Note: The following cases were remanded to their originating court of appeal for a disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37

36660  Allianz Global Risks US Insurance Company/Compagnie d'assurance Allianz risques mondiaux E.-U., Zurich Insurance Company Ltd./Zurich compagnie d'assurances SA, Temple Insurance Company/La compagnie d’assurance Temple, GCAN Insurance Company v. Acciona Infrastructure Canada Inc., Lark Projects (2004) Ltd., collectively doing business as Acciona Lark Joint Venture

(B.C.)

Insurance – Property insurance – Liability insurance

The respondents contracted to design and build the new Patient Care Centre of the Royal Jubilee Hospital in Victoria B.C. During the construction process, some of the concrete slab floors began over-deflecting, resulting in concave recessions in the centre of the slabs. The respondents corrected the problem and made a claim of approximately $15 million under their Course of Construction Insurance Policy with the applicant insurers. The policy provided coverage for “ALL RISKS of direct physical loss of or damage to the property insured…. except …all costs rendered necessary by defects of material workmanship, design, plan, or specification….” The policy specified that if damage occurred to a portion of the property containing the defect, “the cost of replacement or rectification which is hereby excluded is that cost which would have been incurred if replacement or rectification of the Insured Property had been put in hand immediately prior to the said damage”.

The Supreme Court of British Columbia determined that the concrete slabs were damaged by a subcontractor’s defective workmanship in building the concrete formworks and placing and finishing the slabs. The Court allowed the respondents’ action in part, ordering the applicants to indemnify them in the amount of approximately $8.5 million. The applicants appealed on the basis that none of the claim was covered and the respondents cross-appealed for recovery of the entire claim. The appellate court dismissed both the appeal and cross-appeal. The applicants apply for leave to appeal that decision and the respondents conditionally apply for leave to cross-appeal.

37045  Celia Sankar v. Bell Mobility Inc.

(Ont.)

Contracts — Breach of contract — Prepaid wireless phone card accounts

This proposed appeal is about prepaid wireless phone card accounts. It concerns the fate of the balance remaining in a Bell Mobility Inc. subscriber’s account when she fails to “top up” the account before the end of its “active period”. Bell’s prepaid “top-ups” allow customers to add credit to their accounts and extend their active periods that give them access to Bell’s wireless network. Bell’s practice, during the period at issue, was to claim unused funds the day after the end of the active period. For example, if the active period ended on June 30, Bell’s practice was to claim the unused funds on July 1, if the account had not been topped-up in order to extend the active period.

The applicant, Ms. Sankar’s certified class action alleged that Bell collected those funds improperly. She claimed the contract provided that Bell had to wait until the second day after the end of the active period, not the first day.

The motion judge ruled that Bell did not breach its contract and granted summary judgment answering the common issues in Bell’s favour and dismissing the class action. The Court of Appeal dismissed the appeal.

37039  Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc.

(Ont.)

Contracts – Commercial lease – Landlord and Tenant

This appeal concerns the interpretation of insurance and cross-indemnity covenants contained in a commercial lease. After a fire destroyed the leased premises, causing significant damage to the respondent, Landlord’s building and the applicant, Tenant’s property and business, the Tenant brought a claim against the Landlord to recover its losses.

The Tenant successfully obtained summary judgment against the Landlord. The motion judge found the Landlord assumed the responsibility of indemnifying the Tenant and was therefore liable for the losses claimed by the Tenant. The Court of Appeal allowed the appeal and set aside the summary judgment and dismissed the Tenant’s action against the Landlord.