{"id":17217,"date":"2020-12-04T16:36:27","date_gmt":"2020-12-04T21:36:27","guid":{"rendered":"https:\/\/www.rsslex.com\/publications\/the-obligation-to-defend-the-superior-court-steps-in\/"},"modified":"2022-01-10T09:45:46","modified_gmt":"2022-01-10T14:45:46","slug":"20201204_the-obligation-to-defend-the-superior-court-steps-in","status":"publish","type":"post","link":"https:\/\/www.rsslex.com\/en\/bulletins-en\/20201204_the-obligation-to-defend-the-superior-court-steps-in\/","title":{"rendered":"The Obligation to Defend: The Superior Court Steps In"},"content":{"rendered":"

<\/p>\n

The Superior Court\u2019s decision in Labelle c. Jivestudio Inc.<\/em>, 2020 QCCS 3420<\/a>, rendered in the midst of the pandemic, ruled on the underlying criteria to determine, at a preliminary stage, whether an insurer has an obligation to take up its insured\u2019s defence.<\/p>\n

The plaintiff was seriously injured while performing an acrobatic manoeuvre with a troupe from the defendant Jivestudio\u2019s dance school. She is now paralyzed and must use a wheelchair. She, along with members of her family, sues the dance studio, its owners and the people who participated in the training on the day of the accident. She alleges that the manoeuvre she was asked to practice was dangerous and that the coaches and participants were not adequately trained.<\/p>\n

The defendants were the dance studio and its owners, along with a member of the troupe who had been hired to create a choreography and train the dancers. All the defendants have called their respective insurers in warranty, requesting that, as insurers, they provide a defence to the claims and, eventually, pay any compensation that the defendants could be condemned to pay. Thus, South Western Insurance Group Ltd and Sovereign were sued as insurers of Jivestudio and its owners, and Intact Insurance was sued in warranty by its insured, the defendant member of the troupe. Sovereign argued that dance activities were excluded from the policy, while Intact claimed that its insured was only covered for her personal activities and not for her professional activities at Jivestudio. South Western requested that the call in warranty be dismissed, alleging that it was not Jivestudio\u2019s insurer.<\/p>\n

Mr. Justice Collier first set out the basic principles underlying the application of article 2503 of the Civil Code of Qu\u00e9bec<\/em> requiring the insurer to stand up for and defend any person entitled to the benefit of insurance. Those principles were set out by the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada<\/em>, 2010 SCC 33, [2010] 2 SCR 245<\/a>, and reiterated more recently by the Court of Appeal of Quebec in D\u00e9veloppement les Terrasses de l\u2019\u00cele inc. c. Intact, compagnie d\u2019assurances<\/em>, 2019 QCCA 1440<\/a>. Accordingly, the Court must first rule on protection, then exclusions, and, finally, exceptions. The onus is on the insured to demonstrate that the claim may fall under the original protection: the burden is then reversed, and the insurer must prove that, under an exclusion clause, coverage is clearly<\/em> and unequivocally<\/em> excluded and that there is no possibility that the insurer be required to compensate the insured. Should this happen, the burden will again be reversed, and the insured will have to show that an exception to the exclusion applies.<\/p>\n

Analysing the cases against each insurer separately, the judge concluded:<\/p>\n