DATE: 20060302

DOCKET: C43832

COURT OF APPEAL FOR ONTARIO

RE:

DAVIS PETROLEUM EQUIPMENT LTD. and GILBERT LEO RIVARD (Respondents) – and – LOMBARD GENERAL INSURANCE COMPANY OF CANADA (Appellant)

BEFORE:

McMURTRY C.J.O., FELDMAN and LANG JJ.A.

COUNSEL:

W. Chalmers

for the appellant

G. Maille

for the respondent

HEARD & ENDORSED:

March 1, 2006

On appeal from the judgment of Mr. Justice R.P. Boissonneault of The Superior Court of Justice dated April 22, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The key issue in this appeal is whether the escape of pollutants took place “at or from any premises site or location which is or was at any time owned or occupied by, or rented or loaned to any Insured” so as to fall within the “Absolute Pollutions Exclusion” clause of the insurance policy. In our view, the mere presence of the respondent insured for a limited purpose on property occupied and controlled by others does not exclude the coverage provided to the respondent.

[2] We therefore conclude that the motions judge was correct in his finding that there is a duty to defend.

[3] The appellant conceded that the “testing” exclusion would not affect the outcome of this appeal.

[4] The appeal is therefore dismissed. The Respondent is entitled to costs fixed in the amount of $8,500.00.