DATE: 20060419

DOCKET: C44487

COURT OF APPEAL FOR ONTARIO

RE: Arthur Miersma and Phyllis Miersma (Respondents) – and – Pembridge Insurance Company (Appellant)

BEFORE: McMurtry C.J.O., Doherty and Moldaver JJ.A.

COUNSEL:

M. Van Dusen, for the appellant

Robert Reynolds, for the respondents

HEARD & ENDORSED: April 18, 2006

On appeal from the judgment of Mr. Justice A. deLotbinière Panet of the Superior Court of Justice dated October 18, 2005.

APPEAL BOOK ENDORSEMENT

[1] The application and the appeal proceeded on the basis that the insurance policy provided coverage for negligent misrepresentation subject to the exclusions contained in the policy. In our view, the applications’ judge properly determined that the statement of claim alleged the tort of negligent misrepresentation as a separate and distinct claim from that of breach of contract. In that circumstance the negligent misrepresentation claim could not be said to be derivative in the sense described in Scalera. It also serves to distinguish this case from Randhawa v. DaRosa and Graham v. Raposo where there was no allegation of any pre-contractual negligent misrepresentation. The appellants “disclaimer argument” based on the terms of the agreement of purchase and sale also fails because it addresses the merits of the litigation and not the appellants duty to defend.

[2] For the purposes of this appeal we are not satisfied that any of the exclusion clauses are sufficient to relieve the insurer appellant of the duty to defend.

[3] The appeal is therefore dismissed. The Respondents are entitled to their costs in the amount of $12,266.71.