COURT OF APPEAL FOR ONTARIO
RE:
ECONOMICAL MUTAL INSURANCE COMPANY (Applicant (Appellant)) – and – JUDITH ANNE MARION WYE (Respondent (Respondent in appeal))
BEFORE:
McMURTRY C.J.O., GOUDGE AND GILLESE JJ.A.
COUNSEL:
Randall B. Carter and Curtis W. Schafer
for the appellant
Michael Laplante
for the respondent
HEARD:
October 8, 2003
On appeal from the judgment of Justice David Marshall of the Superior Court of Justice dated May 6, 2003.
E N D O R S E M E N T
Released Orally October 8, 2003
1In our view the claim against the insured clearly asserts careless conduct on her part causing harm. This claim is not derivative of the fraud alleged against her. These claims are, in the language of Scalera, clearly separable.
2Nor can it be said that the exclusion clause put forward by the appellant squarely covers the claim pleaded against the insured. That claim does not rely on care, custody or control on her part.
3Finally we find no merit in the appellant’s notice argument. The motions judge found no prejudice to the appellant and we agree.
4The appeal must be dismissed. Costs fixed at $7,000.
“R.R. McMurtry C.J.O.”
“S.T. Goudge J.A.”
“E.E. Gillese J.A.”