme Court Case Comment: Usanovic v. Penncorp , First Published to MB's Client List, January 09, 2018
• Alcohol, Snowmobiling, Breaching a Probation Order and Insurance Coverage , November 13, 2017
• The IPC clarifies when insurers may and may not collect Health Card numbers , November 02, 2017
• The Sharing Revolution – Accident Benefits Coverage For Uber Drivers & Passengers , October 16, 2017
• No Playing Around: Tort Liability and School Yard Injuries , September 18, 2017
• Everything You Need to Know About Trial Insurance: Security Against Bad Outcomes at Trial For Sale! , First presented at an MB Client Seminar, July 10, 2017
• Home Depot Not Liable for Slip and Fall in Parking Lot , March 22, 2017
• Do Parents Know Best? An Update on the Enforceability of Waivers Executed on Behalf of Infants , First published with Canadian Underwriters Magazine , February 10, 2017
• Combatting Exposure: Utilization of Waivers by Ski Hill and Resort Operators - A Defence Perspective , First presented at the Sport Seminar, February 02, 2017
• Fans Beware: The Risks of Watching Your Favourite Athletes , First presented at the Sport Seminar, February 02, 2017
• Inherent Risks in Hockey: Recent Developments in the Law , First presented at the Sport Seminar, February 02, 2017
• First Party Claims: Affidavit of Documents (and Conclusion) - Part 7 of 7 , First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer, November 28, 2016
• First Party Claims: Pleadings - Part 6 of 7 , First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer, November 27, 2016
• First Party Claims: Special Considerations - Part 5 of 7 , First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer, November 26, 2016
• First Party Claims: Is Bad Faith Pleaded? - Part 4 of 7 , First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer, November 25, 2016
• First Party Claims: The Insurance Policy - Part 2 of 7 , First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer, November 23, 2016
• The Canadian Inter-Company Arbitration Agreement: How does it work? , November 03, 2016
• Caring for the Elderly and the Duty to Supervise , September 30, 2016
• The “Lullaby Standard of Care” for Tavern Owners Case Study: Linton v. Tholos Restaurant , September 28, 2016
• The Mechanics of the Duty to Defend , September 15, 2016
• PIPEDA and the Internal Complaints Process of Insurers and Banks Case Study: Decision from the Office of the Privacy Commissioner of Canada , September 13, 2016
• How to "knock out" claims to Tavern Owners sued for injuries sustained in bar fights , August 31, 2016
• Featured Case: Summary Judgment in Third Party Claims Alive & Viable on Claims for Contribution & Indemnity , MB Newsletter, August 18, 2016
• Declaring Values on "Contracts of Carriage" in Ontario , MB Transportation Newsletter, August 17, 2016
• Pokémon Go: Augmented Reality is the New Reality for Liability Insurers , July 15, 2016
• An overview of the statutory obligations for insurers to participate in mediation and to attempt to settle , July 05, 2016
• Featured Case: Zuk v Atkinson Answer Undertakings in a Timely Fashion or Your Case May Be Dismissed!! , June 30, 2016
• Public Sharing of Private and Personal Information and Videos: Cyberbullying and the Implications for Insurers , MB Newsletter, May 02, 2016
• Bring out your calculators! Retroactive Attendant Care and SABS interest , May 02, 2016
• For Want of Jurisdiction , Previously published by Canadian Underwriter.ca, January 05, 2016
• When all is said and done: Final Releases , First presented at a Client Seminar, December 16, 2015
• Who's to Blame? Tips for Early Identification of Subrogation and Potentially Liable Parties , First presented at a Client Seminar, December 16, 2015
• Fans: Enter at Your Own Risk , First presented at a Sports Liability Seminar, November 25, 2015
• Passing the Buck: Risks Willingly Assumed and Liability Apportionment at Resorts , First presented at a Sports Liability Seminar, November 25, 2015
• Real and Substantial Connections and Beyond: Responding to Foreign Lawsuits and Challenging Jurisdiction , First presented at a Sports Liability Seminar, November 25, 2015
• Case Commentary: Trimmeliti v. Blue Mountain Resorts Ltd. , MB Sports, Resorts & Recreational Liability Newsletter, October 27, 2015
• The Best Defence is Sometimes Not the Best Offence: the Value of a Well-Drafted Waiver , MB Sports, Resorts & Recreational Liability Newsletter, October 27, 2015
• Happy Trails: Strategies for reducing a recreational trail occupier's exposure to liability , First presented at MB's Sports Law Seminar, May 14, 2015
• Waiver of Liability vs. Public Policy - Which Takes Precedent? , First presented at MB's Sports Law Seminar, May 14, 2015
• Know your limits! Contributory Negligence in a sport and recreation context , First presented at MB's Sports Law Seminar, May 14, 2015
• Cyber Liability , First Presented at OIAA Provincial Conference, February 09, 2015
• Ontario Court of Appeal releases decision in expert evidence case , MB Newsletter, January 29, 2015
• Bad Faith Claims and Bifurcation after Bhasin v. Hrynew: An Insurance Perspective , First Published with Toronto Law Journal, January 21, 2015
• Too big for its britches? Fitting Chronic Pain into the Minor Injury Guideline of Ontario's Accident Benefits Scheme , First presented at an MB Client Seminar, October 31, 2014
• Establishing Causation in Cases of Chronic Pain , First presented at an MB Client Seminar, October 31, 2014
• Chronic Pain and Suffering: Non-Pecuniary General Damages Awards in Cases of Chronic Pain , First presented at an MB Client Seminar, October 31, 2014
• Future Care Costs: Preparation and Mitigation , First presented at an MB Client Seminar, October 31, 2014
• Cyber and Privacy Risks: Class Action Exposures , First presented at an MB Client Seminar, September 24, 2014
• Fifty Shades of Claims: When Private Information becomes Public in the USA , First presented at an MB Client Seminar, September 24, 2014
• Abstract of Subrogation: Carriage and Control of the Action and Independent Settlement of the Subrogated Claim , Reproduced by permission of Canada Law Book, a division of Thomson Reuters Canada Limited., July 31, 2014
• Mary Carter Agreements , First presented at an MB Client Seminar, June 16, 2014
• Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 , First presented at an MB Client Seminar, June 11, 2014
• Paying For The Future: An Analysis Of Large Awards For Future Care Costs , First presented at an MB Client Seminar, June 10, 2014
• Concussions and Return to Play Guidelines , First presented at MB's Sports Liability Seminar, May 29, 2014
• The Legal Implications of Concussions in North American Contact Sports , First presented at MB's Sports Liability Seminar, May 29, 2014
• Protection for Settlement Negotiations , First presented at an MB Client Seminar, March 04, 2014
• Ontario Automobile Insurance Dispute Resolution System Review - Final Report , Justice Cunningham, February 20, 2014
• Court clears up claims confusion , First published in the Insurance Business of Canada Magazine. October 2013 issue, February 05, 2014
• Recent Ontario Court of Appeal Decision: All Defence Costs are not Created Equally , MB Insurance Coverage News Alert, December 13, 2013
• Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett , MB News Alert, December 11, 2013
• A Defence Lawyer's Guide to Investigating Modern Insurance Fraud , Presented by McCague Borlack at the Medical Legal Society of Toronto , November 06, 2013
• Branco v American Home Assurance Company, 2013 SKQB 98 , First Presented at a McCague Borlack Accident Benefits Lunch and Learn, October 11, 2013
• First FSCO Decision on the Minor Injury Guideline , First Presented at a McCague Borlack Accident Benefits Lunch and Learn, October 09, 2013
• Fraud in Accident Benefits: Red Flags and Strategies for Handling , First Presented at a McCague Borlack Accident Benefits Lunch and Learn, October 09, 2013
• Unraveling the Mystery of Priority Disputes , First Presented at a McCague Borlack Accident Benefits Lunch and Learn, October 07, 2013
• Executive Officers are Employees: The "Gap" Between Workers' Compensation and General Liability Policies , MB Coverage Article Database, September 12, 2013
• Sports Recreation & Sports Liability: Litigating Cases Involving Injuries to Minors , First presented at McCague Borlack's Sports Liability Seminar, September 11, 2013
• The Unpredictability of Children and Sporting Goods: Product Liability and the Child Plaintiff , MB Sports and Recreation Seminar, September 11, 2013
• Kids May Be Kids, but Adults Oversee: The Liability of Adult Supervisors for Child Injuries , MB Sports and Recreation Seminar, September 11, 2013
• Mother May I? The Effectiveness of Waivers and Permission Forms in Cases of Injured Minor Plaintiffs , MB Sports and Recreation Seminar, September 11, 2013
• Expecting the Unexpected: Occupiers’ Liability and Minor Plaintiffs , MB Sports and Recreation Seminar, September 11, 2013
• Appropriate Limitation Periods Clarified for All-Risk Business Insurance Policy , MB Insurance Coverage News Alert, August 07, 2013
• Recent Decision: Case Summary: Aweys and Intact Insurance , April 13, 2012