Costs of Compliance Are Not Defence Costs

General Electric Canada Company v. Aviva Canada, Inc., 2012 ONCA 525 (C.A.)

At what point do costs of compliance become defence costs?

GE sought a declaration that its insurer, Aviva, had a duty to defend it in respect of a request by the Ministry of the Environment to provide information regarding contaminated groundwater near a property once owned by GE.  The Ministry asked GE to delineate the source area on its property.  GE did not oppose the request and incurred significant costs in complying.  GE argued that the costs associated with complying with the Ministry’s request were defence costs and therefore were payable under its insurance policy.  The application judge dismissed the application and GE appealed.

The Court of Appeal dismissed the appeal.

One of the key factors was that GE did not oppose, defend or investigate the Ministry’s request.  Since it voluntarily complied with the request, it did not suffer any defence or investigation costs.  The Court held that the costs incurred were compliance costs, not defence costs, and therefore were not covered by the policy.