November 2018
An insurer cannot subrogate against its own insured. Litigants have tested this well-known bar to subrogation since the s.s. Fitzmaurice struck and sunk the s.s. Dunluce Castle, and the latter’s underwriters tried to recover against the former’s owner, although he owned both vessels. Despite a long history, cases still arise that explore its limits. In particular, actions involving construction projects often address subrogation given the involvement of insured owners, contractors, subcontractors, builders risk policies and property insurers.
September 2017
Insurance coverage jurisprudence has its share of general principles. Lawyers even remotely familiar with the area may eagerly recite phrases like “contracts of adhesion”, they may expound that “coverage is interpreted broadly while exclusions are interpreted narrowly”, or perhaps at the opportune moment they may even throw out a “contra proferentem”.2 Insurance “generalities” are so reliable that in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37 the Supreme Court of Canada assured us that parties interpreting insurance policies should resort to the general rules of interpretation that apply to insurance policies, adding further that appeal courts ought to apply a correctness standard of review as insurance policies constitute standard-form contracts not normally subject to negotiation. But although insurance coverage cases have generated well-established principles of interpretation, various cases within the last year confirm that the current state of the law does not provide all the answers or foreclose on future insurance coverage litigation.
October 2016
The Supreme Court of Canada recently released its long awaited decision in Ledcor Construction Ltd v Northbridge Indemnity Insurance Co., 2016 SCC 37 (“Ledcor”). The case is important for at least two reasons: first, the case is a significant decision concerning the proper standard of review for courts asked to interpret standard form contracts. In this decision, the SCC confirmed that interpretation of standard form contracts is often a question of law, and so the standard of review of standard form contracts ought to be correctness. In this manner the SCC endorses the precedential value that a consistent interpretation presents, while suggesting that the “factual matrix” surrounding the particular usage of standard form contracts will generally be less impactful.
May 2016
The rights of parties in shipping arrangements are defined through what is known as contracts of carriage. Such contracts encompass the terms and conditions of the shipment between those involved in the shipment of goods, for instance. Frequently in the carriage of goods context, the tendency is to simply refer to the bill of lading as governing all terms of carriage. Indeed, provincial regulations (in most provinces) deem to incorporate certain uniform terms and conditions into bills of lading, and thus into contracts of carriage. In this manner the bill of lading does frequently represent the best evidence of the parties’ intentions and their contract of carriage.