R.D.F. v. Co-operators General Insurance Co., (2004) 190 Man.R.(2d) 93 (CA)

• Judge: Steel, Hamilton and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 12, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 190 Man.R.(2d) 93 (CA);2004 MBCA 156

R.D.F. v. Co-op General (2004), 190 Man.R.(2d) 93 (CA);

    335 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. OC.033

The Public Trustee of Manitoba as litigation guardian of R.D.F. (applicant/respondent) v. The Co-operators General Insurance Company (respondent/appellant)

(AI 03-30-05697; 2004 MBCA 156)

Indexed As: R.D.F. v. Co-operators General Insurance Co.

Manitoba Court of Appeal

Steel, Hamilton and Freedman, JJ.A.

October 15, 2004.

Summary:

The plaintiff school division sued a student, asserting that the student started a fire on school grounds and negligently allowed the fire to spread thereby causing substantial damage. Alternatively, the plaintiff asserted that the student committed a trespass onto school property and was liable for the damages caused by the trespass. The student lived with his parents who held a homeowner's insurance policy. The student, by his litigation guardian, applied for a determination of whether his parents' insurer had a duty to defend the action.

The Manitoba Court of Queen's Bench, in a judgment reported at 176 Man.R.(2d) 316, held that the insurer had a duty to defend the action. The insurer appealed.

The Manitoba Court of Appeal dismissed the appeal.

Insurance - Topic 725

Insurers - Duties - Duty to defend - The plaintiff school division sued a student for damages for starting a fire and negligently allowing it to spread or, alternatively, trespass - The student's parents held a homeowner's insurance policy - The insurer asserted that the damage was caused intentionally since it flowed from an intentional tort and, accordingly, an exclusion clause in the policy applied and it did not have a duty to defend - Further, the clause was triggered by the student's criminal act - The Manitoba Court of Appeal affirmed that the insurer had a duty to defend - Even though the fire was intentionally started, the damages to the school might very well have been unforeseen physical consequences (i.e., they were not substantially certain) - Both the negligence claim and the trespass claim were properly pleaded - They were alternate claims - The negligence claim was not derivative of the trespass claim - The claims as pleaded raised, at minimum, a possibility that a claim within the policy would succeed.

Insurance - Topic 6638.1

Multi-peril property insurance - Household or homeowner's policies - Exclusions - Property damage from intentional or criminal acts - [See Insurance - Topic 725 ].

Cases Noticed:

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, dist. [para. 8].

Sansalone v. Wawanesa Mutual Insurance Co., [2000] 1 S.C.R. 627; 253 N.R. 95; 135 B.C.A.C. 255; 221 W.A.C. 255; 2000 SCC 25, refd to. [para. 8].

Nichols v. American Home Assurance Co. et al., [1990] 1 S.C.R. 801; 107 N.R. 321; 39 O.A.C. 63; 68 D.L.R.(4th) 321; [1990] I.L.R. 1-2583, refd to. [para. 11].

Liberty Mutual Insurance Co. v. Hollinger Inc. et al. (2004), 183 O.A.C. 146 (C.A.), refd to. [para. 17].

Sirois v. Saindon and Co-operative Fire & Casualty Co., [1976] 1 S.C.R. 735; 4 N.R. 343, refd to. [para. 22].

Newcastle (Town) v. Mattatall et al. (1988), 87 N.B.R.(2d) 238; 221 A.P.R. 238; 52 D.L.R.(4th) 356 (C.A.), refd to. [para. 22].

Board of Education of Long Lake School Division No. 30 of Saskatchewan v. Schatz (1986), 49 Sask.R. 244 (C.A.), refd to. [para. 22].

Devlin v. Co-operative Fire & Casualty Co. et al. (1978), 11 A.R. 271; 90 D.L.R.(3d) 444 (C.A.), refd to. [para. 22].

Buchanan v. Gan Canada Insurance Co. et al. (2000), 134 O.A.C. 189; 50 O.R.(3d) 89 (C.A.), refd to. [para. 25].

Thorne v. Royal & SunAlliance Insurance Co. of Canada (2003), 261 N.B.R.(2d) 119; 685 A.P.R. 119; 230 D.L.R.(4th) 587; 2003 NBCA 61, refd to. [para. 25].

Lee v. Townsend et al., [2002] O.T.C. 881, refd to. [para. 25].

R. v. East Crest Oil Co., [1945] S.C.R. 191, refd to. [para. 34].

Eisener v. Maxwell, [1951] 3 D.L.R. 345 (N.S.S.C.), refd to. [para. 37].

Straits Towing Ltd. et al. v. Walkem Machinery & Equipment Ltd. and Canadian Indemnity Co., [1976] 1 S.C.R. 309; 3 N.R. 523, refd to. [para. 47].

Stats v. Mutual of Omaha Insurance Co., [1978] 2 S.C.R. 1153; 22 N.R. 91, refd to. [para. 52].

Candler v. London & Lancashire Guarantee & Accident Co. of Canada et al., [1963] 2 O.R. 547; 40 D.L.R.(2d) 408 (H.C.), refd to. [para. 54, footnote 1].

Lambton Cartage & Warehousing Ltd. v. Barraclough et al. (1998), 86 O.T.C. 252; 10 C.C.L.I.(3d) 107 (Gen. Div.), refd to. [para. 58].

Hodgkinson v. Economical Mutual Insurance Co. (2003), 180 O.A.C. 177; 68 O.R.(3d) 587 (C.A.), refd to. [para. 59].

Authors and Works Noticed:

Dhanji, A., Title 23, Trespass to Land, in Rainaldi, Linda A., Remedies in Tort (1987 Looseleaf Ed.), vol. 3, para. 12 [para. 33]; note 2.1 [para. 34].

Osborne, Philip H., The Law of Torts (2nd Ed. 2003), c. 4-B [para. 31]; c. 4-D [para. 32].

Rainaldi, Linda A., Remedies in Tort (1987 Looseleaf Ed.), vol. 3, para. 12 [para. 33]; note 2.1 [para. 34].

Counsel:

P.G. Saranchuk and K.J. Muys, for the appellant;

J.S. Fergusson, for the respondent.

This appeal was heard on February 12, 2004, by Steel, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following judgment for the court on October 15, 2004.