A recent decision of the Superior Court of Quebec (Perron v. Famille Marie-Jeunesse, 2023 QCCS 1719) provides some insight into when an insured may compel a liability insurer to take up its defence when the insured is already being defended by another insurer. It also provides an example of circumstances where the principle that a party may only be represented a single attorney or firm before the court may trump the insurer's right to select defence counsel. However, given that permission for leave to appeal was recently granted (Intact compagnie d'assurance c. Lavoie, 2023 QCCA 941), the Superior Court's judgment may not prove to be the last word on the issue.

Context

The insured and petitioner in this case is the former director of the Famille Marie-Jeunesse, a religious organization. In 2021, a class action was authorized against him and others in respect of the alleged physical, spiritual and psychological abuse of class members between 1997 and 2004. Because the facts at issue spanned multiple years, the claim was tendered to three insurers. One accepted to defend the insured. The demand was discontinued against the second insurer. The third insurer, Intact, refused defend the insured. The Insured therefore presented a motion to compel Intact to take up his defence. This type of motion is commonly referred to in Quebec to as a "Wellington Motion", named after the judgment in which the right of an insured to seek specific performance of the insurer's duty to defend at an interlocutory stage of the proceedings was explicitly recognized (Compagnie d'assurances Wellington c. M.E.C. Technologie inc., 1999 CanLII 13663 (QC CA)).

The Honourable Justice Claudia Prémont of the Superior Court of Quebec dismissed the arguments raised by Intact and held that there was a possibility of coverage under its policy, such that it had a duty to defend the insured. In doing so, the Court was asked to decide on three main issues:

  1. Must the Wellington Motion be supported by an affidavit?
  2. Does an insured who is already being defended by one or more of its liability insurers have the requisite legal interest to compel another insurer to take up its defence?
  3. Was it impossible that the claim would be covered under the policy, given the nature of the allegations?

Intact argued that if it were held to have a duty to defend the insured, it should be allowed to select defence counsel in respect of the allegedly faulty acts of the insured during Intact's policy periods. This request that was contested by the insured.

Decision

Regarding the first issue, the Court concluded that all facts alleged in the motion relating to the duty to defend appeared in the court record. As such, the motion did not have to be supported by an affidavit. That said, the amount of defence costs incurred and details of the allocation in respect of such costs did not appear in any of the filed exhibits. As such, the Court held that it was unable to rule on the allocation of defence costs. However, the Court invited the insurers to exercise common sense (du "gros bon sens") and work toward an agreement on the allocation of defence costs as is often done in similar situations, in order to avoid further litigation of the issue.

On the second issue, the Court distinguished this case from the Court of Appeal of Quebec's decision in Compagnie d'assurance Travelers du Canada v. Gervais Dubé inc., 2022 QCCA 1107 (Gervais Dubé), which was being relied upon by Intact in support of its argument that the insured lacked the requisite legal interest to demand that Intact contribute to defence costs. The Court pointed out that in the Gervais Dubé case, the Court of Appeal was dealing with the issue as to whether a liability insurer had the legal interest to seek leave to appeal the dismissal of a Wellington motion against other insurers. The Court of Appeal in that case underlined that the issue of the legal relationship (lien de droit) between multiple insurers, and the appropriate procedural vehicle for enforcing alleged rights between them, were issues of concern in Quebec civil law and raised multiple challenges. The Court of Appeal had considered that a motion for leave to appeal was not an appropriate forum to debate the issue, particularly where the insured itself had chosen not to appeal the lower judgment dismissing its Wellington motion.

The Court determined that unlike the Gervais Dubé case, here, it was clear that the insured had a contractual relationship with its own insurer and therefore had the legal interest to request the enforcement of its rights under that contract, including the right to be defended. The insured had the legal right to exercise its rights against one of its liability insurers, even if it was not itself engaging legal defence costs. The fact that the insured was already being defended by another insurer did not preclude it from seeking contribution from another of its liability insurers. The Court considered that to hold otherwise would go against the very principle of a Wellington Motion and would allow the reluctant insurer to benefit from the fact that others had accepted to perform their obligations under their respective policies ("aurait comme effet pernicieux de diminuer les obligations de ceux qui se traîneraient les pieds.")

Turning to the third issue relating to the intentional nature of the alleged acts, Intact sought to transpose the analysis which applied in respect of sexual abuse to psychological abuse, i.e. such abuse was by its very nature intentional, and was therefore excluded from coverage. The Court found however that the intentionally caused damage exclusion in the policy would not necessarily apply given that the alleged fault of the insured was not strictly intentional in nature. While the insured was alleged to have imposed strict rules on the members of the organization, it was possible that liability could be imposed without it having to be shown that harm was intended. In this regard, it was not "impossible" that the policy would cover the claim, such that Intact's duty to defend was triggered.

Finally, the Court held that the single ad litem attorney rule ("l'unicité de representation"), precluded Intact from naming its own counsel to defend the insured with respect to any liability relating to its policy period. The Court underlined that the general rule was that the insured should not be represented by multiple lawyers in respect of the same factual situation. In the present matter, given the continuous nature of the alleged events, it would be difficult to limit the representations in defence of the insured to certain years. There was therefore a serious risk of a duplication of representations on the same set of facts.

The Court accepted the insured's request that its existing defence counsel, who was representing it on the Wellington Motion, should represent it in respect of the all the years at issue, including those covered by Intact's policy. It rejected Intact's argument that those attorneys were in conflict of interest and considered that it was necessary for the attorneys pleading the Wellington Motion to examine Intact's policy in order to convince the court of the duty to defend owed to its client, the insured.

Take Aways

The fact that another insurer had already taken up the insured's defence did not preclude the insured from requesting enforcement of another liability insurer's duty to defend. The Wellington Motion did not have to be supported by an affidavit in respect of the facts which already appeared in the court record. This is one of the relatively rare instances in which the insurer's right to select counsel to defend the insured against allegations potentially triggering coverage under its policy, was superseded by other considerations, namely those relating to the difficultly of separating the defence between policy years and the risk of overlapping representations.

As mentioned, leave to appeal has been granted. It will be interesting to see whether the Court of Appeal upholds, overturns or varies the decision of the trial judge, notably with respect to the alleged conflict of interest of defence counsel.

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.