2004 BCSC 1195 Westside Transport Inc. v. Continental Insurance

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Counsel for Plaintiff	D. Yule, Q.C.
Counsel for Defendant	D. Shugarman G. MacLellan
Date and Place of Hearing:	July 8 and 9, 2004
	Vancouver, B.C.

[1] The parties have applied by way of special case pursuant to Rule 33, for the determination of three questions relating to insurance coverage for the costs of recovering and disposing of a cargo of 8 large rolls of paper which were deposited on lands adjacent to Moyie Lake and into the waters of the lake, as a result of a motor vehicle accident which occurred on September 20, 2000. An agreed statement of facts has been filed, which consists of 38 paragraphs and numerous documents. I would summarize the essential facts as follows.

[2] The plaintiff Westside Transport Inc. ("Westside") is a company that carries on the business of a transport company and, among other things, hauls the goods of others by truck for compensation.

[3] On or about September 19, 2000, at San Leandro, California, a truck and trailer owned by Westside and driven by a Westside employee picked up a load of paper rolls from Georgia Pacific Gypsum. The load consisted of 8 large paper rolls, which weighed a total of 48,000 pounds. The rolls were to be delivered to a consignee in Edmonton, Alberta. The cargo was insured by the defendant The Continental Insurance Company ("Continental") in a policy of insurance between Westside and Continental.

[4] Westside's tractor and trailer unit was insured by the Insurance Corporation of British Columbia ("ICBC").

[5] On September 20, 2000, while enroute to Edmonton, the tractor trailer unit was travelling eastbound on Highway No. 3 adjacent to Moyie Lake, B.C., when it left the road and overturned. The 8 large rolls of paper broke loose from the trailer, some of them rolled down an embankment, and some of the rolls went into Moyie Lake. There was also paper debris scattered down the hillside, and on or near railway tracks owned by the Canadian National Railway.

[6] On September 21, 2000, Westside reported the accident to Continental and to ICBC. Continental appointed Brouwer Claims Canada & Co. Ltd. (Brouwer Claims") as the claim adjuster to investigate the loss, while ICBC assigned one of its claims examiners to investigate the loss.

[7] The cargo insurance policy issued by Continental contained a debris removal clause which read as follows:

"This policy also covers

(a) Debris removal expense necessarily incurred by the insured, including clean up, fire department charges, pollution or environmental clean up, occasioned by loss or damage not otherwise excluded hereunder, for no greater than the amounts cited in the schedule."

[8] The applicable amount set out in the schedule was $10,000. The coverage provided under the debris removal clause was subject to another provision of the cargo policy, namely:

"Other Insurance

If at the time of loss or damage there is available to a named or unnamed insured or any other interested party any other insurance which would apply in the absence of this insurance, this insurance shall apply only as excess insurance over such other insurance."

[9] Between September 21 and September 25, 2000, Brouwer Claims informed Westside that:

(a)Continental would not be authorizing any recovery of the paper rolls as they would have no salvage value; and

(b)Westside should not authorize recovery of the paper rolls whatsoever, without first discussing the subject with Brouwer Claims.

[10] On September 26, 2000, Alan Cole of Brouwer Claims faxed a letter to Westside stating among other things, as follows:

"We are waiting for Environment Canada or the police to issue a "demand" against your company for cleaning up the environment. If you receive any telephone calls, then ask that you be placed on notice officially by the government authority to effect the clean up and then advise us immediately."

[11] On September 27, 2000, Norm Felix, a material damage claims examiner with ICBC, faxed a letter to Westside stating that ICBC would not cover the costs for cleanup under the ICBC policy. ICBC also advised Westside that ICBC's position was that the cargo was benign and inert, and that there was no impact to the environment resulting directly from the motor vehicle accident. Finally, in the said letter, ICBC advised Westside of its position that any potential risk of environmental damage (however slim) would only arise out of an unreasonable delay in recovering the paper rolls.

[12] On September 27, 2000, James Jensen, environmental protection officer, conducted a site inspection of the accident area.

[13] On September 28, 2000, Westside's insurance broker (Chris Clarke of B & W Insurance Agencies) informed both Mr. Felix (of ICBC) and Mr. Cole (of Brouwer Claims) that Westside had received a telephone call from Mr. Jensen of the Ministry of the Environment.

[14] On October 2, 2000, Mr. Felix faxed a letter to Jim Jensen of the Ministry of Environment, Lands and Parks, and attached a copy of the letter which he had sent to Westside on September 27, 2000.

[15] On October 3, 2000, Mr. Jensen faxed a letter to Westside in which he recited the facts of the accident and then stated in part as follows:

"Further to the requirements of the Waste Management Act, this is to confirm that the Ministry of Environment considers it to be necessary that Westside Transport Inc. take immediate steps to recover and clean up the paper product spilled in the subject accident. This is also to advise that if you fail to take action forthwith, the Regional Waste Manager is prepared to order Westside Transport pursuant to section 31, Pollution Prevention Order, of the Waste Management Act, to take all the necessary measures to clean up the site in order to control and abate the pollution of the site."

[16] Westside informed Mr. Cole (of Brouwer Claims) and Mr. Felix (of ICBC) of the letter it had received from Mr. Jensen, and (through Mr. Clarke) faxed a copy of Mr. Jensen's letter to Mr. Felix on October 4, 2000.

[17] On October 4, 2000, Mr. Felix faxed a letter to Mr. Clarke and to Westside, in which he outlined ICBC's position. Mr. Felix' letter contained the following paragraph:

"A careful reading of the Ministry's letter confirms that it is the continued presence of the cargo that is of concern to them, and that the simple retrieval of the cargo will address their concerns. This is in keeping with the fact that B.C.'s Litter Act was repealed due to the broad scope of B.C.'s Waste Management Act. The letter also emphasizes the point communicated in my note of September 27, 2000 that the delay in retrieving the cargo is proving to be the main source of concern. I note that we are now two weeks past the accident date and apparently no arrangements have been made to retrieve the cargo. The length of this delay before the receipt of the Ministry's letter speaks volumes towards the benign nature of the product."

[18] By letter dated October 6, 2000, Rick Crozier, Regional Waste Manager, issued a pollution abatement order under s. 31 of the Waste Management Act requiring Westside to "recover and remove the paper debris from the spill area on the land and in and about Moyie Lake." The letter further indicated that issuance of the order did not preclude further enforcement action by the Ministry, including charges under the Waste Management Act. This letter included the following statements:

"... An inspection of the spill area and of Moyie Lake has revealed that the paper product has been littered throughout the area, that paper debris has been scattered along the lake shoreline and that paper rolls in Moyie Lake have drifted along the eastern shoreline and are breaking apart with the debris sinking to and smothering the littoral zone of the impacted lake area.

I am satisfied on reasonable and probable grounds that the paper debris is causing pollution by impairing the usefulness of the land and of the lake.

Therefore, pursuant to section 31 of the Waste Management Act, you are hereby ordered to recover and remove the paper debris from the spill area on the land and in and about Moyie Lake. Clean up is to be completed to the satisfaction of the Regional Waste Manager."

Westside immediately sent copies of Mr. Crozier's letter dated October 6, 2000, to Mr. Felix of ICBC and to Mr. Cole of Brouwer Claims.

[19] On or about October 6, 2000, Westside's insurance broker (Mr. Clarke) retained Airpac Diving Services Ltd. ("Airpac") to commence the clean up process and from its own funds B & W Insurance Agencies paid Airpac a deposit of $4,000. The estimated cost initially quoted by Airpac for removing the rolls of paper from the lake and depositing them on the lakeshore, was $6,938.

[20] Airpac worked towards recovery of the paper rolls from the lake on October 9, 10, 11 and 12, 2000, and then issued a bill to B & W Insurance Agencies for $6,938. plus GST, plus a charge of $419.52 for crane services. Airpac then stopped work.

[21] On October 20, 2000, Mr. Felix of ICBC faxed a letter to Mr. Clarke, in which he stated that ICBC would pay all costs relating to the recovery and cleanup of the paper debris, and would then bring action against Continental to recover those costs.

[22] On October 23, 2000, Airpac resumed work on the instructions of ICBC. Airpac worked on the recovery operation on October 23 – 28, October 30, November 1 and November 2, 2000. Airpac billed ICBC a total of $29,472.35, including GST, for this work.

[23] By letter dated November 2, 2000, Mr. Cole of Brouwer Claims informed Westside that Continental was prepared to pay for the removal of the paper rolls adjacent to the railway track and any rolls that did not enter Moyie Lake, to the limit of $10,000.

[24] I reproduce paras. 31 to 38 of the Special Case:

"31. The Continental claims examiner had not considered whether an environmental hazard had been created in the first five days following the accident. The examiner had not seen the site, nor had he sought advice on environmental impact."

"32. Continental and ICBC assumed that the longer the rolls of paper were left floating in Moyie Lake or exposed to the elements on the land, depending upon the time and weather, the more difficult, time consuming and expensive the clean up would be."

"33. Following the accident, Continental anticipated that if no one conducted a clean up, then either the environment ministry or the police would issue a demand against Westside requiring it to clean up the environment."

"34. Had James Jensen been at the scene of the accident on September 20, 2000 and observed the rolls of paper on the land and in the lake, he would have made a demand upon Westside similar to that made in his correspondence of October 3, 2000. He would have made the demand to clean up the paper product for two principal reasons."

"35. The first reason that the clean up was necessary was because Mr. Jensen believed the rolls of paper were an environmental hazard because the rolls would break apart and cause pollution of the lake, i.e. smother plant growth along the affected shoreline, as was the case when he actually attended the site."

"36. The second reason that the clean up was necessary was because Mr. Jensen considered that the rolls of paper created a physical hazard to the health of boaters operating on Moyie Lake, who might collide with the partially submerged rolls. Although Mr. Jensen did not have specific authority over navigational hazards, his mandate did include a responsibility to take action to address hazards posed to the public resulting from the location of the paper rolls after they came off the trailer."

"37. Apart from the issuance of the letters dated October 3 and October 6, 2000 to Westside, Mr. Jensen did not take any other step to warn or protect boaters on Moyie Lake. He did not issue any general Bulletin nor post Notices nor "flag" the floating rolls, nor attempt to close off the portion of Moyie Lake where the rolls were located."

"38. Mr. Jensen considers that the high cost of the actual clean up arose because of the delay in recovering or cleaning up the paper rolls which resulted in the necessity of using divers. Had the clean up been commenced immediately after the accident, Mr. Jensen believes that divers would not have been required and the rolls could have been pulled to the shore and lifted out of the water."

[25] The parties have agreed that the questions for determination are as follows:

(1) Does the liability coverage provided to Westside by ICBC pursuant to part 6 of the Regulations under the Insurance (Motor Vehicle) Act apply to the spilling of 8 rolls of paper near and into Moyie Lake ("the incident")?

(2) If so, when?

(3) Assuming that the debris removal clause contained in the Continental policy applies to the incident, is the coverage afforded by the debris removal clause "excess insurance" by virtue of:

(a) the "other insurance" clause contained in the general provisions of the Continental policy;

(b) S. 77 of the Regulations; or

[26] During the hearing, counsel agreed that s. 177 of the Insurance Act has no application.

THE FIRST ISSUE

[27] Part 6 of the Regulations includes s. 64, which reads as follows:

"64 Subject to section 67, the corporation shall indemnify an insured for liability imposed on the insured by law for injury or death of another or loss or damage to property of another that:

(a) arises out of the use or operation by the insured of a vehicle described in an owner's certificate, and

(b) occurs in Canada or the United States of America or on a vessel travelling between Canada and the United States of America."

[28] Of the elements essential to the application of s. 64, only two are in dispute. I would frame these issues as follows:

(a) Was liability imposed on Westside by law for the recovery of the rolls of paper from Moyie Lake and the lands adjacent to Moyie Lake, after the accident occurred?

(b) If so, did the presence of the rolls of paper in Moyie Lake and on land adjacent to Moyie Lake, cause "damage to property of another"?

[29] I take it as agreed that, by September 27, 2000, conditions were such that they justified James Jensen's demand by letter dated October 3, 2000 "... that Westside Transport Inc. take immediate steps to recover and clean up the paper product spilled in the subject accident." Westside does not contend that Mr. Jensen's demand, or the Regional Waste Manager's pollution abatement order of October 6, 2000 did not impose legal liability on Westside to recover the rolls of paper and paper debris. It is conceded that, by that time, the rolls of paper that had gone into Moyie Lake, were causing pollution of the lake.

[30] It was unclear to me as to whether or not Westside was also admitting that the rolls of paper and the paper debris that remained on the land were causing pollution of the land. But in any event, it is admitted that, when the Regional Waste Manager declared on October 6, 2000 that he was satisfied on reasonable and probable grounds that the paper debris was causing pollution of the lake and the land (by impairing their usefulness), and made the abatement order under s. 31 of the Waste Management Act, there was then liability imposed by law on Westside to recover the paper rolls and to clean up the paper debris, both in the lake and on the land.

[31] I think this concession was rightly made, because:

(a) S. 31 of the Waste Management Act empowers a manager, if satisfied on reasonable grounds that a substance is causing pollution, to order the person who caused the pollution, to abate the pollution and to carry out remediation;

(b) In s. 1 of the Waste Management Act, "pollution" is defined as "the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment";

(c) Under the Act, "'environment' means the air, land, water and all other external conditions or influences under which humans, animals and plants live or are developed"; and

(d) Although the Regional Waste Manager did not expressly use the word "substantially" when reciting the existence of reasonable and probable grounds, I take that word to be incorporated by his use of the word "pollution".

[32] The parties did not expressly agree that the pollution of the lake, and the land adjacent to the lake, amounted to "damage" to the waters of the lake or to the land. But I think such an inference is warranted from the statement of agreed facts, and the submission of counsel for Westside. Accordingly, I conclude that, by September 27, 2000, there was liability imposed by law on Westside to recover the rolls of paper and clean up the paper debris, and that there was "damage" to property owned by the provincial Crown (i.e., the waters of Moyie Lake, the lake bottom and the lands adjacent to the lake). And so I would answer the first question in the affirmative.

THE SECOND ISSUE

[33] The second question is whether the two disputed elements essential to the application of s. 64 of the Regulations, came into existence immediately following the accidental spill of the rolls of paper, or at some later time.

[34] From Mr. Jensen's letter dated October 3, 2000 to Westside, and from paras. 34 to 36 of the agreed statement of facts, I infer that Mr. Jensen would have acted pursuant to s. 12.1 of the Waste Management Act, had he attended the area immediately after the accident occurred. S. 12.1(2) states as follows:

"If an officer considers that

(a) a spill that has occurred may pose a hazard to health or the environment, or that there is an imminent threat of a spill that may pose such a hazard, and

(b) action is necessary to address the hazard or threat,

the government may carry out actions to assess, monitor, prevent, stabilize, contain, remove, clean up, evacuate persons from the area of or otherwise address the perceived hazard or threat."

[35] S. 12.1(1) defines "spill" as being "the introduction of a substance into the environment, whether intentional or unintentional, otherwise than as authorized under this Act." There is no suggestion that the accidental dumping of the paper rolls was authorized by the Act. In my opinion, Mr. Jensen could lawfully have demanded that Westside remove the paper rolls and clean up the paper debris pursuant to s. 12.1, immediately after the accident occurred, on the ground that he believed there had been a "spill" which "may pose a hazard to ... the environment". The evidence establishes that he would have made that demand on September 20^th. Such a demand would have imposed legal liability on Westside to remove the spilled cargo and cargo debris. But it would not necessarily follow that, immediately following the accident, there was damage caused to the property of the provincial Crown.

[36] As mentioned, my sense of the agreed statement of facts, and the arguments based on them, is that "pollution" is a form of "damage" within the meaning of s. 64 of the Regulations. The dispute between the parties on this issue, is whether the pollution (and hence the damage) was an immediate consequence of the accident, or whether it did not develop into pollution until several days after the accident.

[37] As I understand it, Westside submits that, even if legal liability may have been imposed on it to recover the cargo and clean up the cargo debris as soon as the accident occurred, there was no "damage to the property of another" until on or about September 27, 2000. It was also contended that Continental could have and should have recovered the cargo and cleaned up the cargo debris, before such damage occurred, pursuant to its obligation under the "debris removal" clause.

[38] There was no evidence which described the nature or extent of the scattering of the paper rolls and paper debris on the land, or the work and expense required to remove the paper rolls and debris from the land. The parties focussed their arguments on the paper in Moyie Lake.

[39] Continental submits that the mere presence of several 6,000 pound rolls of paper in Moyie Lake amounted to "pollution" under the Waste Management Act as soon as the rolls of paper entered the lake; and that this pollution of the lake amounted to "damage" to Moyie Lake, the property of the provincial Crown. Continental says that both liability and damage were simultaneous and an immediate consequence of the accident.

[40] I am not persuaded that pollution was caused by the mere deposit of several 3 ton rolls of paper into Moyie Lake. There may have been alteration of the lake or impairment of the usefulness of the lake, but I do not think, at the outset, that the degree of alteration or impairment could be characterized as "substantial". I conclude that damage to the property of the provincial Crown by way of pollution did not occur until on or about September 27, 2000.

[41] In the alternative to the "immediate pollution" argument, counsel for Continental argued that legal liability was imposed instantly on Westside by s. 3(2) of the Waste Management Act, which states in relevant part that:

"(2) ... a person must not, in the course of conducting an industry, trade or business, introduce or cause or allow waste to be introduced into the environment."

[42] Counsel submitted that the paper rolls fall within the definition of "waste" as being either "effluent" or "litter". It was implicit in this argument that the mere presence of "waste" should be presumed to cause some degree of damage to the environment.

[43] I do not agree with Continental's assertion that the rolls of paper would constitute effluent or litter. I do not see how large rolls of paper could properly be described as "a substance that is discharged into water or onto land", which is an essential aspect of the definition of "effluent". Moreover, s. 1(5) speaks of "effluent" as something that can be "diluted".

[44] Although "litter" is not defined in the Act, s. 9.1(2) creates the offence of littering, in the following terms:

"(2) A person must not throw down, drop or otherwise deposit, and leave, in a public place anything in such circumstances as to cause or contribute to the defacement of that place by litter."

[45] In my opinion, although the substances that could constitute litter seem almost unlimited, and there would be no need to prove the intent to litter, there must be an intentional throwing down, dropping or depositing of the substance, before it may be characterized as litter. The deposit of the rolls of paper onto Crown land and into Moyie Lake was entirely accidental, and in my view the rolls of paper did not constitute litter within the meaning of waste in the Act.

[46] However, I find that the spilled rolls of paper could fit within the definition of waste as being "refuse" (i.e. "discarded or abandoned materials, substances or objects"). It could be argued that, by September 25, 2000, Westside (through its agent, Continental) had abandoned the spilled rolls of paper. But even if abandonment was proved (and I am not satisfied that it is proved), clearly the abandonment was not immediate. The paper in the lake could not have become "waste" until at least September 25^th.

[47] I summarize my findings relevant to the second question for determination, in this way:

(a) The rolls of paper did not cause "pollution", and did not constitute "waste", immediately upon being deposited on the land, or in the waters of the lake.

(b) The environmental officer would have had immediate statutory authority to demand (and would have demanded) that Westside remove the rolls of paper and clean up the paper debris, on the grounds that he believed the "spill" of the paper rolls created an immediate "hazard to health" (i.e. to the health of person boating in Moyie Lake), and he believed the paper rolls would disintegrate and cause pollution of the lake (i.e., they would create "a hazard to ... the environment") if they were not promptly removed from the water.

(c) The evidence presented, including the observations and opinions of the environmental officer, justifies the inference that the mere presence of the several large paper rolls in Moyie Lake created an immediate obstruction to persons using the lake for boating, fishing or swimming. In addition, I find that the paper rolls floating in the lake caused a hazard for persons boating on the lake.

[48] As I see it, the issue is whether the obstruction and navigational hazard described, amounted to "damage to property" of the provincial Crown (i.e., Moyie Lake), as soon as the paper rolls went into the lake.

[49] I find that the several three-ton rolls of paper floating in the lake immediately interfered with persons using or intending to use the lake, and impaired the usefulness of the lake for recreational purposes. Counsel for Westside appeared to concede that this might constitute immediate "injury" to property (in the sense of an infringement or impairment of the right to use the lake), but argued that it did not amount to immediate "damage".

[50] As mentioned, the evidence does not persuade me that the impairment of "the usefulness of the environment" was substantial, until about a week after the paper rolls entered the lake. Consequently, there was no immediate damage by way of pollution.

[51] In contending for a distinction between "injury" and "damage" to property, counsel for Westside relied on Hildon Hotel (1963) Ltd. v. Dominion Insurance Corp. Ltd. (1968) 1 D.L.R. 3d 214 (B.C.S.C.), Greenwood Forest Products Ltd. v. United Fire Insurance Company (1982) 133 D.L.R. 3d 486 (B.C.S.C.) and Canadian Equipment Sales & Service Co. v. Continental Insurance Co. (1975) D.L.R. 3d 333 (Ont. C.A.). In all of those cases, the court had to determine whether there had been "injury to or destruction of property, including the loss of use thereof", within the meaning of a property damage liability clause in an insurance policy. In all cases, the court drew a distinction between "injury" and "damage", and found that there had been injury, but not damage, to property.

[52] Counsel for Continental submits that there is no meaningful distinction between injury and damage, at least not in the circumstances of this case. It is pointed out that, unlike the clause at issue in those cases, s. 64 of the Regulations does not contain the word "injury". Counsel contended that the cases of Hildon Hotel and Greenwood Forest Products are distinguished from the present case, in that the insurance policies in those cases provided coverage for injury to property, but excluded coverage for damage to property, and so the distinction was important in those cases. Counsel relied on the decision of Mr. Justice Drost in Privest Properties Ltd. v. Foundation Co. of Canada Ltd. (1991) 57 B.C.L.R. 2d 88.

[53] In Privest Properties Ltd., Drost, J. reviewed all of the relevant cases, including Hildon Hotel, Greenwood Forest Products and Canadian Equipment Sales & Service. At paras. 168 and 169, he concluded that "damage to property" and "injury to property" have the same meaning when contained in a clause in an insurance policy which provides coverage.

[54] At para. 169, Mr. Justice Drost said this:

"While the word "damage" may have a narrower meaning than that of "injury", they are quite similar, and as Mr. Justice Macfarlane observed in the Greenwood case, "the terms may, in a certain context, be synonymous." I believe that when they are considered in the context of an insuring agreement, to which a liberal interpretation should be given, as opposed to the context of an exclusion clause in which any ambiguity will be resolved against the insurer, they are synonymous."

[55] Counsel for Westside submits (and counsel for Continental seemed to concede) that there is an apparent inconsistency between Hildon Hotel and Greenwood Forest Products on the one hand, and Privest Properties Ltd. on the other. I am not persuaded that there is a conflict between the reasoning in these cases. But even assuming that there is a significant distinction between "injury" and "damage", I conclude that it is not relevant in the present case, because in my opinion there was immediate "damage" caused to the property of the provincial Crown as a result of the accident.

[56] The rolls of paper in the lake constituted an immediate obstruction to persons using the lake for boating, fishing or swimming. I infer that the character of the lake and an area adjacent to the lake was changed by the deposit of several large rolls of paper (6,000 lb. each) and that it would be necessary to expend considerable work and money to restore the lake and the land to its original condition. In my opinion, this is sufficient to constitute damage. I find some support for this conclusion in Attorney General for Ontario v. Fatehi (1984) 15 D.L.R. 4d 132 (S.C.C.) at pp. 136‑137, and in B.C. v. Canadian Forest Products Ltd. 2004 S.C.C. 38 at paras. 70 and 81 – 82. I refer also to my reasons in Protrux Systems Inc. v. Insurance Corporation of British Columbia, filed concurrently with these reasons. In that case, I decided that a large trailer load of chipboard that was deposited in the Similkameen River, caused damage to the river, although there was no proof of pollution.

[57] On the evidence before me, I am unable to determine how many of the rolls of paper went into the lake, and how many ended up on the hillside, the railway right-of-way or the lakeshore. But I infer that the paper rolls constituted an obstruction, both in the lake, and on the land.

THE "EXCESS INSURANCE" ISSUE

[58] It is agreed that the debris removal clause in the cargo insurance policy between Westside and Continental, could apply to this accident. The question is whether the coverage afforded by that clause is "excess insurance", by reason of the "other insurance" clause contained in the policy, or by application of s. 77 of the Regulations.

[59] The debris removal clause is subject to the "other insurance" clause in the policy which states as follows:

"Other Insurance

[60] I have found (contrary to Westside's position) that ICBC's obligation under s. 64 of the Regulations arose "at the time of loss or damage". I see no merit in Westside's argument that Continental's debris removal clause does not cover the same risk as ICBC's obligation under s. 64 of the Regulations, and (so the argument goes) therefore the ICBC coverage is not "other insurance".

[61] Counsel for Westside further maintained that because Westside was required by law to carry $1 million third party liability insurance (and in fact carried $5 million coverage), the coverage provided under Continental's debris removal clause is illusory, and could never be invoked by a person insured by ICBC. I understood counsel to argue that this fact militates against interpreting the ICBC coverage as "other insurance", because it was really the only insurance available. I do not accede to this argument.

[62] It follows that, in my opinion, there was "other insurance" available to Westside, and therefore Continental's obligation under the debris removal clause would apply only as excess insurance.

[63] I see no ambiguity in the wording of the Continental policy, and my interpretation is based on the plain and ordinary meaning of the words used, considered in the context of the policy as a whole.

[64] I would not have given effect to Continental's argument that s. 77 of the Regulations supported its position that Continental's debris removal clause was excess insurance.

[65] My finding that ICBC's coverage obligations applied from the outset, makes the alleged negligence (by delay) of Continental irrelevant. The point that Mr. Cole had said Continental was prepared to pay the cost of the recovery and clean up of the paper from the land, was not pursued.

[66] I summarize my opinion concerning the questions presented for determination, as follows:

(a) The liability coverage provided to Westside by ICBC pursuant to part 6 of the revised Regulation 1984 under the Insurance (Motor Vehicle) Act, does apply to the spilling of 8 rolls of paper near and into Moyie Lake.

(b) The said liability coverage applied to the said incident, immediately upon the occurrence of the incident.

(c) Assuming that the debris removal clause contained in the motor truck cargo carriers liability form issued to Westside by Continental applies to the incident, the coverage afforded by the debris removal clause is excess insurance by virtue of the "other insurance" clause contained in the general provisions of the Continental policy.

[67] Counsel agreed that I should not make any further decision, or make any order.

“D.A. Halfyard, J.”
The Honourable Mr. Justice D.A. Halfyard

Citation:	*Westside Transport v. Continental Insurance*,
	2004 BCSC 1195