Canada: On-Risk E-Bulletin @ Gowlings - October 3, 2008

Last Updated: October 10 2008

Edited by Paul Stein and Tanya Frizzell

  • Message from the Executive Editors - By Tanya Frizzell, Calgary
  • Insurer Precluded from Denying Coverage to Insured's Employees Despite a Finding of No Coverage Under the Policy - By Deborah Templer, Toronto
  • Case Summary: Mustapha v. Culligan of Canada Ltd. - By Taryn Burnett, Calgary
  • Insurance Coverage for Contingent Business Interruption - By Eniko Molnar, Calgary

Message from the Executive Editors

By Tanya Frizzell, Calgary

In this issue of Gowlings' On-Risk E-Bulletin, Deborah Templer from our Toronto office comments on an interesting decision addressing the potential liability of insurers with respect to unsatisfied judgments obtained against an insured.

Taryn Burnett comments on the recent Supreme Court of Canada decision in Mustapha v. Culligan of Canada Ltd., where the Court upheld the decision of the Ontario Court of Appeal and held that the Plaintiffs' damages were too remote.

Eniko Molnar provides a case comment on a recent decision rendered by the Alberta Court of Appeal dealing with the issue of business interruption loss.

As always, please feel free to contact the authors of any of the articles in this issue of On-Risk if you have any questions.

Insurer Precluded from Denying Coverage to Insured's Employees Despite a Finding of No Coverage Under the Policy

By Deborah Templer, Toronto

The 2006 decision of the Alberta Court of Queen's Bench in McConnell v. Aviva Insurance Co. of Canada Ltd.("McConnell"), serves as an interesting commentary on the potential liability of insurers with respect to unsatisfied judgments obtained against their insureds. The result reached by the court also provides a cautionary tale to insurance defence counsel about the defence of claims where an insured's employees are named personally.


The facts in McConnell are not remarkable. The plaintiff, Edith McConnell ("McConnell"), hired deCou Holdings Ltd., a moving company, to move her personal belongings from Alberta to British Columbia. Two of deCou's employees, Patrick Mallette ("Mallette") and Joseph Robichaud ("Robichaud"), were involved in transporting her goods. While the property was in transit, a fire erupted in the moving truck, resulting in the destruction of McConnell's belongings. McConnell sued deCou as well as Mallette and Robichaud personally, alleging breach of contract and gross negligence.

DeCou held a Cargo Insurance Policy that was purchased through a predecessor of Aviva Insurance Company of Canada. The policy limit was $80,000, with a $1,000 deductible. DeCou was the only named insured under the policy. Though some contracts of insurance expressly define the term "insured" to include employees of a named insured while acting within the scope of their employment, the Aviva policy did not. Nevertheless, Aviva instructed its solicitors to defend the action on behalf of both deCou and the two employees.

Mallette was contacted and advised of the action but disappeared before the examinations for discovery, not to be found again. Robichaud was never located and, to the knowledge of those involved, never informed of the action. As a result, McConnell filed a contempt application against the two employees, which was defended by Aviva's solicitors on their behalf. McConnell was successful in having the employees' pleadings struck and judgment awarded against the employees in the amount of $155,093.68.

S. 530 of the Alberta Insurance Act

Not surprisingly, McConnell was unsuccessful in locating either employee to enforce the judgment. Having failed to collect her judgment from Mallette and Robichaud, McConnell's solicitors shrewdly moved to attempt to collect the $155,093.68 against Aviva itself. They did this by way of an application under section 530 of Alberta's Insurance Act, which provides as follows:

In any case in which a person insured against liability for injury or damage to persons or property of others has failed to satisfy a judgment obtained by a claimant for the injury or damage and a writ of enforcement against the insured in respect of the judgment is returned unsatisfied, the enforcement creditor has a right of action against the insurer to recover an amount, not exceeding the face amount of the policy or the amount of the judgment, in the same manner and subject to the same equities as the insured would have if the judgment had been satisfied.

The Ontario Insurance Act contains a provision that is similar in substance, being s. 132.

Estoppel by Representation

The first issue addressed by the court on the s. 530 application was whether the employees were 'insured persons' under the Aviva policy. Recognizing that many contracts of insurance expressly extend coverage to employees of the insured while acting in the scope of their employment, the court found that the logical conclusion to be drawn from Aviva's failure to include such an express provision was that the insurer did not intend to extend coverage to employees. Accordingly, the court concluded that Robichaud and Mallette were not insureds under the terms of the policy.

Nevertheless, the analysis did not end there. McConnell then argued that Aviva was bound to treat Robichaud and Mallette as "insureds" under the policy on the basis of the doctrine of estoppel by representation. Because Aviva's solicitors defended the McConnell action and the contempt application on behalf of the employees, McConnell argued that Robichaud and Mallette detrimentally relied upon Aviva's representation that they were covered under the policy. Consequently, Aviva was estopped from subsequently taking the position that the employees were not covered under the policy.

The court then dealt with each employee individually. Robichaud went missing prior to the commencement of the initial action and was never located. Accordingly, the court held that Robichaud could not have relied on Aviva's representation of coverage to his detriment and, consequently, that Aviva was not estopped from denying coverage to Robichaud in accordance with the terms of the policy.

Mallette, on the other hand, was aware of the initial action. The court found that he had been prejudiced by a false sense of security that Aviva would cover any award granted to McConnell. Because Aviva chose to defend him from the commencement of the action, the insurer was estopped from denying coverage.

An alternative defence offered by Aviva was that Mallette had voided his coverage under the policy by failing to cooperate in the defence of the action, a requirement of insureds under Aviva's policy. The court noted, however, that Aviva continued to defend Mallette long after it knew about his non-compliance. As a result, Aviva was precluded from now asserting this as a breach of the policy.

Scope of Recovery under s. 530

Having found that coverage was to be afforded to Mallette under the Aviva policy, the final consideration for the court was whether Aviva was liable to pay McConnell the full $155,093.68 judgment obtained against the employees. s. 530 of the Insurance Act specifically limits a creditor's right to recover against the insurer for an unsatisfied judgment to an amount "not exceeding the face amount of the policy or the amount of the judgment".

McConnell argued that the restriction of recovery up to policy limits under s. 530 should not apply in this case as Aviva failed to advise Mallette of the policy limit and his potential personal liability for a judgment in excess of the limit. Again, McConnell's argument was rooted in estoppel.

This argument was rejected. On a strict reading of s. 530, the court found that the amount that McConnell was entitled to recover from Aviva on the judgment obtained against the employees was restricted to the policy limit of $79,000 (being $80,000 minus the $1,000 deductible).

Conclusion: The Insurer Must Pay

Finally, the court considered whether Aviva was still able to raise a defence on behalf of Mallette on the merits of the case and in turn avoid liability under s. 530. The court found that in circumstances where the insurer had the opportunity to contest liability at an earlier stage in the proceedings, it is not entitled to reopen the merits of the judgment at a later stage.

In the result, Aviva was precluded from denying coverage to the insured's employee and avoiding payment of a $79,000 judgment in relation to that employee, largely because of the manner in which it instructed and/or allowed its solicitors to defend the McConnell action on behalf of the insured. Thus, irrespective of the court's finding that the terms of the policy did not extend coverage to the insured's employees, Aviva was stuck with the $79,000 bill.

McConnell serves as a warning to insurers and insurance defence counsel alike to step cautiously when planning and executing a defence to an insured's action. The result in this case could have been avoided by simply defending the named insured or defending the employees pursuant to an appropriately worded Preservation of Rights Agreement.

Please feel free to contact Deborah Templer for further discussion of the principles at issue in the McConnell decision.

Case Summary: Mustapha v. Culligan of Canada Ltd.

By Taryn Burnett, Calgary


On November 21, 2001, the plaintiff, Waddah Mustapha ("Mustapha"), was replacing an empty bottle of Culligan water in his water cooler. Mustapha noticed a dead fly in the unopened bottle of replacement water. Neither Mustapha nor any member of his family drank from the bottle. However, Mustapha's wife vomited immediately and Mustapha vomited at a later time. Thereafter, Mustapha became obsessed with thoughts about the dead fly in the water and about the potential implications for his family's health of having possibly been drinking unpurified water supplied in the past.

Trial Decision- Damages for Psychiatric Injury Allowed

Mustapha sued Culligan, the supplier of the bottle of water, for psychiatric injury. The trial judge accepted medical evidence that Mustapha suffered a major depressive disorder with associated phobia and anxiety triggered by the incident. He held that while Mustapha's reaction was unexpectedly severe, he attributed this to Mustapha's Middle Eastern background "where the devotion to and concern for the family is at a higher level than is found in North America," combined with the "higher level of cleanliness and avoidance of insects practiced by his family than is usual". The trial judge awarded Mustapha $340,000 in damages.

Reversal of Decision on Appeal- Damages Not Reasonably Foreseeable

Culligan appealed the trial judge's decision. The issue of law raised in the Court of Appeal decision was whether the plaintiffs were required to show that it was reasonably foreseeable to Culligan that Mustapha would sustain a psychiatric illness as a result of seeing the fly in the bottle and, if so, whether that requirement had been met.

The Ontario Court of Appeal overturned the trial decision on the basis that the injury was not reasonably foreseeable and, therefore, did not give rise to a cause of action. Justice Blair, writing for a unanimous court, held that the trial judge erred by placing too much weight on the effect that the sight of a dead fly had on this particular plaintiff.

The court stated that a plaintiff must demonstrate reasonable foreseeability of psychiatric illness in order to recover in tort. The court enunciated the test for the existence of a duty of care and, therefore, for liability to attach in cases involving psychiatric harm as follows: whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant's careless conduct.

Ultimately, the Ontario Court of Appeal found that it was not reasonably foreseeable by Culligan that Mustapha would react the way he did. There was no evidence to indicate that Culligan was made aware of or ought to have known anything about the particular sensibilities of Mustapha and his family. Mustapha's reaction was abnormal and not the response of an average sensitive person of reasonable fortitude and robustness. It stated that a duty of care will only be found where the harm was or ought to have been foreseeable, which requires an analysis of the proximity of the relationship between the parties and the probability of the harm occurring.

Mustapha also sued Culligan for breach of contract. On that issue, the court found that it was not in the reasonable contemplation of Culligan and Mustapha at the time that the contract was entered into that psychiatric harm flowing from such an incident would be the probable result of Culligan's breach of its contractual duty to provide Mustapha with clean, quality water. The court further found that there was no evidence that Culligan was made aware of Mustapha's particular hypersensitivities or that it ought to have been aware of them.

Supreme Court of Canada- Damages Too Remote to Allow Recovery

In a unanimous decision, the Supreme Court of Canada dismissed Mustapha's appeal on the basis that Mustapha's damages were too remote to allow recovery.

The court found that Mustapha had established three of the four elements needed to prove negligence, namely: (i) the existence of a duty of care owed to him by Culligan; (ii) a breach of that duty by Culligan by providing Mustapha with contaminated water; and (iii) injury or damages suffered by Mustapha.

While the court accepted that Mustapha had suffered the psychiatric disorders diagnosed by his physicians following the incident, Mustapha failed to show that it was reasonably foreseeable that a person of "ordinary" fortitude would suffer serious injury from seeing a dead fly in the bottle of water that he was about to install. The court stated that unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable. The court held that the trial judge erred by applying a subjective standard of vulnerability when considering whether the plaintiff's injuries were compensable.

The Supreme Court also considered the claim for breach of contract and held that the need for foreseeability of injury similarly applies to a claim in contract, and that as Mustapha's damages could not reasonably have been within the contemplation of the parties when they entered into their agreement, this claim also failed.

To discuss this recent decision in further detail, please contact Taryn Burnett.

Insurance Coverage for Contingent Business Interruption

By Eniko Molnar, Calgary

The Court of Appeal decision of Neste Canada Inc. v. Allianz Insurance Co. of Canada, focused on the interpretation of a policy providing indemnity for business interruption and contingent business interruption. In large part it affirmed the reasoning of Justice Rowbotham in the trial decision of Neste Canada Inc. v. Allianz Insurance Co. of Canada.

The insured ("Neste") obtained a policy that included coverage for losses and expenses arising from business interruption and contingent business interruption from its insurer, Allianz. Neste and Chevron Canada Limited ("Chevron") each owned a fifty percent interest in a plant refining methyl tertiary butyl ether ("MTBE"). A number of entities, including TransCanada Midstream ("TCM") and Kinetic Resources ("Kinetic"), supplied Neste with butane, the raw material used to produce MTBE.

Both TCM and Kinetic obtained some of their butane from the Taylor plant in British Columbia. Due to an explosion and fire at the Taylor plant, TCM and Kinetic reduced their butane supply. Neste in turn curtailed its production of MTBE and then initiated a total shutdown. During the shutdown some maintenance work was performed on the plant.

Interpretation Of The Policy

Direct vs. Indirect Suppliers of Butane

Allianz argued that losses for contingent business interruption covered losses resulting from damage to "facilities of the suppliers." Since TCM had an ownership interest in the Taylor plant, but Kinetic did not, Allianz argued that losses resulting from Kinetic's failure to supply butane were not covered under the policy. The trial judge held that coverage for interruption of supply included direct as well as indirect suppliers.

She noted that the definition of "suppliers" in the policy required two things: that the entity not be owned or operated by the insured, and that the entity deliver its goods or services to the insured. Since there were no negotiations regarding the wording of the policy, Justice Rowbotham applied an interpretation of the policy that she found best accorded with the intention of the parties at the time they entered into the contract.

She concluded that legal ownership of the facilities of the suppliers was neither contemplated nor within the control of the insured. Making the distinction advocated by Allianz would lead to an absurd result in that Neste could lose coverage because a supplier divesting itself of its assets, without the knowledge of Neste. The Court of Appeal agreed with Justice Rowbotham, and held that the effect given by the trial judge to the language of the policy fit with the purpose of the policy. If the insurer had intended to limit coverage on this basis it could easily have used specific words in the policy.

Waiting Period

The Court of Appeal affirmed that calculation of losses within the policy deductible for Neste commenced with the curtailment of production, not from the date of the explosion. The word "occurrence" was defined in the policy and referred to the occurrence of damage. As it pertained to the insured, this referred to damages arising from the curtailment of the production of MTBE. Were it otherwise, the insured would have no reason to mitigate its damages. The Court of Appeal was fortified in its reasoning by noting that there was a cap on all deductibles and waiting periods. However, without damage to the insured, a cap could not be applied.

Pre-judgment Interest

The trial judge awarded interest from July 1, 1999, from the 61st day after the proof of loss was filed by the insured. The Court of Appeal reasoned that she must have implied a finding that there was enough detail by July 1, from which date she calculated the prejudgment interest, for the insurer to know whether to deny or pay the claim.

Cause of the Loss

The trial judge concluded that the curtailed production of MTBE was mainly due to the lack of butane and the ultimate decision to operate at less than full capacity was a reasonable one. She further concluded that the shutdown was caused not by a need for maintenance but the reduced supply of butane.

The policy provided that coverage was for "loss resulting from the necessary interruption of business conducted by the insured". Coverage under the contingent business interruption extended to losses resulting from the interruption of business due to damage or destruction of property at the facilities of the suppliers of the insured. This damage or destruction had to prevent or delay the delivery of materials upon which "normal operation of the insured's business [was] dependent". Normal was also defined in the definitions as "the condition that would have existed had no loss occurred".

The trial judge found that the main reason for the curtailment of production of MTBE and the shutdown was the reduction in the butane supply, which was causally linked to the explosion at the Taylor plant. She initially framed the question as whether the curtailed production was "necessary", but the insurer argued at trial that Neste's decision was not reasonable. However, when reading the judgment as a whole, the Court of Appeal concluded that Justice Rowbotham understood that the curtailment must have been "necessary" in all the circumstances and only framed the question in terms of "reasonableness" because of the insurer's argument.

The Court of Appeal went one step further and held that the threshold necessity requirement was met in this case. In giving a proper meaning to "necessity", the Court of Appeal noted that the policy provided that in case of a business interruption the insured was to resume "normal operations" as soon as "practicable". "Practicable" necessarily meant that some business judgement, in a reasonable fashion, was to be applied to the circumstances. Whether the curtailment of production was "necessary" involved weighing a matrix of factors, including safety, economic, operational, and environmental considerations. The "necessary" clause and the "normal operations" clause had to be read together.

The insurer was required to compensate the insured for losses arising from the curtailment of production and for the losses arising from the shutdown. Justice Rowbotham held that the insurer failed to establish that the maintenance, undertaken during the shutdown, was the cause of improved production subsequent to the shutdown, and therefore no deductions were made for the "betterment" of the plant. The Court of Appeal referred to case law on collateral benefits and held that the insurer suffered no deprivation. The repairs might well not have occurred without the insured peril and therefore the insurer had no legitimate reason to complain that the insured had drawn a collateral benefit. Were it otherwise, an insured would not attempt to make repairs, leaving all parties worse off.

To discuss the Neste decision in further detail, please feel free to contact Eniko Molnar.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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