COURT OF APPEAL FOR ONTARIO

DATE: 20010116

DOCKET: C34315

RE:

FRANKLIN CARWARDINE, by his Litigation Guardian WINSTON CARWARDINE, ANGELIQUE CARWARDINE and WINSTON CARWARDINE (Plaintiffs) –and– THE NORTHUMBERLAND CLARINGTON BOARD OF EDUCATION, C.G. ALLANSON BUSES INC., 511825 ONTARIO INC., c.o.b. as CONNOR GROUP HOMES, ROBERT CONNOR, ELAINE CONNOR, DAVID NAULLS, BEVERLY NAULLS and THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON (Defendants/C.G. Allanson Buses Inc., Appellant in Appeal) –and– THE GUARANTEE COMPANY OF NORTH AMERICA, 511825 ONTARIO INC., ROBERT CONNOR, ELAINE CONNOR, DAVID NAULLS, BEVERLY NAULLS and THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON (Third Parties/The Guarantee Company of North America, Respondent in Appeal)

BEFORE:

WEILER, LASKIN and CHARRON JJ.A.

COUNSEL:

William E. Baker, for the appellant C.G. Allanson Buses Inc.

W.H. Peter Madorin, Q.C. and Alison A. Gilmor, for the respondent The Guarantee Company of North America

HEARD:

January 10, 2001

RELEASED ORALLY:

January 10, 2001

On appeal from the judgment of Justice Michel Z. Charbonneau dated May 4, 2000.

E N D O R S E M E N T

[1] The appellant C.G. Allanson Buses Inc. (“Allanson Buses”) appeals from the dismissal of its motion for a declaration that the respondent The Guarantee Company of North America (“Guarantee”) is obliged to defend the claim against Allanson Buses in the main action and for an order allowing Allanson Buses its counsel of choice. The motions judge dismissed the motion on the basis that there was no nexus between the allegations of negligence in the pleadings and Allanson Buses’ ownership, use or operation of the insured vehicle.

[2] It is alleged in the pleadings that Allanson Buses, a school bus operator hired to transport the plaintiff student to and from school, failed to ensure that the plaintiff was safely on board. It is further alleged that as a result of such failure, the plaintiff student was left exposed to severe weather conditions resulting in the amputation of both of his legs. The insurance policy in question provides coverage for loss or damage to the insured arising from the ownership and directly or indirectly from the use or operation of the insured automobile and resulting in bodily injury to any person.

[3] In our view, it is possible that the duty to indemnify may be triggered if the allegations in the pleadings are made out at trial and, consequently, there is a duty to defend under the policy. The appeal is therefore allowed, the order is set aside and the appellant’s motion for a declaration that Guarantee is obliged to defend the claim brought against it is granted.

[4] On the question of separate representation, it is our view that the pleadings do not disclose a conflict sufficient to warrant making an order as requested. We would not interfere with the dismissal of that part of the motion. However, our conclusion on this point is without prejudice to Allanson Buses’ right to renew its motion based on further evidence if so advised at a later stage in the proceedings.

[5] Allanson Buses is entitled to be fully indemnified for its costs on a solicitor-and-client basis for all proceedings, including this appeal, until such time as Guarantee serves and files a notice of change of solicitors and takes over the defence on behalf of Allanson Buses.

(signed) “K. W. Weiler J.A.”

(signed) “John Laskin J.A.”

(signed) “Louise Charron J.A.”