Eric Dolden

 

Assistant Info

Eric Dolden

Eric has specialized in insurance law for 42 years, has been named as one of Canada’s top commercial insurance lawyers by Lexpert Magazine, selected for inclusion in “Best Lawyers in Canada” and is recognized as a leading lawyer for Insurance and reinsurance by Who’s Who Legal: Canada. Eric is a founding partner in the firm which is consistently ranked as one of Canada’s Top 10 Insurance Boutique law firms by Canadian Lawyer magazine.

Eric’s trial experience is varied and embraces the full spectrum of cases that liability insurers defend with recent notable examples including:

• The defence of various class actions stemming from the largest food safety recall in Canadian history: Harrison v. XL Foods Inc., 2014 ABQB 720
• The defence of a class certification for debt consolidation firms alleged to have breached provincial consumer protection legislation and the Bankruptcy and Insolvency Act: Pearce v. 4 Pillars Consulting Group Inc., 2019 BCSC 1851
• The defence of a law firm confronting allegations of breach of fiduciary duty by reason of a conflict of interest: Hutchison v. Moore, 2021 BCCA 301
• The novel issue of whether a gambling casino owes a duty of care to self-excluded patrons: Ross v. B.C. Lottery Corp., 2014 BCSC 320
• A 104 day trial resulting from catastrophic brain injury entailing extensive medical-legal expert evidence and standard of care issues: MacEachern v. Rennie and Canadian National Transport, 2010 BCSC 625
• A case that examined the legal relationship between an insurer and a broker that undertakes underwriting functions: Scottish & York Ins. Co. v. Metrix Professional Brokers Inc., 2008 64 C.C.L.I (4th) 242
• Complex issues of proximity and causation in the sports liability context: Dyke v. B.C. Amateur Softball Association, 2008 76 B.C.L.R. (4th) 278
• Concepts of reasonable foreseeability and remoteness of a municipal body: Abdi v. Burnaby (City of), 2020 BCCA 125

Eric has been peer-reviewed and recognized by Lexpert as one of Canada’s Leading Practitioners in the area of commercial insurance litigation.

Eric’s dominant practice areas include:

Professional liability defence, coverage and monitoring:

• The defence of a wide range of professionals including architects/engineers/medical service providers/land surveyors and accountants
• Creating and modifying E & O policy wordings for underwriters
• Acting as monitoring and coverage counsel on Canadian E & O programs

Cyber defence and coverage:

• Working as “cyber coach” for insurer cyber programs
• Cyber class action defence
• Coverage advice on first party data recovery and third party PIPEDA/Privacy Act/CASL claims
• Cyber breach notification procedures
• Negotiating with Federal and Provincial Privacy Commissioners on breach notice
• Multi-provincial litigation involving cyber breaches entailing personal information in differing provinces.
• Revising cyber policy wordings for use in Canada
• Addressing regulatory compliance with PIPEDA and CASL

Complex coverage disputes and policy wordings:

Coverage work, including his role as national and monitoring counsel for specialized insurance programs, has resulted in Eric being the insurer’s counsel of choice on many high profile and well known coverage cases decided in various jurisdictions across Canada including:

• the Supreme Court of Canada’s examination of whether an “All Risk” property insurance policy is a policy of “Fire Insurance” for the purpose of the Insurance Act: Churchland Gore Mutual Insurance Co., [2003] 1 SCR 445
• the Supreme Court of Canada decision concerning the “duty to defend” obligation in thecontext of a sexual abuse claim: Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 SCR 555
• the Supreme Court of Canada decision as to whether the existence of insurance may be disclosed to a jury: Hamstra (Guardian ad litem of) v. British Columbia RugbyUnion, [1997] 1 SCR 1092
• The Ontario Court of Appeal decision whether relief from forfeiture is available in the context of a “claims made and reported” liability policy: Furtado v. Lloyd’s Underwriters, 2024 ONCA 579
• the British Columbia Court of Appeal decision on the ambit of coverage for an insured’s current and past undisclosed partnerships and joint venture activities in the context of a general liability policy: Kingsway General Insurance Co. v. Lougheed Enterprises Ltd., (2004) 32 BCLR (4th) 56 (CA)
• the British Columbia Court of Appeal decision as to whether an action for misappropriation of a trade secret amounts to “unfair competition” for the purpose of an advertising injury coverage in a commercial general liability policy: Blue Mountain Log Sales Ltd. v. Lloyd’s Underwriters, 2019 BCCA 240
• the Ontario Court of Appeal decision on whether triggers for coverage are amenable to partial summary judgement: Toronto Dominion Bank N.A. v Lloyd’s Underwriters, 2017 ONCA 1011 (CanLII)
• the British Columbia Court of Appeal decision as to the method of allocation between the Directors and Officers and their uninsured company: Coronation Insurance Co. v. Clearly Canadian Beverage Corp., (1999) 168 DLR (4th) 366 (BCCA)
• the British Columbia Court of Appeal decision as to whether psychological harm amounts to bodily injury for the purpose of a D&O exclusion: Wellington Guarantee Evangelical Lutheran Church in Canada, [1996] 9 WWR 373
• the British Columbia Court of Appeal decision on the extent to which coverage for “Stock” at “Temporary Locations” arises in the context of a commercial property policy: Wingtat Game Bird Packers (1993) Ltd. v. Aviva Insurance Company of Canada, (2009) 76 CCLI (4th) 161
• the Ontario Court of Appeal decision as to whether a third party liability exposure constitutes “direct financial loss” in the context of a fidelity policy and whether that issue can be decided on summary judgement: T.D. Bank, N.A. v. Lloyd’s Underwriters, 2017 ONCA 1011
• the Ontario Court of Appeal decision as to whether an underwriter’s willingness to waive an answer to a particular question in an application for insurance has the effect of“reading out” any related exclusion: Lloyds Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341
• the Saskatchewan Court of Appeal decision as to whether the “tort immunity” doctrine flowing from a covenant to insure requires the cgl insurer to indemnify: Royal & Sun Alliance Insurance Company v. Community Electric Ltd. (2020) SKCA 17
• the British Columbia Supreme Court decision on equitable contribution in the context of a class action for bodily injury: Lloyds v. Insurance Company of Pennsylvania, 2016 BCSC 665
• the British Columbia Supreme Court decision on what constitutes a “claim” on a “claims made and reported” policy: Bakshi v. American Home Assurance Co., (2000) 84 BCLR (3d) 153
• the British Columbia Supreme Court decision on the extent to which a general liability insurer can resist a settlement entered into between a claimant and its insured if there is evidence of collusion or unreasonableness: Litchfield Holdings & Management Corp. v. Kingsway General Insurance Co., (2002) 44 CCLI (3d) 238
• the British Columbia Supreme Court decision concerning the application of the “absolute pollution” exclusion in a general liability policy in response to environmentally regulated contaminants: Dave’s K&K Sandblasting (1998) Ltd. v. Aviva Insurance Co. of Canada, [2007] 51 CCLI (4th) 229
• the Ontario Superior Court decision as to whether defects in building construction constitute an “accident” or “property damage” for the purpose of a general liability policy: Russel Metals Inc. v. Ball Construction Inc., (2007) 55 CCLI (4th) 241
• the Alberta Court of Queen’s Bench decision as to whether a stay can be granted short of a final non-appealable determination for the purpose of a D & O policy: Maxim Power Corp v. ACE INA Insurance, 2016 ABQB 539

Eric has either authored or co-authored the following articles in this area:

• An Overview of Primary and Excess Coverage Issues for Claims Examiners (2008);
• Recent Developments in the Law Relating to Changes Material to the Risk (2007);
• Does A Commercial General Liability Policy Afford Coverage For A “Named Insured” Or An “Additional Insured” Involved in Any Past Or Current Partnership Or Joint Venture Activities? (2005);
• Mould: First Party Property and Third Party Liability Issues Facing Canadian Insurers (2003);
• Interpreting Common Exclusions in Property Policies (1994);
• The Comprehensive General Liability Policy: Responding to Modern Business Risks (1990) 8 Can. J. Insurance L. 44-76; (1991) 2 Can. Ins. L. Rev. 11-79;
• Contracts to Bar Subrogation and to Avoid Legal Liability (1989) 7 Can. J. Insurance L. 90­96;
• The Insurer’s Obligation to Indemnify a Named Insured for Loss Caused by a Co-Insured or an Unnamed Insured;
• Defence of Civil Sexual Assault Damages Claims: An Insurer’s Perspective – Co-Author: Kathleen Duffield;
• Partnerships, Limited Partnerships, and Joint Ventures: Managing the Risk – Co-Author: Suzanne Duff;
• Subrogated Proceedings: Diminution in Value or Replacement Cost (1994), 5 Can. Ins. L. Rev. 67-74;
• The Practical Implications of the Replacement Cost Endorsement (1994), 4 Can. Insurance L. Rev. 277-87;
• Practical and Substantive Aspects of Subrogation (1993), 4 Can. Ins. L. Rev. 121-194;
• The Broad Form Property Policy Responds to Environmental Losses (1992);

D & O monitoring and coverage:

• Defending, managing and resolving securities class actions in 6 of 10 provinces
• Extensive coverage work on both reimbursement and “duty to defend” D & O policies
• Defence of private company and non-profit D & O claims
• Modified D & O policies and developed manuscript endorsements for use in Canada

Eric has either authored or co-authored the following articles in this area:

• Entity Coverage for Securities Claims Under a D & O Policy: Have We Come Full Circle? (2007), 25 J.I.L. 93 [Part 1], (2008), 26 C.J.I.L. 1 [Part 2];
• Directors’ and Officers’ Liability in British Columbia: Some Emerging Trends (2003);
• Emerging Trends in Canadian Directors/Officers and Employment Practice Liability: Substantive and Coverage – Co-Authors: Brock S. Beazley and Laura A. Wright [2002] 20 Can. J. Insurance L. 29-44; and
• Handling “Cross-Border” D & O Claims Involving Canada and the United States – Co-Author: Susan Rutherford (1999) 17 Can. J. Insurance L. 45-67.

Employment practice liability and coverage:

• National monitoring and coverage counsel on a wide range of EPL insurance programs in Canada
• Developed “made in Canada” EPL forms
• Defended entities and management on “duty to defend” EPL policies for a wide range of wrongful employment violations
• Maintained Canada wide 1-800 toll service for EPL insurers and their insured

Eric has either authored or co-authored the following articles in this area:

• Employment Practices Liability and Employment Practices Liability Insurance Coverage In Canada (Part 1) – Co-Author: Susan Rutherford (1999) 17 Can. J. Insurance L. 1-15; and
• Employment Practices Liability and Employment Practices Liability Insurance Coverage In Canada (Part 2) – Co-Author: Susan Rutherford (1999) 17 Can. J. Insurance L. 20-26.

Construction defence and coverage:

• Defended a wide range of construction site participants including contractors, sub­contractors, project managers, and developers.
• Handled a wide range of surety and warranty claims including coverage issues

Eric has either authored or co-authored the following articles in this area:

• All Risk and Builders’ All Risk Policies – Emerging Trends (1991);
• The Application of the General Liability Policy Exclusions in the Construction Setting – Co-Author: Lisa Ridgway;
• Substantive and Coverage Issues Inherent to the Defence of Professionals in Leaky Condo Litigation – Co-Author: Lisa Ridgway;
• Insuring Conflicts on the Construction Site (1991) 9 Can. J. Insurance L. 94-96; (1991) 59 Assurances 377-402, 533-548; (1992) 60 Assurances 129-146, 273-
  276; (1992) 3 Can. Ins. L. Rev 33-98;
• All Risk and Builders’ Risk Policies: Emerging Trends (1991) 9 Can. J. Insurance L. 20-40; (1991) 2 Can Ins. L. Rev. 341-384.

Environmental Impairment Liability Insurance and First Party Cleanup Coverage:

• Retained by EIL insurers to defend claims brought against both spill and long term pollution contamination events, particularly in the energy and mining sectors
• Retained to provide coverage advice on EIL policies and acted as coverage and monitoring counsel on site cleanup claims

Fiduciary liability and coverage:

• Acted as defence counsel on covered pension plan disputes
• Extensive coverage work on fiduciary liability policies
• Modified policy forms for use in Canada

General liability policies and coverage:

• Defended a wide range of insureds
• Litigated key coverage cases on “duty to defend” policies
• Provided advisory services to insurers modifying their general liability policies
• Acted for liability insurers undertaking policy buyouts on mass tort claims including asbestos, environmental losses and tobacco litigation

Property policies:

 

• Coverage work on disputed property claims
• Extensive experience handling subrogated claims
• Undertaken numerous policy revisions in response to client requests
• Defended a wide range of property losses where fraud is an element

Recent Publications

Cyber Liability and Cyber Insurance in Canada, published by Canada Law Book, February, 2020.