| On April 6, the Court of Appeal of Québec rendered its decision in SNC-Lavalin inc. (Terratech inc. et SNC-Lavalin Environnement inc.) c. Deguise, 2020 QCCA 495.
Considering the importance of this decision for both the construction and insurance industries, RSS offers a series of newsletters discussing the main issues at stake. This is one segment of the complete series found here. |
As one can easily imagine, a judgment of over 350 pages from the Court of Appeal will raise numerous different questions.
One of those questions (the 68th raised by the parties!) touched an important subject of the insurance coverage in a general civil liability policy. When a damage occurs that manifests itself only after several months or years but that, by its very nature, had to start much earlier, which policy is triggered? The Court of Appeal had to determine the moment that the damage occurred in order to determine if the insurance policies issued, especially those of the supplier of materials and the general contractor, covered the damages claimed by the Plaintiffs (the home owners).
The relevant facts were relatively simple. A supplier of concrete delivered the material to various construction sites. The concrete was poured in forms installed by specialized foundation contractors. The forms were removed once the concrete was dry, and the construction of the building started. The problem with the foundations resulted from a process of oxidation of the pyrrhotite contained in the concrete mix that caused the concrete to swell and eventually crack. It could take years for the swelling or the cracking to become visible. The question was to determine when the process began, even if it was not yet visible. Experts from all parties were heard during the trial, who rendered contradictory testimonies. For certain experts, the process began as soon as the foundations were poured. For others, it began several months, up to 20 months, following the pouring. When the process began, it progressed slowly until the moment the cracks became visible.
The trial judge applied the theory of “Continuous Trigger” illustrated in the famous Alie decision (Alie v. Bertrand & Frere Construction Co. Ltd., 2020 CanLII 31835 (ON CA)) rendered by the Ontario Court of Appeal. The underlying facts in Alie bore great similarities with the facts in Deguise, without being necessarily identical. Though the theory of “Continuous” or “Triple Trigger” was formulated and used for many years in the United States, it was recognized and applied in Canada for a lesser period. The Alie decision was rendered in 2002 and gave a good description of its nature.
It should be noted immediately that the “Continuous Trigger” theory is not likely to apply frequently. In all cases where an event (a fire, for instance) is the direct cause of damages, the theory would be pointless, as the damage obviously occurred at a specific point in time, i.e. the time of the fire. Moreover, the theory’s only purpose is to determine if a policy is triggered by an event that takes a long period before manifesting itself. Thirdly, it goes without saying that when coverage is triggered, the Insurer may still raise all other grounds of defence available. Finally, the use of one or more of trigger theories (the Alie decision referred to four different types of triggers) remains subject to the wording of the policy. One may not be able to use the “Continuous Trigger” theory if the policy prohibits it or if it provided for the use of a different trigger.
The term “Triple” comes from the fact that the theory is made of three distinct time elements which are 1) when the damage began to form, 2) whether it kept deteriorating during the time of coverage and 3) when the damage became visible (see Alie, above, at paragraph 123). These notions remain, however, awkward to apply. That is why we prefer the use of the term “Continuous”.
As the parties in Deguise did not contest the application of the Continuous Trigger theory, there remained only one question for the trial judge to resolve, which was the date that the oxidation process really began. On this issue, the trial judge agreed with the experts who stated that the process began as soon as the concrete was poured. The Court of Appeal did not modify this conclusion as no palpable and overriding error had been demonstrated.
In application of the Continuous Trigger theory, the Court of Appeal decided that the liability insurers who were on risk at the time the concrete foundations were poured and up to the moment that the defects became visible, saw their coverage being triggered, subject, once again, to other provisions of the policy (exclusions, etc.) or other rights (nullity of the policy, etc.) that were dealt with in other parts of the decision.