The Supreme Court of Canada on a Duty to Defend - part 3

Justice Rothstein, for the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33., helpfully affirmed that CGL insurance policies are most typically written in three sections, being (i) coverage, (ii) exclusions and (iii) exceptions to the exclusions.

Within the first section, the onus is on the insured to show that the pleadings fall within the initial grant of coverage.

The next section, exclusions, should be read in light of the initial grant of coverage and do not create coverage in themselves. Exclusions only preclude coverage when the claim otherwise falls within the initial grant of coverage.

The third section, exceptions to exclusions, also do not create coverage but bring an otherwise excluded claim back within coverage where the claim fell within the initial grant of coverage in the first place.
Justice Rothstein concludes that the pleadings reveal a possibility of “property damage” and also sufficiently allege an “accident” such that the claim in the pleadings falls within the initial grant of coverage provided by the policy. The insurer, Lombard, then argued that the “work performed” exclusion precludes coverage. Lombard argued that there was no “subcontractor exception” to the exception and therefore work performed by subcontractors was also excluded. However, Justice Rothstein concluded that the exclusion did not clearly exclude subcontractors’ work and that there is a possibility of coverage so that the duty to defend is triggered.

This decision helpfully sets out the law in this complex area in a clear and succinct way. Hopefully this will help eliminate some of the confusion.