The Crowd

A recent Nova Scotia case caught the attention of the insurance community following a decision of the Nova Scotia Supreme Court in Garden View Restaurant v. The Portage La Prairie Mutual Insurance Co.

The circumstances of the case are not particularly novel. An oil spill occurred at the Plaintiff’s property after a length of copper pipe was stolen from the heating oil system by vandals.

The Defendant insurer denied coverage for remediation of the land under the building affected by the escaped oil. The Plaintiff based its case on the doctrine of imminent peril, and produced an expert report indicating that the building would have been unusable immediately after the spill, and argued that the costs of preventing further damage were recoverable. Ultimately, the trial judge found that the doctrine of imminent peril did not apply:

“The doctrine is not triggered by a 51% chance that an insured risk might cause damage. It requires inevitability.”

She further went on to consider whether there was damage to insured property that would invoke coverage. The conclusion? The definition of “building” in the policy did not include soil, the pollution exclusion applied, and the damage to various areas such as the basement floor, deck, and landscaping were occasioned by the Plaintiff’s intentional acts directed at uninsured areas and therefore not covered.

Perhaps none of this comes as much of a surprise if your daily grind involves oil spill litigation. Cases involving all sorts of policy wordings are regularly interpreted by the Courts (including this very recent one, which distinguishes Garden View).

However, the interesting aspect that has arisen is that the owner of the Plaintiff corporation has subsequently started a crowd funding campaign to assist with the legal expenses associated with an appeal. This taps into a trend most often seen until now, in Canada, in relation to the intersection of criminal law and social justice, such as the case of Rania El-Alloul. In civil actions, this is a rarity. It remains to be seen how the Plaintiff’s efforts to raise funds “from the cloud” will evolve but as of publication, $2,138 of the $30,000 goal had been raised in one month.

Local media have picked up on the story. It is worth following.