Lemieux v. Laclair, 2008 ONCA 263
COURT OF APPEAL FOR ONTARIO
MOLDAVER, CRONK and BLAIR JJ.A.
BETWEEN:
SHARON LEMIEUX
Plaintiff
and
ARTHUR LACLAIR, AUREL LEBELL and YVON MARTIN
Defendant (Appellant)
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Third Party(Respondent)
Bruce F. Simpson for the appellant, Aurel Lebell
Thomas Barber for the respondent Co-Operators General Insurance Company
Heard and endorsed: April 9, 2008
On appeal from the judgment of Justice Timothy Ray of the Superior Court of Justice dated June 28, 2007.
APPEAL BOOK ENDORSEMENT
1On the basis of the plaintiff’s pleading, we cannot rule out the possibility that the appellant’s alleged statements were made carelessly, without the intention to cause harm or the knowledge that harm would result. As the Supreme Court noted in Nichols v. American Home Assurance Co. “It is not necessary to prove that the obligation to indemnify will in fact arise in order to trigger the duty to defend; the mere possibility that a claim within the policy may succeed suffices.”
2In our view, that principle applies in this case and triggers a duty to defend.
3Accordingly, the appeal is allowed and the motion judge’s order is set aside.
4Costs to the appellant here and below fixed at $7,500 inclusive of GST and disbursements.