Rocovitis v. Dominion of Canada General Insurance Co. [Indexed as: Rocovitis v. Dominion of Canada General Insurance Co.]

73 O.R. (3d) 735

[2004] O.J. No. 4326

Docket: C39594

Court of Appeal for Ontario

Moldaver, Sharpe JJ.A., Killeen J. (ad hoc)

October 21, 2004

Insurance -- Liability insurance -- Exclusions -- "Trade, profession or occupation" -- A taking up old carpet with R at R's home when fire broke out -- Negligence action against A's estate by R's estate allowed -- R's estate bringing action against A's insurer pursuant to s. 132 of Insurance Act -- Insurer taking position that coverage excluded under homeowner's policy as A was engaging in his "trade, profession or occupation" at time of fire -- Counsel for R's estate relying on policy and findings of trial judge in negligence action that A did occasional [page736] odd jobs for R for minimal payment and was not licensed to do that kind of work -- Insurer's motion for non-suit dismissed and action allowed -- Not all activities generating profits will be automatically classified as "business" activities -- A's handyman activities casual and irregular -- Exclusion clause not applying -- Insurance Act, R.S.O. 1990, c. I.8, s. 132.

NOTE: The catchlines above relate to a judgment of Sanderson J. of the the Superior Court of Justice. An appeal of this judgment to the Court of Appeal for Ontario (Moldaver, Sharpe JJ.A., Killeen J. (ad hoc)) was dismissed on October 21, 2003 49383 (ON SC), 2004, 63 O.R. (3d) 402. The endorsement of the court was as follows:

Timothy P. Bates, for appellant. Morton Greenglass, Q.C., for respondent.

[1] MOLDAVER J.A.: -- We have not been persuaded that there is any basis upon which we would interfere with the judgment under appeal. In our view, the trial judge did not err in law, either on the issue of onus or in her interpretation of the policy. Furthermore, the facts relied upon in para. 16 of the judgment were, in our view, integral to Somers J.'s judgment in the tort action. Those findings were pertinent to the expertise of Mr. Argerys and to the respective degrees of fault as between him and Ms. Rocovitis.

[2] The findings in question, outlined in para. 33 of the reasons, were capable of supporting the trial judge's conclusion that Mr. Argerys' activities on the day in question were "personal and fell within the grant of coverage" and that coverage was not excluded under clause 10 of the policy.

[3] In sum, while we agree with the trial judge's assessment that the case is a close one, we see no palpable and overriding error that would warrant our interference.

[4] Accordingly, the appeal is dismissed with costs to the respondent fixed at $15,000 inclusive of GST and disbursements.