Boliden Ltd. v. Liberty Mutual Insurance Co., 2008 ONCA 288

JudgeCronk, Blair and LaForme, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateNovember 29, 2007
JurisdictionOntario
Citations2008 ONCA 288;(2008), 235 O.A.C. 126 (CA)

Boliden Ltd. v. Liberty Mutual (2008), 235 O.A.C. 126 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. AP.074

Boliden Limited (plaintiff/respondent) v. Liberty Mutual Insurance Company (defendant/appellant)

(C47064; 2008 ONCA 288)

Indexed As: Boliden Ltd. v. Liberty Mutual Insurance Co.

Ontario Court of Appeal

Cronk, Blair and LaForme, JJ.A.

April 17, 2008.

Summary:

The plaintiff corporation's shareholders brought several class actions against its directors and officers for prospectus misrepresentation when the corporation's share value dropped following an environmental disaster at a mine owned by a Spanish subsidiary of the corporation. The actions were settled. The plaintiff indemnified its directors and officers for the defence costs. The plaintiff then sued its directors' and officers' liability insurer for the applicable proceeds. The insurer defended by invoking a pollution exclusion clause. The plaintiff applied for a summary judgment.

The Ontario Superior Court, in a decision reported [2007] O.T.C. 758, allowed the application in part. The plaintiff was entitled to 80% of the claimed proceeds by virtue of an allocation endorsement triggered when there were both partly covered and partly non-covered losses. The insurer appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 6833

Liability insurance - Director's indemnification insurance - Defence costs - The plaintiff corporation's shareholders brought several class actions against its directors and officers for prospectus misrepresentation when the corporation's share value dropped following an environmental disaster at a mine owned by a Spanish subsidiary of the corporation: a zinc tailings dam had burst and the neighbouring lands were contaminated - The statement of claim alleged liability for an improperly constructed dam and for the actual seepage of pollutants - The actions were settled - The plaintiff indemnified its directors and officers for the defence costs and then looked to its directors' and officers' liability insurer for the applicable proceeds - The insurer invoked a pollution exclusion clause and denied coverage - A summary judgment judge ruled that the losses resulting from the improperly constructed dam were not caught by the pollution exclusion but that the losses caused by the actual seepage of pollutants were - An allocation endorsement, providing for proceeds for 80% of the defence costs in respect of partly covered and partly not covered losses, was triggered, and judgment for 80% of the defence costs was issued - The Ontario Court of Appeal upheld the decision - See paragraphs 1 to 45.

Words and Phrases

Pollution loss - The Ontario Court of Appeal discussed the meaning of the expression "pollution loss" found in an exclusion clause contained in a directors' and officers' liability policy - See paragraphs 24 to 39.

Cases Noticed:

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 30].

Derksen et al. v. 539938 Ontario Ltd. et al., [2001] 3 S.C.R. 398; 277 N.R. 82; 153 O.A.C. 310; 2001 SCC 72, refd to. [para. 30].

Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 166 O.A.C. 233; 62 O.R.(3d) 447 (C.A.), not folld. [para. 31].

Counsel:

Gary H. Luftspring, for the appellant;

David Kent and Lisa Brost, for the respondent.

This appeal was heard on November 29, 2007, by Cronk, Blair and LaForme, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by LaForme, J.A., and released on April 17, 2008.

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2 practice notes
  • Table of cases
    • Canada
    • Irwin Books Environmental Law. Fifth Edition
    • June 22, 2019
    ...(CQ) .................................................................................. 108 Boliden Ltd v Liberty Mutual Insurance Co (2008), 235 OAC 126, [2008] OJ No 1438, 2008 ONCA 288.......................................................... 389 Bow Valley Naturalists Society v Canada, ......
  • Aviva Insurance Co. of Canada v. Real Estate Errors and Omissions Insurance Corp., [2009] B.C.T.C. Uned. 1411
    • Canada
    • Supreme Court of British Columbia (Canada)
    • July 6, 2009
    ...& Partners Ltd. v. Simcoe & Erie General Insurance Co. , [1993] S.C.R. 252; Boliden Ltd. v. Liberty Mutual Insurance Co. , 2008 ONCA 288, [2008] O.J. No. 1438; MWH International, Inc. v. Lumbermens Mutual Casualty Company , 2007 BCCA 164, [2007] B.C.J. No. 559). However, these decis......
1 cases
1 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Environmental Law. Fifth Edition
    • June 22, 2019
    ...(CQ) .................................................................................. 108 Boliden Ltd v Liberty Mutual Insurance Co (2008), 235 OAC 126, [2008] OJ No 1438, 2008 ONCA 288.......................................................... 389 Bow Valley Naturalists Society v Canada, ......

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