Halifax (Regional Municipality) v. Zurich Insurance Co. et al., (2015) 368 N.S.R.(2d) 268 (SC)

• Judge: Robertson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 29, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 368 N.S.R.(2d) 268 (SC);2015 NSSC 373

Halifax v. Zurich Ins. (2015), 368 N.S.R.(2d) 268 (SC);

    1160 A.P.R. 268

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.058

Halifax Regional Municipality (applicant) v. Zurich Insurance Company Ltd., Royal & Sun Alliance Insurance Company of Canada and Arch Insurance Canada Ltd. (respondents)

(Hfx. No. 435745; 2015 NSSC 373)

Indexed As: Halifax (Regional Municipality) v. Zurich Insurance Co. et al.

Nova Scotia Supreme Court

Robertson, J.

December 30, 2015.

Summary:

The applicant Halifax Regional Municipality sought a declaration that the respondents were obligated to indemnify the applicant pursuant to a policy of insurance for the costs associated with remediating a release of approximately 200,000 liters of diesel fuel which appeared to have occurred over the course of several months at the Metro Transit bus depot in the Burnside Industrial Park in Dartmouth. The respondents denied any liability to the applicant on the basis that the loss was not covered under the policy between the parties. The respondents made a motion to convert the application to an action pursuant to rule 6.

The Nova Scotia Supreme Court dismissed the motion.

Practice - Topic 73

Actions - Commencement of - Choice of method of commencement of proceedings - Action v. application - [See Practice - Topic 2493 ].

Practice - Topic 2493

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Conversion to or from formal action - The applicant Halifax Regional Municipality sought a declaration that the respondents were obligated to indemnify the applicant pursuant to a policy of insurance for the costs associated with remediating a release of approximately 200,000 liters of diesel fuel which appeared to have occurred over the course of several months at the Metro Transit bus depot in the Burnside Industrial Park in Dartmouth - The respondents denied any liability to the applicant on the basis that the loss was not covered under the policy between the parties - The respondents took the position that the release of fuel was not "sudden and accidental" and therefore fell outside the scope of coverage under the policy - The respondents made a motion to convert the application to an action pursuant to rule 6 - The Nova Scotia Supreme Court dismissed the motion - The issue to be resolved in this proceeding was the interpretation of defined contractual terms, relating to the meaning of the words "sudden and accidental" and whether coverage of the loss applied - At this juncture, the application route was the most appropriate and the presumptive one in accordance with the Civil Procedure Rules.

Practice - Topic 3082

Applications and motions - Applications - Disposition - Application to proceed as action - [See Practice - Topic 2493 ].

Cases Noticed:

Jeffrie v. Hendriksen et al. (2011), 306 N.S.R.(2d) 79; 968 A.P.R. 79; 2011 NSSC 292, refd to. [para. 10].

Guest v. MacDonald (2012), 325 N.S.R.(2d) 226; 1031 A.P.R. 226; 2012 NSSC 452, refd to. [para. 11].

Milburn et al. v. GrowthWorks Canadian Fund Ltd. et al. (2012), 314 N.S.R.(2d) 268; 994 A.P.R. 268; 2012 NSSC 106, dist. [para. 11].

Monk v. Wallace et al. (2009), 291 N.S.R.(2d) 104; 922 A.P.R. 104; 2009 NSSC 425, refd to. [para. 11].

Murphy Oil Co. Ltd. v. Continental Insurance Co. (1981) 33 O.R.(2d) 853; 1981 CarswellOnt 1238 (Co. Ct.), refd to. [para. 11].

Roué v. Nova Scotia et al. (2013), 327 N.S.R.(2d) 346; 1036 A.P.R. 346; 2013 NSSC 45, affd. (2013), 333 N.S.R.(2d) 327; 1055 A.P.R. 327; 2013 NSCA 94, refd to. [para. 11].

Hatheway (Dr. Robert) Professional Corp. et al. v. Smith et al. (2015), 356 N.S.R.(2d) 308; 1126 A.P.R. 308; 2015 NSSC 68, refd to. [para. 11].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 6.02 [para. 8].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Martin C. Ward, Q.C., and Guy Harfouche, for the applicant;

D. Geoffrey Machum, Q.C., and Christopher W. Madill, for the respondents.

This motion was heard on October 29, 2015, in Halifax, N.S., before Robertson, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 30, 2015.