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(BY HUGO)

A report from MARSH Canada, A Review of Water-Related Opportunities and Threats, outlines insurance issues in the sector to ensure adequate coverage. The main types of coverage discussed relate to property and general liability, environmental insurance and D&O liability insurance (p.6-7). From an insured's perspective, one question can be how the considerations related to the various risks outlined in the report (operational, litigation, regulatory, financial) have an impact on the duty to disclose. For example:

«Organizations that are heavily dependent on water supply such as beverage, energy, and agricultural producers, as well as technology manufacturers may face significant business interruption losses due to the lack of adequate water supply. As such, it is important that organizations consider this possibility when evaluating their business interruption exposure. Business interruption coverage is available on a property policy as long as the event is
caused by an insured peril.» (p.6)

This has a particular resonance in the context of sections 2408-2413 of the Civil Code of Québec. Sections 2408-2410 CCQ read as follows:

2408. The client, and the insured if the insurer requires it, is bound to represent all the facts known to him which are likely to materially influence an insurer in the setting of the premium, the appraisal of the risk or the decision to cover it, but he is not bound to represent facts known to the insurer or which from their notoriety he is presumed to know, except in answer to inquiries.

2409. The obligation respecting representations is deemed properly met if the representations are such as a normally provident insured would make, if they were made without material concealment and if the facts are substantially as represented.

2410. Subject to the provisions on statement of age and risk, any misrepresentation or concealment of relevant facts by either the client or the insured nullifies the contract at the instance of the insurer, even in respect of losses not connected with the risks so misrepresented or concealed.

From a more general perspective, the vast number of reports in various industry sectors that are currently published on diverse aspects of water and risks (see also previous blog about the CERES report on water risks in finance) illustrates the tension between inherent natural variability in hydrology and ecosystem dynamics on one hand, and increasing efforts to ensure constant and stable access to water and related natural resources as well as constant revenue streams from their exploitation on the other hand. As resources allocation and exploitation reach various peaks or thresholds, the possible impacts of related risks increase.