Insurance - Who Pays?

James Bay Neighbourhood Association

An on-going feature on land use & planning - to alert, inform, and prompt community action - and to celebrate success!

Presentations at the March 2013 meeting of the James Bay Neighbourhood Association (JBNA) included a development proposal, a covenant revision and an American legal precedent involving an Alaskan village, climate change and insurance.

21-25 Ontario Street:

Conrad Nyren, Magellan Holdings Ltd., and Karen Hillel, Hillel Architecture Inc., presented a revised proposal for the 21-25 Ontario Street properties. The initial proposal failed during the public hearing process. The new submission replaces the south building with 2 duplexes which have been moved 2 meters to the north to reduce massing, with building height reduced by 2 feet. Sunken lower levels will provide more privacy for Simcoe neighbours to the south and new fencing has been agreed upon by neighbouring properties. The development is designed to complement the neighbourhouring Breakwater complex at Dallas and Ontario by extending the streetscape along Ontario Street. The design features exposed concrete, smooth faced stucco panels, weathered cedar siding, and glazed garage doors.

The Superior Restaurant, 106 Superior:

Lisa Boehme, Co-owner wants to change the existing operating hours covenant to The Superior (Tuesday to Saturday 11am to 10:30pm). The covenant was part of the 2005 rezoning agreement.

The proposal is for as Espresso stand to the west of the restaurant building (St Lawrence-Superior-Kingston corner) with operating hours from 7:30am to 10:30pm, seven (7) days a week. Jackson's ice cream may also have a stand in the area.

Although there was a general welcoming of the proposal for an espresso/ice-cream service, there were concerns raised over a general application of operating hours to the two patio areas and the restaurant. The Superior has no customer parking and late night hours are of concern to nearby residents. Details need to be worked through regarding which part of the property and which hours are being proposed for the varying operations. The property has been listed for sale and any covenant would apply to a future owner.

Parts of the proposal varied from the description in the notification to residents. The precise detail and wording of the covenant has not been written.

Pollution: Lawsuits & the Insurance Industry

Matthew Joseph, UVIC Law Speakers Bureau, discussed the obligations of insurance companies to represent clients being sued for causing pollution damage. The case he discussed started with a lawsuit about global warming and the effects of climate change on a small island community on the northwest coast of Alaska, namely Kivalina. Kivalina began to disappear because of less ice and more severe ocean storms. The community, with the assistance of environmental organizations, sought compensation for community relocation at an estimated cost of up to $400 million. In 2008, Kivalina brought a suit under the Tort of Nuisance against 24 major oil, coal and power companies.

The environmental law case: Kivalina alleged that the climate change was due, in part, to the release of green house gases by the 24 major corporations. The case was won and then lost in 2009. The appeal process and litigation continued for a considerable period. The weaknesses in Kivalina's case were proving that the companies in questions were responsible for the situation that created the change in climate experienced by Kivalina and the political questions which may be related to climate change that were beyond the purview of the court. Other climate change cases also failed as being "non-justiciable."

An Insurer's obligation to defend case: AES Corporation, a major American power company, was one of the 24 being sued. AES held an insurance policy with Steadfast Insurance. Although Steadfast covered the costs of the early stages of the Kivalina v AES suit, the company applied to the court for relief stating that it should not have to cover the defense costs of AES because the actions of AES in its business of producing power, and green house gases, was 'a regular expected, and known, by-product of power-production' operations. The insurance policy was to cover unforeseen "occurrences" such as "accidents."

The courts recognized that AES knowingly released emissions into the atmosphere as a regular part of its activities and any damages allegedly caused were "reasonably foreseeable." Hence, any damages that may have occurred were the natural and probable consequences of AES's intentional emissions."

The Court sided with Steadfast insurance, stating that even if Kivalina had been successful in proving its claim against AES, the insurance policy did not cover the AES actions and hence Steadfast would not have had a duty to defend AES in the suit.

Local Impact: Canada, Victoria, GVHA and Pollution

The AES-Steadfast decisions may or may not affect Canadian insurance company obligations to defend organizations which pollute in Canada. The applicability in other jurisdictions has not been widely tested.

In James Bay we experience local pollutants which are measurable and with known effects. The impacts of emissions (cruise-ship, float-plane or helicopter) are known, measurable, and "reasonably foreseeable" by those operators, and by their landlords, the City of Victoria and GVHA.Watch this space!

Pedestrians Lose Again:

On March 21, City Council members, excepting Councillor Isitt, voted to permit parking of large highway buses (Wilsons, CVS and Hippo bus) along Belleville and Government Streets for a permit tenure of 2-years.  When evaluating proposals, the small electric bus proposal was not considered for several reasons. Rationale provided by staff included the safety of the passengers in the light electric buses as these vehicles were not intended to share road space with large highway buses. The decision seems at odds with the pedestrian priority assigned to Government Street; additionally, the pedicab and horse & carriage operations, which share the same streets as large buses, have been part of old town and James Bay tourism for decades. None of the three companies granted permits met the City objective of being more green, with quieter low emissions vehicles.

Speeding and Speed:

A proposal to lower the provincial default speed to 40 km/h from 50 km/h is under consideration. Residents interested in learning about the proposal and providing input to the discussions are invited to: Public Forum on Municipal Speed Limits, Wednesday, 7:30 pm, March 27^th, SJ Willis School, 923 Topaz Avenue.

Next Month - Annual General Meeting

Join your neighbours at the April 10^th general meeting, 7 pm, New Horizons. Curtis Grad, CEO, Greater Victoria Harbour Authority will be the main speaker. The general meeting will be preceded by the JBNA Annual General Meeting at 6:30 pm for voting members.

Heads Up for May

JBNA All-Candidates Forum - Provincial Election, May 1^st, 2013, 7 pm New Horizons, 234 Menzies Street. Declared candidates to date, Carole James & Jane Sterk, have confirmed attendance.

May 8^th JBNA general meeting, Featured speaker - Jack Lohman, CEO, Royal BC Museum.