in the supreme court of british columbia - Clark Wilson LLP

British Columbia Medical Association v. Aviva Insurance
Company of Canada Page 28
The Applicant is permitted to conduct his own defence to this action with legal
counsel of his choosing and the Co-Operators is responsible for paying all
fees of such counsel on a solicitor/client basis and disbursements incurred to
date together with all future fees and disbursements at the hourly rate
normally charged by such legal counsel. Counsel chosen by the Applicant is
not required to report to the Co-Operators with respect to any matters bearing
on the issue of liability.
[83] In my view, the relief granted in Morrison is appropriate for the circumstances
in the present case. Here, unlike Cansulex, the coverage dispute is being resolved in
advance of settlement of the Underlying Claim. Here, as in both Morrison and
Encon, there is a conflict that necessitates the insured being granted conduct of the
defence. However, unlike the situation in Encon, there is no evidence of concern
with respect to settlement; rather, the concern is with respect to conflict going to
liability.
2011 BCSC 1399 (CanLII)
Disposition
[84] In the result I grant the following relief:
(a)
(b)
(c)
the application of Aviva is dismissed;
a declaration that Aviva is, and at all material times has been, under an
obligation to pay for the defence of the BCMA and Individuals against
the claims brought against them by Caroline Wang as set out in the
Statement of Claim filed August 7, 2009 in the Supreme Court of
British Columbia, Vancouver Registry Action No, 509577, and as set
out in the Consolidated Notice of Civil Claim filed September 27, 2010
in the Wang Action;
BCMA and the Individuals are permitted to conduct the defence to this
action with legal counsel of their choosing and Aviva is responsible for
paying all fees of such counsel on a solicitor/client basis and
disbursements incurred to date together with all future fees and
disbursements at the hourly rate normally charged by such legal
counsel. Counsel chosen by BCMA and the Individuals is not required