COURT OF APPEAL FOR ONTARIO
Gillese, Benotto and Roberts JJ.A.
BETWEEN
Hassan Hojjatian and Mitra Kermani
Plaintiffs (Appellants)
and
Intact Insurance Company, Axa Insurance
Defendants (Respondents)
Mitra Kermani, in person
Jeffrey Goit, for the respondents
Heard: November 25, 2016
On appeal from the order of Justice S.A.Q. Akhtar of the Superior Court of Justice, dated April 6, 2016, with reasons reported at 2016 ONSC 2318.
ENDORSEMENT
1The appellants appeal the dismissal of their action for indemnity under their insurance contract with the respondents, in relation to water damage to their home.
2The motions judge dismissed their motion for summary judgment and their action because he found that the water damage to the appellants’ home was not covered under their insurance contract with the respondents.
Preliminary issue
3As a preliminary issue, Ms. Kermani submitted that Benotto J.A. should recuse herself from hearing this appeal because she had sat on previous appeals involving the appellants, their house and their mortgagee.
4We dismissed the appellants’ request. We are satisfied that there is no conflict of interest which precludes Benotto J.A. from hearing this appeal. The appellants’ other appeals involved the striking out of the appellants’ claim on the basis that the pleadings showed no reasonable cause of action.
Appeal
5Turning to the appeal, the appellants submit that the motions judge erred in finding that the water damage was excluded under their insurance contract. Specifically, they say that the ground and surface water exclusions in the contract do not apply to heavy rainwater, which they maintain contributed to the water damage in this case, along with the sudden escape of water from a leak in the plumbing and, raised for the first time on appeal, a sewer back-up. Further, again for the first time on appeal, they submit that they had extended insurance coverage for this kind of water damage under the Gold Key Plus Extension to their contract. Finally, they argue that the motions judge erred in dismissing the claim for punitive damages.
6We do not accept these submissions.
7First, it was open to the motions judge to accept the expert opinion evidence, including the evidence of the appellants’ experts, that the cause of the water damage to the appellants’ property was the ongoing seepage of ground or surface waters into the house caused by pre-existing wear and tear and construction defects, and other deficiencies in the property, including damaged weeping and shower tiles, and inadequate exterior grading. The appellants’ insurance contract expressly excludes damage caused by this kind of water seepage.
8Further, the appellants did not raise before the motions judge the allegations that the water damage was caused by a sewer back-up or that they had extended coverage under the Gold Key Plus Extension. Aside from the fact that the appellants should not be permitted to raise on appeal issues that were not raised before the motions judge, the appellants have provided no support for these allegations. First, there is no evidence that the water damage was caused by a sewer back-up. Moreover, the Gold Key Plus Extension documentation included in the appeal materials clearly does not provide any additional coverage or modify the existing coverage or exclusions, in relation to water damage under the appellants’ insurance contract.
9Finally, there is no basis for disturbing the motions judge’s dismissal of the claim for punitive damages.
10As a result, we see no reason to interfere with the motions judge’s decision.
Disposition
11The appeal is dismissed.
12Costs are awarded to the respondents in the amount of $5,000, inclusive of disbursements and HST.
“E.E. Gillese J.A.”
“M.L. Benotto J.A.”
“L.B. Roberts J.A.”
