Board of Education of Long Lake School Division No. 30 v. S., I. and Saskatchewan Government Insurance, (1986) 49 Sask.R. 244 (CA)

• Judge: Tallis, Wakeling and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 03, 1986
• Jurisdiction: Saskatchewan
• Citations: (1986), 49 Sask.R. 244 (CA);1986 CanLII 3292 (BS SC);1986 CanLII 3292 (SK CA);[1986] 5 WWR 355;18 CCLI 232;49 Sask R 244

Long Lake School Bd. v. S. (1986), 49 Sask.R. 244 (CA)

MLB headnote and full text

Board of Education of the Long Lake School Division No. 30 of Saskatchewan (plaintiff/respondent) v. S. and I. (defendants/respondents) and Saskatchewan Government Insurance (third party/appellant)

(No. 8517)

Indexed As: Board of Education of Long Lake School Division No. 30 v. S., I. and Saskatchewan Government Insurance

Saskatchewan Court of Appeal

Tallis, Wakeling and Sherstobitoff, JJ.A.

July 3, 1986.

Summary:

The defendants S. and I., aged 14 and 13, broke into a school and vandalized it. A fire broke out, causing considerable damage. The school board sued S. and I. for damages. The action against I. was dismissed. S. claimed indemnity from his insurer as a third party. The insurer denied liability on the ground that the claim was excluded under the policy and also pursuant to s. 121(1) of the Saskatchewan Insurance Act, because S. committed a criminal act with intent to bring about the loss or damage.

The Saskatchewan Court of Queen's Bench in a decision reported at 33 Sask.R. 18, allowed the school board's action against S.. The court held that S. did not commit a criminal act and therefore the third party insurer was liable under the policy. The insurance company appealed the issue of liability and the insured S. appealed the denial of his solicitor-client costs.

The Saskatchewan Court of Appeal, Wakeling, J.A., dissenting, dismissed the insurer's appeal and allowed S. appeal on costs.

Insurance - Topic 768

Insurers - Liability - General - Costs - Solicitor-client costs - An insured claimed solicitor-client costs from his insurer pursuant to a clause in the insurance policy which provided that the insurer would pay "reasonable expenses, court costs ..." - The trial judge dismissed the insured's claim - The Saskatchewan Court of Appeal held that while the phrase "court costs" did not include solicitor-client costs, they fell within the meaning of "reasonable expenses" in the policy; therefore, the insurer was liable - See paragraphs 23 to 25.

Insurance - Topic 3303

Payment of insurance proceeds - Actions - Defences - Criminal act by insured to bring about loss or damage - Under s. 121 of the Saskatchewan Insurance Act a criminal act by an insured with intent to cause loss or damage barred an insurance claim - An insured broke into a school and vandalized it - Matches negligently lit by the insured started a fire, causing damage - The insured did not immediately flee and tried to extinguish the fire - No arson charges were laid - The Saskatchewan Court of Appeal upheld the decision of the trial judge that the insured's act of starting the fire was not criminal under s. 121, because it was not wilful within s. 386(1) of the Criminal Code or intentional - See paragraphs 20 to 22.

Practice - Topic 8800

Appeals - General principles - Duty of appeal court regarding findings of fact by a trial judge - The Saskatchewan Government Insurance was held liable under an insurance policy for damage to a school - The school burned when two youths broke in and vandalized it and accidently caused a fire - The insurance company appealed the trial judge's finding of fact on the intention of the insured - The Saskatchewan Court of Appeal dismissed the appeal - The court held that an appeal court will not interfere with a finding of fact by a trial judge where the trial judge has made no palpable or overriding error - See paragraphs 3 to 19.

Practice - Topic 8800

Appeals - General principles - Duty of appeal court regarding findings of fact by a trial judge - The Saskatchewan Court of Appeal set out five principles respecting appeals of findings of fact by a trial judge - See paragraph 16.

Cases Noticed:

Horseshoe Creek Farms Ltd. v. Sterling Structures Co. Ltd. (1982), 15 Sask.R. 57, consd. [para. 5].

Annable v. Coventry (1912), 46 S.C.R. 573, consd. [para. 8].

Schreiber Brothers Limited v. Currie Products Limited, [1980] 2 S.C.R. 78; 31 N.R. 335, appld. [para. 8].

Prudential Trust Company Limited v. Forseth, [1960] S.C.R. 210, consd. [para. 9].

S.S. Hontestroom v. S.S. Sagaporack, [1927] A.C. 37, appld. [paras. 9, 58].

Powell v. Streatham Manor Nursing Home, [1935] A.C. 243, appld. [para. 10].

Stein v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, appld. [para. 12].

Lewis v. Todd, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R.(3d) 257; 14 C.C.L.T. 294, refd to. [para. 13].

Taylor v. Ankenman and Jaegli Enterprises Ltd., [1981] 2 S.C.R. 2; 40 N.R. 4, refd to. [paras. 13 and 28].

Doerner v. Bliss & Laughlin Industries Incorporated, [1980] 1 S.C.R. 865; 34 N.R. 168, refd to. [para. 13].

Beaudoin-Daigneault v. Richard and Registrar of Registration Division, [1984] 1 S.C.R. 2; 51 N.R. 288, consd. [para. 14].

Hood v. Hood, [1972] S.C.R. 244, consd. [para. 15].

Latour v. R., [1951] S.C.R. 19, refd to. [para. 17].

Straits Towing Ltd. et al. v. Walkem Machinery and Equipment and Canadian Indemnity Company Ltd., [1976] 1 S.C.R. 309; 3 N.R. 523, refd to. [para. 20].

Mutual of Omaha Insurance Company v. Stats, [1978] 2 S.C.R. 1153; 22 N.R. 91, refd to. [para. 20].

Devlin v. Co-operative Fire and Casualty Company (1979), 90 D.L.R.(3d) 444, refd to. [para. 21].

Wawanesa Mutual Insurance Company v. Thomas, [1982] I.L.R. 597, refd to. [para. 21].

Service Employees International Union v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, refd to. [para. 30].

Hallberg v. Canadian National Railway Company (1955), 16 W.W.R.(N.S.) 539, refd to. [para. 59].

Statutes Noticed:

Court of Appeal Act, R.S.S. 1978, c. 42, sect. 8 [paras. 7, 17, 31].

Saskatchewan Insurance Act, R.S.S. 1978, c. S-26, sect. 121(1) [paras. 1, 20, 22, 46, 60].

Counsel:

K. Stevenson, for the appellant, Saskatchewan Government Insurance;

R. Laing, for the Board;

K. Noble, for S.

This appeal was heard before Tallis, Wakeling and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. On July 3, 1986, the decision of the Court of Appeal was delivered and the following opinions filed:

Sherstobitoff, J.A. (Tallis, J.A., concurring) - see paragraphs 1 to 26;

Wakeling, J.A., dissenting - see paragraphs 27 to 60.