Lloyd's Underwriters and HUB International lost their appeal to throw out a six-and-a-half-year-old coverage fight over two allegedly stolen eagle sculptures.
The British Columbia Court of Appeal, in HUB International Canada West ULC v. Forgotten Treasures International Inc., 2026 BCCA 230, released its decision on May 29, 2026, dismissing appeals by the insurer and broker defendants and keeping alive Forgotten Treasures International Inc.'s lawsuit for breach of contract, negligence, and breach of fiduciary duty.
The underlying dispute traces back to May 29, 2016. Forgotten Treasures' principal, Mr. Shore, said he was attacked by robbers who stole two sculptures as he was placing them in his car. One was a gold eagle valued at over $1,000,000. The other was a silver eagle worth some $50,000. Both were prizes in a treasure hunt the company ran to raise money for cancer research.
The Lloyd's policy carried a two-person accompaniment term. It excluded coverage for losses while the insured property was in transit, unless the property was in the close personal custody of the insured party together with an officer, independent contractor, designated employee or representative of the insured party. Mr. Shore alleged that another person, Ms. Merx, was with him at the time of the robbery in compliance with that term.
Forgotten Treasures submitted its claim on August 12, 2016. Lloyd's retained an independent adjuster, Mr. Mancuso, who obtained a statement from Ms. Merx that called into question whether she fit within the definition of the two-person accompaniment term and whether she was in fact accompanying Mr. Shore at the time of the robbery. Lloyd's denied the claim on October 12, 2016. The action was filed on May 25, 2018.
Forgotten Treasures secured a default judgment against Lloyd's in December 2018. It was set aside in April 2019, and a further appeal of that ruling was dismissed in November 2020. Apart from a list of documents and an amended pleading, little movement followed for years.
When Lloyd's and HUB applied to dismiss for want of prosecution, the chambers judge found the six-and-a-half-year delay inordinate and roughly the first five years inexcusable. Applying the framework from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473, she concluded dismissal was not in the interests of justice, describing the outcome as a "close call."
On appeal, Lloyd's and HUB argued the judge leaned too heavily on the absence of defence pressure, that other factors weighed in favour of dismissal, and that the lack of public importance should have counted against the plaintiff.
The Court of Appeal disagreed on each ground. Justice Riley, writing for the panel, found no palpable and overriding error of fact and no error in principle. The chambers judge had carefully weighed the relevant factors, and her view that the case was finely balanced did not justify appellate interference.
The Court of Appeal noted that a defendant has no obligation to move the plaintiff's case forward, but the defendant's inaction during lengthy delay may weigh against dismissal at the interests-of-justice stage. The chambers judge had noted the defendants did not seek a trial date, schedule examinations for discovery, or compel Ms. Merx's evidence through the Rule 7-5 procedure.
