Mr. Justice David M. Brown hasn’t been a judge for very long (he was appointed to the Superior Court on September 14, 2006). Maybe he hasn’t lost his sense of humour. Or maybe the opposite is true: the job is already getting to him and he is desperately searching for something to relieve the tedium.<\/p>\n
Whatever the explanation, we were struck by the opening words of his June 29, 2007 decision in Caneast Foods Limited v. Lombard General Insurance Company of Canada<\/em><\/strong><\/a>:<\/p>\n Pickle production was at its peak at the plaintiff’s processing plant when the power petered out in the great blackout of August 14, 2003. Tailed off a bit there, towards the end, but not bad. Almost Denning-esque\u2026<\/p>\n The actual case involved an insurance coverage dispute under a property policy. Caneast Foods, the insured, is a pickle manufacturer. It experienced a shutdown of its plant for 4-5 days due to the “great blackout” which most of us in eastern Ontario remember well. Much of\u00a0Caneast’s inventory spoiled. It incurred clean-up costs and loss of profits, for all of which it made a claim to its insurer, Lombard.<\/p>\n Lombard denied the claim based on an exclusion in its policy for loss or damage caused directly or indirectly by “mechanical or electrical breakdown or derangement in or on the premises”.<\/p>\n (Justice Brown was particularly well-suited to decide this case. When he was in practice, he was listed for a number of years in LEXPERT’s “Leading 500 Lawyers in Canada”, as an expert in electrical energy.)<\/p>\n His Honour considered two previous decisions in similar cases, involving insurance disputes arising out of “the great blackout”. These were Fresh Taste Produce Ltd. v. Sovereign General Insurance Co<\/em>.<\/a> and 942325 Ontario Inc. v. Commonwealth Insurance Company<\/em><\/a>. He concluded that those cases had turned on a “change of temperature” exclusion and that the Court of Appeal “has not yet opined on the interpretation of the language of the Mechanical Breakdown Exclusion in the circumstances of the Blackout”. He proceeded to undertake his own analysis.<\/p>\n Justice Brown felt that it was inapposite to describe what happened to the insured here as a “breakdown”. According to his reasons, he asked counsel whether a television set that went off during a blackout and then came back on when power was restored could be said to have “broken down”. Counsel for Lombard said that yes, he would consider that to have been a twenty-minute “breakdown” of the television. However, Justice Brown did not agree. In his view, a “breakdown” ordinarily denotes some problem internal to the machinery, not an external condition such as loss of electrical power. He referred to some caselaw that supported that interpretation.<\/p>\n Likewise, he considered that this was not a “derangement”. He thought that this term too referred to “some problem or defect internal to a piece of equipment”.<\/p>\n Accordingly, His Honour ruled that the exclusion in Lombard’s policy did not apply and the claim was covered.<\/p>\n","protected":false},"excerpt":{"rendered":" Mr. Justice David M. Brown hasn’t been a judge for very long (he was appointed to the Superior Court on September 14, 2006). Maybe he hasn’t lost his sense of humour. Or maybe the opposite is true: the job is … Continue reading
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