COURT OF APPEAL FOR ONTARIO
RE:
LOMBARD GENERAL INSURANCE COMPANY (Applicant (Respondent in Appeal) – and – CGU INSURANCE COMPANY OF CANADA (Respondent (Appellant in Appeal))
BEFORE:
MOLDAVER, GILLESE and BLAIR JJ.A.
COUNSEL:
Harvey Poss
for the appellant
William S. Chalmers
for the respondent
HEARD & ENDORSED:
May 31, 2004
On appeal from the judgment of Justice Keith A. Hoilett of the Superior Court of Justice dated August 22, 2003.
A P P E A L B O O K E N D O R S E M E N T
1We agree with Hoilett J. that the CGU policy is a primary policy. We would simply refine that determination by defining it, more accurately, as a primary policy with an excess coverage clause. No issue is taken with the determination that the second Lombard policy is a true umbrella policy. In such circumstances, the law is clear that the primary policy with excess coverage ranks ahead of the umbrella policy. (See Trenton Cold Storage Ltd. v. St. Paul Fire and Marine Insurance Co., [2001] O.J. # 1835 Ont. C.A.)).
2We see no merit in the arguments that Lombard did not have standing to bring the application or that the issues in question were not appropriately dealt with by way of application.
3We would however, vary paragraph 1 of the judgment in issue by deleting it and replacing it with the wording found in paragraph 1 of Tab 25 of the Appeal Book. In all other respects, the appeal is dismissed.
4Costs to the respondent fixed at $9,000 inclusive of GST and disbursements.
