DATE: 20031016

DOCKET: C40139

COURT OF APPEAL FOR ONTARIO

RE:

ECONOMICAL MUTAL INSURANCE COMPANY (Applicant (Appellant)) – and – JUDITH ANNE MARION WYE (Respondent (Respondent in appeal))

BEFORE:

McMURTRY C.J.O., GOUDGE AND GILLESE JJ.A.

COUNSEL:

Randall B. Carter and Curtis W. Schafer

for the appellant

Michael Laplante

for the respondent

HEARD:

October 8, 2003

On appeal from the judgment of Justice David Marshall of the Superior Court of Justice dated May 6, 2003.

E N D O R S E M E N T

Released Orally October 8, 2003

[1] In our view the claim against the insured clearly asserts careless conduct on her part causing harm. This claim is not derivative of the fraud alleged against her. These claims are, in the language of Scalera, clearly separable.

[2] Nor can it be said that the exclusion clause put forward by the appellant squarely covers the claim pleaded against the insured. That claim does not rely on care, custody or control on her part.

[3] Finally we find no merit in the appellant’s notice argument. The motions judge found no prejudice to the appellant and we agree.

[4] The appeal must be dismissed. Costs fixed at $7,000.

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“E.E. Gillese J.A.”