Regions

SNC-Lavalin inc. c. Deguise: Coverage Based on Claims Made and Reported: No Limitation for Reporting During More Than One Period of Insurance

By Jeanine Guindi, from our Insurance Law Practice Group

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.

July 3, 2020 — The decision of the Court of Appeal in Deguise and its conclusions arising from the problems caused by pyrrhotite in the foundations of many buildings in the Trois-Rivières will leave a significant impact in Quebec’s judicial history. The decision also confirms important concepts as to the interpretation of certain clauses in liability insurance policies as to the protection offered for specific insurance periods.

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SNC-Lavalin inc. c. Deguise: Date of Occurrence and the Trigger of Coverage

By Jean-François Lamoureux, from our Insurance Law Practice Group

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.

July 3, 2020 — 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).

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SNC-Lavalin inc. c. Deguise: Application of the “Prior Insurance and Non-Cumulation of Liability” Clause

By Nicolas Pfister, from our Insurance Law Practice Group

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.

July 3, 2020 — In the matter of SNC-Lavalin Inc. (Terratech Inc. et SNC-Lavalin Environnement Inc.) c. Deguise, the excess insurers Northbridge and AIG argued that the non-cumulation of liability clause in the insurance policy was applicable to the facts at issue. The Court of Appeal dismissed the argument and thus accepted the trial judge’s analysis. It should be noted that only the provisions of AIG’s policy were analysed since Northbridge’s policy was a follow form type policy and must therefore follow the provisions of AIG’s policy.

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SNC-Lavalin inc. c. Deguise: Insureds’ Omission to Declare All Facts Relevant to the Risk

By Chantal Noël, from our Insurance Law Practice Group

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.

July 3, 2020 — The “pyrrhotite case” led to numerous disputes in which the plaintiffs alleged the existence of a latent defect affecting the solidity of the foundations of their building due to the presence of pyrrhotite in the concrete.

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Video: OSHA’s Three-Phase Plan, COVID-19 Workplace Training, Virginia’s Seismic Shift – Employment Law This Week

As featured on #WorkforceWednesday: This week, we finally have some guidance from the Occupational Safety and Health Administration (OSHA), and big employment law changes in Virginia go into effect.

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Attorney General-led California Consumer Privacy Act enforcement begins July 1

July 1, 2020, marks six months since the California Consumer Privacy Act came into effect. And perhaps more importantly, it also marks the first day that the California Attorney General may file enforcement lawsuits against for-profit entities that run afoul of the landmark legislation. Read more…

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New explanations of the FAS Russia on certain aspects of advertising in the field of pharmaceuticals and healthcare

The latest Explanations of the FAS Russiaconcern the following:

1. REFERENCE TO LICENSE 

Specification of the information about the license is not required directly in the advertising of medical activities that are subject to licensing. Verification of the presence of relevant documents is carried out at the request of the advertising distributor in accordance with article 13 of the Law on advertising. The advertiser, in turn, shall provide reports, including information about the availability of a license, mandatory certification and state registration.

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Estates, Wills and Trusts: RSS Welcomes Notary Myriam Léger

June 29, 2020 — RSS is pleased to welcome a new member in our Estates, Wills and Trusts Practice Group. Myriam Léger became a notary in 2016. Prior to joining RSS, she was practising in her own firm.

“Myriam’s profile is ideally suited to our team”, says her colleague William Dion-Bernard, also a notary. “She has accumulated a most diversified experience that fits perfectly with our practice.”

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Surviving Hurricane David

Tommy Douglas, the great Canadian social democrat, once said “Every worker deserves a vacation.”  By “worker”, I don’t think Douglas meant to include summer students. But my friend (Big H on Instagram, Biggie in this story)  and I took his words to heart.  In the summer of 1979, for reasons that I still can’t fully explain, Biggie and I decided that we’d celebrate the end of our summer work terms and treat ourselves to a nice little trip.  I for one, needed the break.  I worked that summer in a biology lab at the University of Waterloo.  My duties included  “harvesting” sperm cells from semen collected from  mice, fish and roosters.   The unofficial job title of  “Rooster Booster” was not one I planned to feature on a resume. Calling it quits a week early was an easy decision to make.  As for our destination, Biggie and I settled on The Bahamas.  Lying on a beach sounded like the perfect way to relax and recharge.  Plus Bahamian vacation packages were ridiculously cheap.  It didn’t register with our youthful brains that the cheap prices might have something to do with the fact that the trip was planned for the last week of August, the unofficial start of hurricane season.  If anything, the prices served as an inducement to extend the trip from one week to two.  That way, we would miss Frosh Week in the first week of September.  As it turned out, two weeks was twice the time we needed to spend in The Bahamas.

The following chronology describes our adventure.  All references to distance and speed are in imperial units except where they’re in metric.

Saturday, August 25, – ARRIVAL – We arrived in Freeport, on the island of Grand Bahama.  Freeport was about 90 miles off the coast of Florida.  Because beachfront properties were expensive, we booked a hotel closer to town, but only a short drive from Xanadu beach.  The resort at Xanadu beach had once been owned by Howard Hughes.  Hughes had lived in the lavish penthouse suite of the hotel until he died in 1976.  Our accommodations were a tad more modest.  Our hotel,  located in the middle of what seemed to be a swamp, was a basic two storey stucco walkup with an exterior staircase.  The good news was that, like most of the other local hotels, it was chock full of university and college students.  Like us, they were eager for some sun, sand and secular fellowship.  We dumped our luggage in our room and checked out the lobby bar.  At that very moment, unknown to us, a  tropical depression was forming near the Cape Verde Islands thousands of miles away off the west coast of Africa.

Sunday, August 26 to Saturday, September 1 – PARTY – During our first week in Freeport, we did everything there was to do. At least 5 or 6  times.  Casino. Beach. Bars. Nightclubs. Rinse (shower) and repeat.  We changed our credo  from “relax and recharge” to “all party all the time’.  We partied to Michael Jackson’s new Off the Wall album.  We partied on some guy’s catamaran.  We partied with students from Concordia, Yale, and Southern Methodist University.  We partied with women from Prince Edward Island, who to this day, are among the wildest partiers I’ve ever met.  By the end of the week, Biggie and I were partied out.  We were physically and financially drained and looking forward to going home.  Except, we had another week left in Freeport. We watched with dismay and envy as our friends from Quebec, Connecticut and Texas left for the airport.  Everyone left, except for us.  Even the guy who had tried to sell me his watch to raise the money to leave, left.  I checked my remaining traveler’s cheques and winced. During our week of partying, the tropical depression started a party of its own and had become a storm named David.  David intensified into a hurricane on August 27 and rapidly moved westward toward the island of Dominica in the Caribbean.

Sunday, September 2 –  WARNING  – We first got wind (pardon the pun) of the potential for weather to disrupt our vacation at the start of our second week.  Biggie and I were sitting in the small hotel lobby playing backgammon with some local men.  The lobby always seemed to be full of local men gambling on backgammon and trying to pick up the female tourists.  The women from PEI spent a lot of time in the lobby.  Biggie and I nursed our beers and played for a quarter a game.  The Miami Dolphin’s NFL game was on tv.  The game was interrupted by a special news bulletin.  A news bulletin in the 70s was similar to today’s  emergency alerts, but if you weren’t watching tv, you were in trouble.  The bulletin gave notice of a powerful tropical storm called David over the Dominican Republic which was headed towards Miami.  A weather map (un-embellished by Sharpie) charted the storm’s progress and showed that it could possibly veer east towards the Bahamas. Biggie and I were intrigued, but not worried.  With a name like “David”, how bad could this storm get?  It seemed like such a benign name for a hurricane.  We’d be more worried if they called it Demento or Destructo.  Or even Dennis.  It just seemed like it would rain a lot. That meant we’d probably miss a day at the beach. 

Monday, September 3  (Labour Day- likely Tommy Douglas’s  favourite holiday). PREPARATION – Our blue party skies darkened. So did our moods.  Freeport transformed into a hive of daytime activity.  Bahamians bustled about, boarding up stores, restaurants and bars with sheets of plywood.  People lined up at the Piggly Wiggly to buy food and emergency supplies.  Being men of science, which by rights included  the meteorological sciences, Biggie and I prepared in our own scientific way.  The English say, “If you fail to prepare, you prepare to fail.” And for us, failure was not an option.  We had a three part plan.  First, we stocked up on essential provisions – beer, dark rum, fried egg sandwiches from Burger King and potato chips.  I added a couple of joints that I had been given by students from Maryland in gratitude for teaching them a few words in French.  I told them that all Canadians were bilingual.  After that, every time I saw them, they would smile broadly and shout, “J’ai d’autre chats a fouetter!” (I have other cats to whip) a phrase I learned in Ms. Rennie’s grade 13 French class.  Second, we built a shelter to ride out the storm.  Our room was on the second floor of the building, facing the road.  The front window exposed us to the elements.  Biggie put his big engineering brain to work.  He figured that if we were going to survive the worst of the storm,  we’d need to build a lean-to for shelter, in case the storm crashed through the window. We had heard that David had developed into a category 5 hurricane with maximum sustained winds of 280 kph.  That kind of power would easily breach the single pane of glass.  We’d likely be killed within minutes by flying debris or we’d drown in the rising water.  Biggie was a good swimmer, but he couldn’t save both of us. We removed the mattresses from the beds.  But instead of leaning them against the wall opposite the window, we angled  the top of the mattresses against the window.  That way, we could better watch the storm and gauge when if was time to adjust the position of the lean-to.  Third and last, we readied our hotel room for a potential disaster. We removed the lamps and ashtrays  from the bedside tables in the event that the wind tossed these items around.  To us, these preparations made perfect sense.  Later that afternoon, the lights in our room flickered and then went out.  Hurricane David had knocked on the door.  We grabbed our provisions, wrapped ourselves in the thin hotel blankets and hunkered down under the lean-to.

Monday, September 3 to Tuesday September 4 – DEVASTATION – Instead of being back in uni with the rest of our classmates, Biggie and I were huddled together in the dark, hiding under the soiled mattresses of a low rent hotel in the middle of a swamp on an island in the Atlantic.  The scene had all the makings of a John Grisham novel.  We had carefully rationed our provisions in case we ending up being trapped in the room for the rest of the week.  For the next several hours, we sat in awed silence, gasping  between sips, bites and puffs.  We watched as the skies dramatically shifted colour from pastel grey to an incredible indigo so intense, that it was almost black.   Within an hour, day had become night.  We expected thunder and lightning, but instead got wind and rain.  And lots of it.  Torrents of rain fell, as if the wind had picked up the ocean and dumped it on Freeport. I half expected to see boats from the marina.  The winds were a marvel.  They whipped the palm trees which lined the road into a frenzy.  It was like watching windshield wipers set on rapid. This wild scene played out all day Tuesday and into the night.  As awesome as this hurricane was, it was our good fortune that by the time David reached The Bahamas, he had weakened from a Cat 5  to a Cat 2 storm with top winds of “only” 130 kph. But witnessing David’s own style of partying was a sight to behold. 

Wednesday, September 5 –  AFTERMATH – By early Wednesday morning, the worst had passed.  Remarkably, we were still alive.  And still awake.  We gave credit where it belonged.  The lean-to had saved us.  At least in theory.  Biggie and I were groggy, but we stayed under our shelter until we figured it was safe to put the mattresses back on the beds and go to sleep. We had spent the better part of 36 hours entranced by what we thought might be the end of the world.  We had run out of superlatives for what we had witnessed. We had also run out of food.  We woke up hungry.   We had finished the fried egg sandwiches the night before.  We had smoked the joints and we drank half the bottle of rum.  The only food left was the potato chips, but they were so dry and salty, they literally scratched our throats.  Our throats were dry for other reasons as well.  We hadn’t bought any water (bottled water was not a thing in the 70s) and, because the power was out, there was no running water in the room.  We  headed down to the lobby only to find that the kitchen was closed.  The hotel grounds were a shambles. Electrical and telephone lines were down near the entrance.  The pool was full of leaves, dirt and garbage.  The hotel staff were too busy cleaning up to pay us any attention.  Biggie and I walked towards town to see if anything was open.  About half a mile down the road, we came across a little diner where we could see that people had already gathered.  Most were Bahamian. They were laughing and talking about the storm. Music played on the jukebox.  A couple even danced in the narrow aisles of the diner.  Geez, I thought.  What is wrong with these people?  Don’t they realize how close to death they were last night?  One woman was already wearing a t-shirt that read  “I survived Hurricane David”.  It had be homemade, but I wanted one.  When I asked her where she got hers, she just laughed and said, “That’s my little secret.”

Thursday, September 6 – RECOVERY – Hurricane David had wreaked havoc on the Dominican Republic, but had mostly spared The Bahamas. It had also wreaked havoc on the second week of our vacation.  Happily, the promise of redemption arrived with the glow of the morning sun.  The sun returned with a vengeance and was reflected a thousand times in the puddles of water that David had left like a disco ball.  Shopkeepers began to remove the plywood from storefronts and restaurants.  Biggie and I ventured away from the hotel to inspect what was left of our vacation.  The bus to the beach wasn’t running, so we walked the two and a half miles in searing heat.  The road was deserted.  Not surprisingly, so was the beach.  The area where we had played beach volleyball only a few days earlier was now strewn with seaweed, and jellyfish.  Uprooted trees formed bridges over little streams that trickled their way back to the ocean from pools formed in the sand.  The breakwater that had protected the swimming area at Xanadu had washed away and huge waves pounded against the shore, bringing in even more debris.  The only available shade was the bar at the swanky Xanadu resort, but that place was occupied by a dozen or so drunken Australian sailors.  We swerved the Aussies and headed back towards our hotel.  On the way, we passed some Freeport teenagers playing basketball on an outdoor court.  They were laughing and trash-talking as they dribbled around trash.  For them, like the folks in the diner, David was already in the rear view mirror. David had run riot over Freeport, but the people who lived there had been equal to the challenge. Biggie and I were impressed by their resilience. 

Friday, September 7 –  DEPARTURE – We had reached the end of Biggie’s and Blair’s Excellent Summer Adventure. While we weren’t heading back “relaxed and recharged”, we hadn’t regretted taking Tommy Douglas’s advice for a minute.  In the span of two weeks, we’d had two very different experiences, both of which were  memorable for very different reasons. The second week was not what anyone would call a break, but it was my favourite part of the trip.  41 years later, I can vividly recall being caught in the middle of a hurricane.   Biggie and I came, we saw and we survived Hurricane David.  We just didn’t get the secret t-shirt to prove it.  We’d like to think that our survival was  due to our superior scientific emergency planning skills.  But, it was mainly due to luck and fact that we didn’t know any better.  For us, sitting under a makeshift lean-to watching a hurricane was a great way to cap off the summer.

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NLRB Restores Employer Rights to Discipline Newly-Unionized Employees Without Bargaining

On June 23, 2020, the National Labor Relations Board (“NLRB” or “Board”) overruled a 2016 decision that required employers to bargain over the discipline of employees during negotiations for a first contract.  The Board noted that the decision it issued Tuesday in 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (“Care One”), reinstated “the law as it existed for 80 years,” under which the National Labor Relations Act (“Act”) did not impose a “predisciplinary bargaining obligation” on employers with newly-unionized workforces.  The Board’s restoration of what had been well-settled law under the Act reinstates employers’ ability to apply disciplinary policies in accordance with past practice while negotiating a first collective bargaining agreement (“CBA”).

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