1540039 Ontario Ltd. v. Farmers' Mutual Insurance Co.,

• Jurisdiction: Ontario
• Judge: Feldman,Hoy,Spence
• Neutral Citation: 2012 ONCA 210
• Subject Matter: INSURANCE
• Citation: 2012 ONCA 210,(2012), 291 O.A.C. 16 (CA),291 OAC 16,(2012), 291 OAC 16 (CA),291 O.A.C. 16
• Date: 15 February 2012
• Court: Court of Appeal (Ontario)

1540039 Ont. v. Farmers Mutual (2012), 291 O.A.C. 16 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AP.007

1540039 Ontario Limited (applicant/appellant) v. Farmers' Mutual Insurance Company (Lindsay) (respondent/respondent)

(C54167; 2012 ONCA 210)

Indexed As: 1540039 Ontario Ltd. v. Farmers' Mutual Insurance Co.

Ontario Court of Appeal

Feldman and Hoy, JJ.A., and Spence, J.(ad hoc)

March 30, 2012.

Summary:

A worker died electrocuted while working on a sign owned by a tenant of a commercial plaza and installed on a pylon located in front of the plaza. The worker's family sued the plaza's owner for negligence respecting the sign's placement and safety. The owner, which had its own comprehensive general liability (CGL) policy and was a named insured on the tenant's CGL policy, applied for a declaration that the tenant's insurer was obliged to share in the owner's defence.

The Ontario Superior Court dismissed the application. The owner appealed. At issue was whether the application judge erred in failing to consider extrinsic evidence of the underlying facts, which the owner characterized as undisputed, in determining whether the tenant's insurer had a duty to defend the owner.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 725

Insurers - Duties - Duty to defend - A worker died electrocuted while working on a sign owned by a tenant of a commercial plaza and installed on a pylon located in front of the plaza - The worker's family (plaintiffs) sued the plaza's owner for negligence respecting the sign's placement and safety - The owner, which had its own comprehensive general liability (CGL) policy and was a named insured on the tenant's CGL policy, applied for a declaration that the tenant's insurer was obliged to share in the owner's defence - Extrinsic affidavit evidence was offered - This evidence indicated that the tenant had engaged the worker's alleged employer to do the work on the sign and that the alleged employer hired the worker - The application judge declined to consider this evidence and dismissed the application - The Ontario Court of Appeal upheld the decision - The extrinsic evidence would not have supported a duty to defend where the plaintiffs' claim against the owner was based on its conduct as owner and occupier of the plaza and not as landlord of the premises leased to the tenant - See paragraphs 30 to 36.

Cases Noticed:

Monenco Ltd. et al. v. Commonwealth Insurance Co. et al., [2001] 2 S.C.R. 699; 274 N.R. 84; 155 B.C.A.C. 161; 254 W.A.C. 161; 2001 SCC 49, consd. [para. 25].

Meadows v. Meloche Monnex Insurance Brokers Inc. (2010), 268 O.A.C. 44; 102 O.R.(3d) 312; 2010 ONCA 394, refd to. [para. 25].

Picken (Jon) Ltd. et al. v. Guardian Insurance Co. of Canada (1993), 66 O.A.C. 39 (C.A.), refd to. [para. 29].

Hope (R.W.) Ltd. v. Dominion of Canada General Insurance Co. (2001), 154 O.A.C. 7; 57 O.R.(3d) 425 (C.A.), refd to. [para. 29].

Trafalgar Insurance Co. of Canada v. Imperial Oil Ltd. - see Hope (R.W.) Ltd. v. Dominion of Canada General Insurance Co.

Cooper v. Farmer's Mutual Insurance Co. (2002), 159 O.A.C. 111; 59 O.R.(3d) 417 (C.A.), refd to. [para. 29].

Halifax Insurance Co. of Canada v. Innopex Ltd. et al. (2004), 190 O.A.C. 356; 72 O.R.(3d) 522 (C.A.), refd to. [para. 29].

Authors and Works Noticed:

Brown, Craig, and Donnelly, Thomas, Insurance Law in Canada (2002), looseleaf, p. 18-20 [para. 26].

Hilliker, Gordon, Liability Insurance Law in Canada (5th Ed. 2011), p. 104 [para. 25].

Counsel:

David Zuber and James S. Schacter, for the appellant;

William G. Scott, for the respondent.

This appeal was heard on February 15, 2012, by Feldman and Hoy, JJ.A., and Spence, J.(ad hoc), of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Hoy, J.A., and released on March 30, 2012.