Canada: Quebec Court Of Appeal Considers The Nature Of Claims Made Policies

In the recent decision Fonds d'assurance de la responsabilité professionnelle de l'Ordre des architectes du Québec c. Syndicat de Beaucours,1 the Quebec Court of Appeal handed down one of a very few Quebec rulings on "claims made" liability insurance policies. In its decision, the Court clarifies the concept of "occurrence" for purposes of this type of policy. Although the Court's reasons for judgment are succinct, the decision is likely to have a broad impact given that it is the first time that the Court of Appeal has addressed this question directly in the context of a claims made policy. Since the facts of this case are complex, we have summarized them in the following paragraphs.

The Appellant in Beaucours, the Professional Liability Insurance Fund of the Ordre des architectes du Québec (the "Fund"), had been providing general professional liability insurance to the architectural firm of Gilbert, Amyot, Côté, Leahy since 1988. In 1997, Gilbert left the partnership and obtained individual insurance coverage in an amount of $250,000 from the Fund. On May 31, 2001, Amyot in turn left the partnership. Leahy and Côté decided to continue practising as a partnership. Amyot, Côté and Leahy alleged that, on September 17, 2001, they had sent a letter to the Fund notifying it of the termination of the partnership and the terms of the termination which had occurred in May 2001.

On November 20, 2001, Côté was invited by chance to visit a property known as Beaucours managed by a syndicate of co-owners. The firm of Gilbert, Amyot, Côté, Leahy had prepared the plans and specifications for the property and had supervised construction in 1997 and 1998.2 At the time of his visit, Côté observed some visible but minor deficiencies which he supposed were construction defects attributable to the masonry contractor. Also in November 2001, the Fund sent to the now defunct partnership of Amyot, Côté, Leahy a renewal notice for its insurance policy, which was due to expire on December 31, 2001. The renewal notice appeared to take no account of the notice which had been sent by the partnership to the Fund on September 17, 2001 explaining that the partnership had been dissolved in the summer of 2001. Côté and Leahy sent a joint response to the renewal notice on November 28, 2001 and, in reply to a question by the Fund concerning possible claims for past work, they sent the Fund a brief notice to the effect that they were aware that the syndicate of co-owners had had an expert report prepared on the masonry of the property in question. They also declared they did not know what the results of the expert report were and added that it was a matter that concerned the contractors and owners more particularly. Meanwhile, Amyot responded to the Fund's notice on November 29, 2001, stating that he was not aware of any potential claim for past work. The Fund received both responses on December 3, 2001 and immediately issued policy renewal certificates for the firm of Côté, Leahy providing coverage of $500,000 and for an individual policy for Amyot also providing coverage of $500,000. Both new policies were for the period from January 1, 2002 to January 1, 2003 and neither was retroactive to the date when the partners terminated their business relationship.

On December 17, 2001, the syndicate of co-owners sent a formal demand letter to the four architects holding them solidarily liable for damage caused to the property and in January 2002 the syndicate filed an action. The Fund agreed to take up the defence of the architects but specified to the insureds that it was doing so on the basis of the two insurance policies that were in force during the year 2001, that is, the single policy issued to Amyot, Côté, Leahy for $500,000 and the policy issued to Émile Gilbert personally, who had left the partnership in 1997. The Fund's decision was initially based on its claim that the insureds had become aware of the occurrence on November 20, 2001, the date when Côté had happened to visit the Beaucours property. The Fund also claimed that even if the new insurance policies for 2002 had come into force on December 3, 2001 when the Fund received the responses to the renewal notices, the new policies could not apply to an occurrence at an earlier date which was known to the partners but had not been notified to the Fund before the policies were issued.

Mr. Justice Parent of the Quebec Superior Court dismissed the Fund's claims and found that Côté's observations when he visited the property on November 20 were not such as to allow him to foresee the possibility of a claim against the architects. Consequently, Côté was not obliged to give notice of an occurrence. According to Mr. Justice Parent, the fact that Côté was aware that the syndicate of co-owners was going to retain the services of an engineer was not a fact [translation] "which could give rise to damages or losses", according to the wording of the policy issued by the Fund. Mr. Justice Parent thus ruled that the policies in force at the time of the occurrence, namely, on December 17, 2001, when the formal demand letter was received by the architects, were the ones issued on December 3, 2001 for the 2002 year.

After reviewing the facts of the matter at length, the Court of Appeal held that the new insurance policies issued by the Fund on December 3 did come into force on that date, with the result that [translation] "[they] applied to any claim made or occurrence known after that date."3  The Court further stated that Amyot, who knew nothing at all about the defects affecting the property until he received the formal demand letter dated December 17, 2001, could not be held liable by virtue of knowledge that his former partners Côté or Leahy may have had. As for the observations made by Côté regarding the masonry defects when he visited the property on November 20, the Court agreed with the reasoning of the trial judge, who considered that they could not be construed as constituting an "occurrence" for purposes of the insurance policy. Therefore, the Court dismissed the appeal by the Fund and confirmed the trial judge's decision.

Relevance Of This Judgment

This decision confirms, in a civil law context, certain principles that were laid down by the Supreme Court of Canada over 15 years ago in Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co.4 In that decision, which also dealt with a claims made policy, the Supreme Court ruled that "[F]or a "claim" to be made there must be some form of communication of a demand for compensation or other form of reparation by a third party upon the insured, or at least communication by the third party to the insured of a clear intention to hold the insured responsible for the damages in question."5 Without citing this statement in Beaucours, the Court of Appeal has applied the underlying principle, finding that coverage under the Fund's liability insurance policy was not triggered until the architects received the formal demand letter of the syndicate of co-owners notifying them of its intention of suing them on account of defects affecting the property.

It is worth noting that the findings of the Quebec Court of Appeal are based on its analysis of the specific terms and definitions contained in the policy issued by the Fund. Since claims made policies do not all have identical wording, in analysing such situations, it is important to start by reading the relevant clauses of the policy carefully.


1. 2009 QCCA 2536, Brossard, Forget and Duval Hesler, JJ. ("Beaucours").

2. The date of 1988 was erroneously referred to in the judgment of the Court of Appeal.

3. Ibid., at para. 23.

4. [1993] 1 S.C.R. 252.

5. Ibid., at 267.

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at

Voted best law firm in Canada two years in a row.
2008 and 2009 International Legal Alliance Summit & Awards.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.