COURT OF APPEAL FOR ONTARIO
DATE: 2002-05-09 DOCKET: C37451
RE: JOSEPH THOMPSON, DAWN THOMPSON and PATRICK THOMPSON (Plaintiffs) –and– DENISE WARRINER, KENNEDY HOUSE YOUTH SERVICES INC. and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Defendants (Appellants)) –and– ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA (Third Party (Respondent/Cross-Appellant))
BEFORE: WEILER, ABELLA and GOUDGE JJ.A.
COUNSEL: R. Steven Baldwin, for the defendants/appellants Robert B. Bell and Keith N. Batten, for the third party (respondent/cross-appellant)
HEARD: May 7, 2002
RELEASED ORALLY: May 7, 2002
On appeal from the judgment of Justice Richard G. Byers dated November 20, 2001.
ENDORSEMENT
[1] In our opinion, Byers J. did not err in granting summary judgment. Royal & SunAlliance has no duty to defend the claims against Kennedy House for the following reasons:
Royal & SunAlliance may rely on the abuse and harassment exclusion clause which clearly and unambiguously excludes liability for “molestation” and “physical or mental abuse”. This must encompass the sexual assault pleaded in this case.
The concurrent cause analysis in Derksen v. 539938 Ontario Ltd., [2001] S.C.C. 72 does not apply in this case. In Derksen, the exclusion clause excluded one cause of the injuries but did not exclude a second cause of the injuries which was entirely separate and stood alone. The supervision claims are a legal characterization rather more than a contributing cause of the injury. The injury would have been the same with or without the allegedly negligent supervision because it was caused by the sexual assault. Here, the exclusion speaks to claims arising out of the event or occurrence and excludes them. The supervision claims derive from the claim for sexual assault. The underlying elements of these claims are insufficiently disparate to render them unrelated. The supervision claims are subsumed into the intentional tort claim for the exclusion clause analysis.
The claims in negligence, breach of fiduciary duty and other claims are based on the alleged abuses committed by the employee of Kennedy House. The wording in Godonoaga v. Khatambakhsh (2000), 49 O.R. (3d) 22 (C.A.) precludes coverage only for the criminal acts or omissions of the insured. Here, liability was excluded by any insured.
[2] As there are no claims that, if successful, could potentially trigger indemnity, Royal & SunAlliance has no duty to defend.
[3] The appeal is therefore dismissed. We note the appellants’ concession with respect to the costs below. Without changing the costs order below but, in light of the concession, we are fixing the costs of the appeal at $3,000, inclusive of disbursements and G.S.T. in favour of Royal & SunAlliance.
Signed: “K.M. Weiler J.A.” “R.S. Abella J.A.” “S.T. Goudge J.A.”