Johnston v. Zurich Ins. Co., (1997) 26 O.T.C. 182 (GD)

• Judge: McDermid, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 19, 1997
• Jurisdiction: Ontario
• Citations: (1997), 26 O.T.C. 182 (GD)

Johnston v. Zurich Ins. Co. (1997), 26 O.T.C. 182 (GD)

MLB headnote and full text

Ross Stewart Johnston (plaintiff) v. Zurich Insurance Company (defendant)

(File No. 5231/90)

Indexed As: Johnston v. Zurich Insurance Co.

Ontario Court of Justice

General Division

McDermid, J.

February 19, 1997.

Summary:

The insured's home was destroyed by fire. The insurer denied the insured's claim on the grounds that (1) the insured deliberately set the fire or (2) the insured failed to disclose a material risk (that he operated an antique buying and selling business on the premises). The insured sued to enforce his claim under the policy.

The Ontario Court (General Division) allowed the action. The insurer failed to discharge the burden of proving arson. The court was satisfied that the fire was electrical in nature. The court held that the insured did not operate a commercial enterprise on the premises and that any activity respecting antiques did not increase the risk beyond what was normal for residential premises. The court held that the insured was entitled to replacement cost under the policy.

Insurance - Topic 2103

The risk - Change in the risk - Whether a change affected the risk - See paragraphs 23 to 32.

Insurance - Topic 5592

Fire insurance - The risk or perils - Material misdescriptions and changes - Change of use - See paragraphs 23 to 32.

Insurance - Topic 5853

Fire insurance - The loss - Measure of - Replacement cost - See paragraphs 33 to 39.

Insurance - Topic 6046

Fire insurance - Defences - Deliberate act by insured - General - See paragraphs 5 to 22.

Insurance - Topic 6047

Fire insurance - Defences - Deliberate act by insured - Standard of proof - See paragraph 6.

Cases Noticed:

Hanes v. Wawanesa Mutual Insurance Co. (1963), 36 D.L.R.(2d) 718 (S.C.C.), refd to. [para. 6].

Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 6].

Hodge's Case (1838), 168 E.R. 1136, refd to. [para. 7].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.C.(2d) 18; 74 D.L.R.(3d) 731; 37 C.R.N.S. 1, refd to. [para. 7].

Tolfree v. Toronto Harbour Commissioners et al., [1936] O.W.N. 356 (H.C.), refd to. [para. 24].

Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Co. et al. (1992), 99 Sask.R. 84; 8 C.C.L.I.(2d) 198 (Q.B.), refd to. [para. 35].

Shinkaruk Enterprises Ltd. et al. v. Commonwealth Insurance Co. et al. (1994), 120 Sask.R. 148; 68 W.A.C. 148; 22 C.C.L.I.(2d) 209 (C.A.), refd to. [para. 35].

Hoar Estate, B.I.T.S. Ltd. and Sam Realty Ltd. v. Hudson Bay Insurance Co., [1980] I.L.R. 1-7247; 30 N.B.R.(2d) 351; 70 A.P.R. 351 (C.A.), refd to. [para. 35].

Authors and Works Noticed:

National Fire Prevention Manual for the Determination of Electrical Fire Causes, generally [para. 15].

Counsel:

P.B. Morrissey and R. Lomax, for the plaintiff;

W. Woodward and R.W. Vitols, for the defendant.

This action was heard on September 26- 27, 30 and October 1-2, 1996, and January 6-10 and 14-16, 1997, before McDermid, J., of the Ontario Court (General Division), whose following judgment was released on February 19, 1997.