Case Spotlight
Each year, the lawyers at Harper Grey handle hundreds of disputes. In most instances the issues are resolved through mediation or negotiated settlements.
In this section we highlight a couple of our cases that are significant either for the legal precedents they have set or for the scope of the issues they have addressed.
Supreme Court of B.C. decision in Swagger Construction Ltd. v. ING Insurance Company
Harper Grey partner Bruce Butler successfully represented our client before the B.C. Supreme Court in Swagger Construction Ltd. v. ING Insurance Company of Canada et al. Mr. Butler was counsel on behalf of ING, one of three insurers that opposed the Petitioner’s application for a declaration that the insurers were required to defend it in ongoing litigation involving construction deficiencies in a "leaky building".
ING provided the wrap-up coverage for the project. Zurich and American Home provided comprehensive general liability (CGL) policies during the period following substantial completion to the general contractor on the construction project. The claims against Swagger by the building owner (UBC) were advanced in UBC's Third Further Amended Counterclaim and included a long list of construction deficiencies including the alleged failure to design and/or install exterior flashing, the failure to design or install the air/vapour barrier membrane and other similar allegations. The Counterclaim included an allegation that "the construction deficiencies have caused damage to the exterior and interior building components (the "Resultant Damage")." It also alleged that the construction deficiencies and Resultant Damage posed a danger to visitors and made the building unfit for its intended purpose. The remedial work that was alleged to be required as a result of construction deficiencies included repairs of wall and roof leakage, repairs to curtain wall leakage and repairs relating to the failure of the building envelope.
Mr. Justice Smith dismissed the Petitioner’s application for a declaration that the insurers owed Swagger a duty to defend it in the Counterclaim. Mr. Justice Smith found that in light of the definition of property damage within the policies it was likely that there was no property damage with the possible exception of minor damage to non-structural portions of the work such as carpeting and interior drywall. Without making a decision on that issue, he determined that, in any event, there was no "occurrence" and thus the claims did not fall within the insuring agreements.
The decision is a timely one for insurers in relation to leaky building and other construction claims. The decision is based to a large extent on the fact that the work of the general contractor is the whole building. It will severely limit the coverage under CGL policies available to general contractors and, perhaps, developers. It should not, however, have an impact on the coverage available to sub-contractors.
Roland v. Christian Brothers of Ireland in Canada
We represented the liquidator of the Christian Brothers of Ireland in Canada in ground breaking litigation to sell trust properties, including private schools, to satisfy outstanding claims for sexual abuse perpetrated by individual Christian Brothers at the Mount Cashel orphanage in Newfoundland.
The Christian Brothers litigation involved class action proceedings in Newfoundland, winding up proceedings in Ontario, and trust proceedings in British Columbia. We worked closely with counsel in Toronto and Newfoundland.
The document production and the historical record needed to prove the case in British Columbia was considerable. The Harper Grey litigation team lead by Bryan Baynham made extensive use of an electronic database and were prepared to proceed to trial on a totally electronic basis.
The liquidator ultimately made a recovery of $19 million by way of settlement.
For more information about this case please contact Bryan Baynham, Q.C.
