Lemieux v. Laclair, 2008 ONCA 263

CITATION: Lemieux v. Laclair, 2008 ONCA 263

DATE: 20080409

DOCKET: C47468

COURT OF APPEAL FOR ONTARIO

MOLDAVER, CRONK and BLAIR JJ.A.

BETWEEN:

SHARON LEMIEUX

Plaintiff

and

ARTHUR LACLAIR, AUREL LEBELL and YVON MARTIN

Defendant (Appellant)

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Third Party(Respondent)

Bruce F. Simpson for the appellant, Aurel Lebell

Thomas Barber for the respondent Co-Operators General Insurance Company

Heard and endorsed: April 9, 2008

On appeal from the judgment of Justice Timothy Ray of the Superior Court of Justice dated June 28, 2007.

APPEAL BOOK ENDORSEMENT

[1] On the basis of the plaintiff’s pleading, we cannot rule out the possibility that the appellant’s alleged statements were made carelessly, without the intention to cause harm or the knowledge that harm would result. As the Supreme Court noted in Nichols v. American Home Assurance Co. “It is not necessary to prove that the obligation to indemnify will in fact arise in order to trigger the duty to defend; the mere possibility that a claim within the policy may succeed suffices.”

[2] In our view, that principle applies in this case and triggers a duty to defend.

[3] Accordingly, the appeal is allowed and the motion judge’s order is set aside.

[4] Costs to the appellant here and below fixed at $7,500 inclusive of GST and disbursements.