Snaak v. Dominion of Canada General Insurance Co., (2002) 158 O.A.C. 72 (CA)

• Judge: Austin, Moldaver and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 27, 2002
• Jurisdiction: Ontario
• Citations: (2002), 158 O.A.C. 72 (CA)

Snaak v. Dominion of Can. (2002), 158 O.A.C. 72 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AP.047

Jeffrey Snaak, by his Litigation Guardian, Desiree Snaak, William Snaak and Desiree Snaak (plaintiffs/respondents) v. The Dominion of Canada General Insurance Company (defendant/appellant)

(C36897)

Indexed As: Snaak v. Dominion of Canada General Insurance Co.

Ontario Court of Appeal

Austin, Moldaver and MacPherson, JJ.A.

April 19, 2002.

Summary:

Jeffrey Snaak and a group of other students allegedly attacked and injured Fleming on school property. Fleming and his parents sued Jeffrey and his parents, among others. The claim against Jeffrey's parents alleged that they were negligent in failing to supervise, discipline and control their son. The Snaaks' insurer under a homeowner's insurance policy claimed that it did not have a duty to defend the action. The Snaaks sued for a declaration that the insurer had a duty to defend them in the action, they had a right to choose their own counsel and the insurer had a duty to indemnify them for their legal costs.

The Ontario Superior Court, in a decision reported at [2001] O.T.C. 623, held that the insurer did not have a duty to defend Jeffrey because the policy excluded intentional acts. However, the insurer was obligated to defend the negligence claim against Jeffrey's parents. The Snaaks were not entitled to choose their own counsel. The insurer appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 725

Insurers - Duties - Duty to defend - Jeffrey Snaak and others allegedly attacked and injured Fleming - Fleming and his parents sued, among others, Jeffrey's parents, alleging that they were negligent in failing to supervise, discipline and control Jeffrey - The Snaaks' insurer under a homeowner's insurance policy claimed that it did not have a duty to defend Jeffrey's parents - The policy excluded claims for injury or damage resulting from "an intentional or criminal act by any person or any named insured who is insured by this policy" - The trial judge held that the insurer had a duty to defend Jeffrey's parents - The exclusion clause was ambiguous and had to be interpreted in favour of the insured - "Objectively construed, one possible interpretation of the exclusion wording was that only the person who commits the intentional tort is excluded from coverage" - The Ontario Court of Appeal affirmed the trial judge's decision.

Insurance - Topic 1856

The insurance contract - Interpretation of contract - Exclusions - [See Insurance - Topic 725 ].

Insurance - Topic 1861

The insurance contract - Interpretation of contract - Contra proferentem rule - Ambiguity construed against insurer - [See Insurance - Topic 725 ].

Insurance - Topic 6824

Liability insurance - Homeowner's comprehensive policy - Exclusions - Intentional acts - [See Insurance - Topic 725 ].

Cases Noticed:

Lloyd's of London v. Scalera, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161, refd to. [para. 18].

Godonoaga v. Khatambakhsh et al. (2000), 132 O.A.C. 391; 49 O.R.(3d) 22 (C.A.), folld. [para. 19].

Sheppard v. Co-operators General Insurance Co. (1997), 99 O.A.C. 390; 33 O.R.(3d) 362 (C.A.), refd to. [para. 24].

G.P. v. D.J., [2001] O.T.C. 52 (Sup. Ct.), consd. [para. 29].

Wilkieson-Valiente v. Wilkieson et al., [1996] I.L.R. 1-3351 (Ont. Gen. Div.), consd. [para. 29].

Counsel:

Paul Daffern and Andy Cassolato, for the respondents;

Peter Boeckle and Christopher Morrison, for the appellant.

This appeal was heard on February 27, 2002, by Austin, Moldaver and MacPherson, JJ.A., of the Ontario Court of Appeal. On April 19, 2002, MacPherson, J.A., delivered the following decision for the Court of Appeal.