Unrealistic Coverage: Insurer tripped up by loose policy language

by Hillel David and Howard Borlack

The recent decision in Surespan Structures Ltd. v Lloyds Underwriters¹showcases the critical importance of careful draftsmanship of policy wording, particularly in situations where the policy provides unusual or novel types of coverage, leaving little if any case law to guide the interpretation of the policy language.²

Factual Background

The action arose from a large construction project having a total value of approximately $400 million. Given the size of the project, there were numerous layers of subcontractors, one of which was the plaintiff in the action. Surespan was a sub-subcontractor which designed, supplied, and installed precast concrete components. Cracks were ultimately discovered in some of those components and, at the time of this action, Surespan had already incurred close to $10 million in remedial expenses. A professional liability policy for the project had been issued by the defendant. The insurer initially denied coverage for the claim for indemnity for those expenses on the ground that Surespan was not a named insured. However, a finding had been made in a prior proceeding that all contractors, consultants, subcontractors, and subconsultants who provided professional services for the project, including Surespan, were insured under the policy. The dispute in this action involved the issue of whether or not the limits of liability clause in the policy applied to the coverage under which Surespan claimed indemnity.

The policy provided four separate types of coverage:

Coverage for damages awarded in a claim against the insured arising out of the performance of professional services for the project;
Indemnity against the costs and expenses of remedying defects in the works resulting from an error, omission, or negligent act in the performance of professional services by the insured or those for whom it was legally liable;
Defence costs; and
Supplementary payments relating to claim expenses, costs, and interest payable by the insured.

The court referred to those coverages as Damage Coverage, Mitigation of Loss Coverage, Defence Costs Coverage, and Supplementary Payments Coverage respectively.

The policy contained a Limits of Liability clause which provided as follows:

THE INSURER'S LIMITS OF LIABILITY

The maximum amount the INSURER will pay for each CLAIM and in the aggregate for all CLAIMS are...as shown in the Schedule Page of this POLICY as the Limits of Liability per CLAIM and in the aggregate for the POLICY PERIOD.

The INSURER'S obligations to defend and make supplementary payments are included in the INSURER'S Limits of Liability.

The Schedule Page of the policy contained the following:

Limit of Indemnity: CAD $10,000,000 any one claim and in the aggregate including costs and expenses

Uninsured Excess: CAD $500,000 each and every claim
including costs and expenses

...the MoL coverage... did not have an explicit limit of liability...

The finding of no monetary limit for one of the coverages

Before turning (in an informal manner, as will be outlined below) to the issue that warranted serious attention and consideration, and which is the central subject of this paper, the court (unsurprisingly) found that the policy did not make the monetary limits of liability applicable to the Mitigation of Loss (“MoL”) coverage, with the result that there was, in fact, no monetary limit for that coverage. The grounds for that finding, stated briefly, were:

Unlike the three other (significantly different) coverages, the MoL coverage, which was a separate and independent coverage, did not have an explicit limit of liability, was not expressly referenced in the Limits of Liability clause, and did not arise out of, nor was it triggered by, a claim made by another person against the insured. The MoL coverage involved first party coverage for indemnity for the costs of remedying defects in the works. It did not arise in the context of a claim, or of compensable damages being payable by the insured to a claimant.

The Schedule provided that “the Limit of Indemnity [was] $10,000,000 any one claim and in the aggregate”. This showed that the limit did not apply to a coverage which was not based on “claims”. The words “in the aggregate” in the limits of liability clause similarly applied to “claims”. The MoL coverage was not a claims-based coverage. The words “costs and expenses” in the declarations referred to the defence costs and supplementary payments coverages, not to the MoL coverage.

While the interpretation of a contested provision must be consistent with the policy as a whole, specific policy language tends to govern over more general language. Thus, the fact that the other coverages were explicitly subject to the limits of liability clause, while the MoL coverage was not, tended to show that it had been the intention of the parties that there be no monetary limit for the MoL coverage.

The limits of liability clause therefore clearly and unambiguously applied only to the three other coverages, despite the admission by the insured that aspects of the policy language appeared to have been “cut-and-pasted together”. Not only did the limits of liability clause not apply to the MoL coverage, nor did the deductible, or “excess”, provisions in the policy.

The policy contained the following statement: INSURANCE IS PROVIDED ONLY FOR THOSE COVERAGES FOR WHICH A SPECIFIC LIMIT OF INSURANCE IS SHOWN – ON TERMS AND CONDITIONS CONTAINED IN THE FORMS INDICATED. While that statement, read literally, might indicate that the MoL coverage was effectively nullified in the absence of a specific limit of insurance shown as applicable to it, the insurer (wisely) did not adopt that draconian approach, and instead accepted that the provision was more in the nature of an interpretive aid than a precondition of coverage. It was held, in any event, that the issue of whether or not the MoL coverage could exist in the absence of a monetary limit was governed by more detailed and specific language in the policy.

The court made reference to the suspicion voiced by the trial judge that the failure to include a monetary limit for the MoL coverage was an oversight on the part of the insurer, but stated that this was not a matter for consideration in the absence of a plea of mistake and a request for rectification of the insurance policy.

The Consolidated Bathurst principle: Rejecting coverage for a recovery that would not have been contemplated, anticipated, or sought in the commercial atmosphere in which the insurance was contracted, or for a result that would not be sensible or realistic.

The more interesting issue, and one which the court declined to formally address,³although it nevertheless considered the issue by way of obiter dicta, was the position advanced by the insurer that a finding of no monetary limit for the MoL coverage, particularly in the context of a project valued at $400 million, was inconsistent with commercial reality. For obvious reasons, insurance policies that do not expressly provide for monetary limits are few and far between. The insurer relied upon the well-known and oft-applied comments in Consolidated Bathurst Export Ltd. v Mutual Boiler & Machinery Insurance Co.⁴ that are summarized in the heading above. The relevant passage from that decision is reproduced in full later in this paper.

Requirement for ambiguity in the policy language

A contract is ambiguous where there are “two reasonable but differing interpretations of the policy”.

The court said⁵ that more recent cases suggest that the commercial expectations of the parties, or interpretations that avoid windfalls to either party, should only be considered where there is an ambiguity in the terms or language of an insurance policy.⁶

The following (unremarkable) comments were made regarding the issue of ambiguity:

It is important to understand that a contract whose terms may, in some respects, be unclear or imprecise, is not ambiguous. So too, a contract that contains some language that is troublesome or that does not align with the contract as a whole or that cannot be fully reconciled with other aspects of the contract is not necessarily ambiguous.

A contract is ambiguous where there are “two reasonable but differing interpretations of the policy”.⁷

.....

What the [insurer in this case] seeks to do, in relying on the commercial context or purpose of the Policy, is not to inform the wording of the Policy, but rather to transform its meaning.⁸

Comment was also made in regard to the interpretive rule relating to the reasonable expectations of the parties (more on this below):

Furthermore, the reasonable expectations of the parties must necessarily be objective and not subjective. This requires an examination of the “general commercial atmosphere” rather than the “subjective belief” of either party or of the “concerns” that an insurer alone might hold.⁹

Each of the three SCC decisions cited in Surespan did in fact explicitly tie the application of the principle relating to commercial reality, and the avoidance of windfalls to either party, to cases where there is an ambiguity in the terms or language of the insurance policy:

[I]nsurance law has given rise to a number of principles specific to the interpretation of insurance policies...They apply only where there is an ambiguity in the terms of the policy...

[T]he courts should try to give effect to the reasonable expectations of the parties, without reading in windfalls in favour of any of them. In essence, “the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or the insured to achieve a recovery which could neither be sensibly sought nor anticipated at the time of the contract”.¹⁰

These rules of construction [including those referenced in Consolidated Bathurst] are applied to resolve ambiguity.¹¹

.....

The primary interpretive principle is that where the language of the insurance policy is unambiguous, effect should be given to that clear language, reading the contract as a whole...

Where, however, the policy's language is ambiguous, general rules of contract construction must be employed to resolve that ambiguity. These rules include that the interpretation...should not give rise to results that are unrealistic or that the parties would not have contemplated in the commercial atmosphere in which the insurance policy was contracted...¹²

Did Consolidated Bathurst require ambiguity?

...literal meaning should not be applied where to do so would bring about an unrealistic result...

Consolidated Bathurst was not the first decision to consider or pronounce upon the various rules of interpretation summarized in its majority judgment, but it is widely viewed as the locus classicus due to its succinct and articulate linkage of those rules. Did it make ambiguity a necessary element? The full relevant passage from Estey J's judgment is:

Even apart from the doctrine of contra proferentem as it may be applied to the construction of contracts, the normal rules of construction lead a court to search for an interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties. Similarly, an interpretation which defeats the intentions of the parties and their objective in entering into the transaction in the first place should be discarded in favour of an interpretation of the policy which promotes a sensible commercial result. It is trite to observe that an interpretation of an ambiguous contractual provision which would render the endeavour on the part of the insured to obtain insurance protection nugatory, should be avoided. Said another way, the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or the insured to achieve a recovery which could neither be sensibly sought nor anticipated at the time of the contract.¹³

While there are references in that passage to ambiguity and the rule of contra proferentem, it is not at all clear that Estey J considered that the approach which he described was reserved only for situations where the policy language was ambiguous. To the contrary, we believe that it was his position that no ambiguity was required in situations where there would be a recovery that would not have been contemplated, anticipated, or sought in the commercial atmosphere in which the insurance was contracted, or where there would be a result that would not be commercially sensible or realistic.

The clearest articulation of that view was made in the sentence where it was said that even “literal meaning should not be applied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted”.

It appears, however, that subsequent decisions have generally – although not always – misunderstood or misstated the principle that was so well-stated in Estey J's judgment.

No rationale provided for a requirement for ambiguity

As indicated above, the case law has, for the most part, gone no further than to make the bald statement that the type of relief envisioned in Consolidated Bathurst is available only where the policy language contains an ambiguity. Questions that apparently have not yet been asked are: Why should it be necessary for the policy language to contain an ambiguity before relief becomes available in the types of circumstances outlined by Estey J? What is the rationale for the requirement for ambiguity?

Case law where ambiguity apparently was not required

There are decisions where no mention of a need for ambiguity in the policy language has been made, or where a reference of uncertain effect to ambiguity has been made.

In Herbison v Lumbermens Mutual Casualty Co.,¹⁴ an auto policy was held not to respond to a claim by a person negligently shot by a hunter who had driven to the site and used the headlights of his vehicle for hunting purposes. The court relied on the comments made in Consolidated Bathurst regarding recoveries “which could neither be sensibly sought nor anticipated at the time of the contract”, without making any reference to a need for ambiguity in the insurance policy.¹⁵

...the insurers' interpretation would produce an “unrealistic result”...

In Canadian National Railway v Royal and SunAlliance Insurance Co. of Canada,¹⁶ the insurer argued that a “faulty or improper design” exclusion applied where the failure had occurred in circumstances of foreseeable risk, despite the fact that the design had been state-of-the-art. Making no reference to any ambiguity in the language of the exclusion, it was held that the insurers' interpretation would produce an “unrealistic result” in “the commercial atmosphere in which the insurance was contracted”.¹⁷

In Non-Marine Underwriters, Lloyd's London v Scalera¹⁸ there was a direct reference to a part of the passage from Consolidated Bathurst reproduced above, together with references to policy language ambiguity, the desirability of giving effect to the reasonable expectations of the parties, and to “the importance of commercial reality”.¹⁹ It is unclear, however, whether the latter consideration was considered to be applicable only if coupled with ambiguity in the policy language.

Reasonable expectations v the Consolidated Bathurst principle

It is easy to conflate two separate and different rules (or principles) of interpretation: (a) the reasonable expectations rule, and (b) the rules outlined by Estey J in Consolidated Bathurst. The reasonable expectations rule applies in different circumstances than do the Consolidated Bathurst rules, but those circumstances differ only in degree, not in kind, which is why the conflation can be readily made.

The differences in the rules outlined in Consolidated Bathurst as compared to the rule of reasonable expectations are policy-based. As set out below, this policy-based distinction is already well-recognized so far as the insured is concerned. The distinction should similarly be recognized in the case of the insurer, although there is, as also indicated below, an “elephant in the room” that creates complications for the latter.

Reasonable expectations: Prior to a particular loss, the insured may have had an expectation that that type of loss would be covered. While the expectation might have been reasonable in that it was reasonable in a general sense to have expected the coverage to encompass that type of loss, it may at the same time be viewed as unreasonable in another sense. If the policy language clearly and unambiguously excluded coverage for that particular type of loss, then what might otherwise have been a reasonable expectation is rendered unreasonable, because it is unreasonable to expect to receive coverage which you are taken to know, because of clear and unambiguous language, that you have contractually abandoned. It is therefore settled law that effect will be given to a party's reasonable expectations only where the policy language, whether by way of ambiguity or otherwise, permits the court to do so.²⁰The same argument can, of course, be made with respect to the position of the insurer that it had a reasonable expectation that there would not be coverage for a particular type of loss, but where that expectation was rendered unreasonable by the language of the policy (although in this situation there may not be a need for the policy language to be clear and unambiguous, because an ambiguity will generally be resolved against the insurer).

Consolidated Bathurst: While reasonable expectations will be defeated by clear and unambiguous policy language, that does not hold true where more severe consequences are concerned. As set out below, even a clear and unambiguous exclusion clause will not be given effect if that effect is to completely or substantially nullify coverage for the insured. The same principle should apply insofar as the insurer is concerned: Clear and unambiguous policy language should not save coverage when doing so would result in a recovery that would not have been, in the language of Consolidated Bathurst, contemplated, anticipated, or sought in the commercial atmosphere in which the insurance was contracted, or where the result would not be sensible or realistic. The insurer, as well as the insured, ought to have a remedy where the application of clear and unambiguous policy language would result in severe and unacceptable consequences, but where the rule of reasonable expectations is unavailable because of the presence of that clear and unambiguous policy language.

... the reasonable expectations rule.

A consideration of clear and unambiguous policy language (assuming there is any) is not only a constituent element of, but the governing consideration in, the reasonable expectations rule. The Consolidated Bathurst rules, on the other hand, apply regardless of clear and unambiguous policy language which would lead to a contrary result. In fact, it is the very presence of clear and unambiguous policy language which would lead to an unacceptable result that often triggers the Consolidated Bathurst rules.

Reasonable expectations is policy language-dependent, while nullification of coverage/the Consolidated Bathurst principle is not.

As stated above,²¹ the court in Surespan referred to recent case law which was said to discuss the “commercial expectations of the parties, or interpretations that would avoid windfalls” (emphasis added), and discussed the reasonable expectations rule, indicating that the court conflated the matter of reasonable expectations and the Consolidated Bathurst principle.²²It may be that the other decisions referenced in Surespan as calling for a need for ambiguity did so as a result of conflation with the rule of reasonable expectations.

The policy rationale for the Consolidated Bathurst rules does not require ambiguity

We read Consolidated Bathurst to stand for the proposition that, as a matter of policy pure and simple, a result that would not have been contemplated, anticipated, or sought, nor would be commercially sensible or realistic, should be impermissible. Where a result is of that nature – and one that might even be described as “absurd”²³ – there seems little need for any additional foundation, such as ambiguity, for a remedy to be available. The fact that it is a result that comes within those parameters should suffice as a standalone basis for a remedy.

A principle analogous to, and which can be viewed as a restatement in more general terms of, the Consolidated Bathurst principle is that “parties are held to the terms of their agreement provided that the result is not unconscionable...unfair or unreasonable or otherwise contrary to public policy”.²⁴ There too there was no mention of any requirement for ambiguity; in fact, the whole point of the principle was to provide an escape mechanism in the event of clear and unambiguous contract language which leads to an unacceptable result. To similar effect is the following: “[W]hen the wording of a contract is unambiguous...courts should not give it a meaning different from that which is expressed by its clear terms, unless the contract is unreasonable or has an effect contrary to the intention of the parties”.²⁵

Analogy to virtual or substantial nullification of coverage

As indicated above, an analogy may be drawn to the situation where the issue arises whether an exclusion clause, while clear and unambiguous, is so wide-ranging in its effect as to effectively nullify the coverage, or an important part of the coverage, for which the insured paid a premium. There is an undoubted common law principle that if an exclusion has the effect of virtually nullifying coverage for the insured, then the exclusion will itself effectively be negated by the court. As outlined above, it is the severity of the impact on the insured which distinguishes this principle from the rule of reasonable expectations, where the remedy is unavailable in the event that the policy contains clear and unambiguous language that conflicts with the insured's otherwise reasonable expectation.

No ambiguity in the language of the exclusion is required,²⁶ nor is it always necessary for extrinsic evidence regarding the impact of the exclusion to be led; in some instances at least, the court is entitled to draw a conclusion on that issue without such evidence.²⁷

That leads to the following question: Should the same approach be taken where it is the insurer, rather than the insured, which seeks to avoid the plain language of the insurance policy by arguing that the result sought by the insured would not have been contemplated, anticipated, or sought in the commercial atmosphere in which the insurance was contracted, or where the result would not be commercially sensible or realistic? A commercially unrealistic result is a commercially unrealistic result, regardless of whether there is any ambiguity in the policy language. If the common law dictates that, as a matter of policy, a commercially unrealistic result is to be avoided – just as virtual nullification of coverage is to be avoided – then the presence or absence of any ambiguity should be an irrelevant, or at least neutral, consideration. The language of the insurance policy, whether clear or otherwise, should simply bow to the policy-based principle.²⁸

Virtual nullification of coverage for the insured, and a result of the type considered in Consolidated Bathurst, might be said to be flip sides of the same coin. Both situations should lead to the abrogation, because of a policy-based common law principle, even of clear and unambiguous language in the insurance policy. Why should the insurer's position be treated differently than that of the insured who alleges a complete or substantial loss of coverage due to an unambiguous exclusion clause? Depending, of course, on the circumstances of each case, is a commercially unrealistic result any less worthy of a remedy?

...the insurer is the author of the policy language...

The elephant in the room

One must not, however, lose sight of the “elephant in the room,” that being the pervasive impact of the fact that, in the large majority of cases, the insurer is the author of the policy language, and the insurance policy is presented to the insured on a take-it-or-leave-it basis. The case law is replete with references to that consideration.²⁹

There ought not, in theory, be a difference in the treatment of the two parties. Each can legitimately argue that they (the insured) have largely been deprived of the benefit of the contract, or they (the insurer) have been unduly and unfairly burdened under the contract, and both can say that the result is contrary to what had been the true intentions of the parties. There may well be, however, even if only subconsciously, a slight bias that works against the interests of the insurer on this as on other issues. For example, the insurer is far more likely to be viewed as the author of its own misfortune and therefore disentitled to a remedy, even if that sort of defence ought to be considered irrelevant. Surespan is itself an excellent example of that type of situation, given the failure of the insurer in that case to protect its own interests through an appropriate limits clause.

What if there actually is an ambiguity in the policy language?

Another question that apparently has not yet been asked is: What if there actually is an ambiguity in the policy language? Would that make the situation any different?

Suppose, for example, that the limits of liability clause and the Schedule page in the Surespan policy had contained the words “claim and costs”, instead of the single word “claim”? Those words would, at least arguably, have been ambiguous. The insurer would have taken the position that the specified limits applied not only to the three claim-based coverages, but also to the costs-based MoL coverage, while the insured would have taken the position that the word “costs” was, at a minimum, ambiguous, and should be interpreted to refer only to claim-related costs, and not to remedial work costs. If that is not seen to create a genuine ambiguity, then the reader might imagine other language that would have been treated as ambiguous.

The court presumably would have applied the general rule that ambiguities are to be resolved in the insured's favour. The result of the application of that general rule would have been identical to the result arrived at had there been no ambiguity – i.e. the insurer would have been found to have an unlimited liability on the MoL coverage. In fact, it is difficult to imagine any ambiguity, in any insurance policy, whose resolution in the insured's favour in accordance with the general rule, which would make any difference in the result.

The true central issue

The requirement for an ambiguity serves no meaningful purpose; instead, it merely adds a layer of complication that will end with the same result as would otherwise have been the case, and does nothing to advance a resolution of the true central issue:

Are the circumstances such that, despite the presence of clear and unambiguous policy language, a remedy that avoids a recovery that would not have been contemplated, anticipated, or sought in the commercial atmosphere in which the insurance was contracted, or which is not commercially sensible or realistic, is warranted?

An additional issue in the Surespan circumstances

It should be noted that a further difficulty was present for the insurer in Surespan. A serious roadblock stood in its path (and might well, albeit in a different form, stand in the way of an insurer's position in other cases as well where the commercially unrealistic result issue is raised). Unlike the situation in nullification of coverage cases, where there is a binary choice of outcomes – either the clearly-worded exclusion is effectively negated, or it is enforced – the situation in Surespan required a second determination to be made if and when the initial finding were made that the result would, in fact, contravene the principles set out in Consolidated Bathurst. That second determination would have been on the question of the amount of the monetary limit for the MoL coverage. The insurer presumably would argue that the same $10 million limit applicable to the other coverages would apply to the MoL coverage as well, while the insured would (correctly) point out that the parties had never agreed upon any particular monetary limit for the MoL coverage, that there would be no basis other than convenience upon which to select the $10 million limit applicable to the other coverages, and that to impose that limit would essentially be an arbitrary decision. It is highly unlikely that the parties would come to an after-the-fact agreement on any particular limit, and there would be no principled basis upon which the court could impose any particular limit.

In the end, the unambiguous language of the insurance policy governed the relationship of the parties, and the outcome of the dispute, in Surespan.

2021 BCCA 65.
Express reference (at para. 97) was made to the fact that the coverage in issue (Mitigation of Loss coverage) was not a common element of Canadian insurance policies, and that the parties had been unable to find any Canadian cases interpreting this type of coverage.
On the grounds that the issue did not, in the circumstances of the case, result in two different answers (presumably a reference to an absence of ambiguity in the policy language), and because the issue was not developed in the arguments of the parties: at para. 85.
[1980] 1 S.C.R. 888.
At para. 87.
The following decisions were identified: Jesuit Fathers of Upper Canada v Guardian Insurance Co. of Canada 2006 SCC 21 at paras. 27-30; Progressive Homes Ltd. v Lombard General Insurance Co. of Canada 2010 SCC 33 at paras. 22-23; Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co. 2016 SCC 37 at paras. 49-50.
At paras. 88-89.
At para. 92.
At para. 94.
Jesuit Fathers, at paras. 27 and 29.
Progressive Homes, at para. 23
Ledcor, at paras. 49-50.
Consolidated Bathurst, at para. 26.
2007 SCC 47.
Herbison, at para. 10.
2008 SCC 66.
CNR, at paras. 51-53.
2000 SCC 24.
Scalera, at paras. 71-72.
Among many decisions on this, see Scalera at para. 71, Progressive Homes at para. 23, and Derksen v 539938 Ontario Ltd. 2001 SCC 72 at para. 57.
See fn. 5 above.
We believe that another example of that conflation can be seen in Gibbens v Co-operators Life Insurance Co. 2009 SCC 59 at para. 26, and perhaps in the Scalera decision – see fns. 18-19 above.
As in Reid Crowther & Partners Ltd. v Simcoe & Erie General Insurance Co. [1993] 1 S.C.R. 252 at para. 44.
Guarantee Co. of North America v Gordon Capital Corp. [1999] 3 S.C.R. 423 at para. 64, where the issue was raised in the context of the doctrine of fundamental breach of contract.
Scott v Wawanesa Mutual Insurance Co. [1989] 2 S.C.R. 1445 at para. 51 (emphasis added). The dissenting opinion in that case, while based in part on the view that the policy language was ambiguous (see para. 22), contained the following remark (at para. 17): “If the policy in this case is interpreted in this manner, it would reflect the result contemplated in the commercial atmosphere in which the insurance was contracted.”
Were there ambiguity, there would be no need to resort to the severe remedy of effectively negating the exclusion.
Cabell v The Personal Insurance Co. 2011 ONCA 105 at paras. 24-31.
While not citing chapter and verse, decisions can be found in which the literal interpretation of contract provisions was, for one policy-based reason or another, not applied. This would just be a similar example.
“[I]nsurance contracts are essentially adhesionary”: Scalera, at para. 70; “[T]he courts should be aware of the unequal bargaining power at work in the negotiation of an insurance contract and interpret it accordingly”: Jesuit Fathers, at para. 28; “It is the insurance company which draws up a contract of insurance. It is the company which determines the clauses which will go into a standard form of contract. It is that standard form of contract which is offered to people in all walks of life on a take-it-or-leave-it basis”: Brissette v Westbury Life Insurance Co. [1992] 3 S.C.R. 87, adopted in Gibbens at para. 25.