Court File and Parties

CITATION: Mitsios v. Aviva Insurance Company of Canada, 2008 ONCA 785

DATE: 20081121

DOCKET: C48544

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Simmons JJ.A.

BETWEEN:

Dan Mitsios

Applicant (Respondent)

and

Aviva Insurance Company of Canada

Respondent (Appellant)

Counsel:

Steven Stieber for the appellant

Renata K. Laubman and Jay Skukowski for the respondent (Mitsios)

Heard and endorsed: November 21, 2008

On appeal from the judgment of Justice Beth Anna Allen of the Superior Court of Justice dated February 19, 2008.

APPEAL BOOK ENDORSEMENT

[1] We have not been persuaded that Allen J. erred in finding that there was a duty to defend. There is no allegation in the statement of claim of an intent to injure. As was held in Non-Marine Underwriters, Lloyds of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 at para. 37, for the exclusion clause to apply there must be an intent to injure. On the basis of the statement of claim, this is not a case where the pleaded activity was inherently harmful. Accordingly, exclusion clause 1(e) did not apply.

[2] We are also satisfied that the respondent met the definition of employee for the purposes of the duty to defend. On the pleadings, the respondent was acting on behalf of the insured with respect to acts performed on behalf of the insured, since he was engaged in cleaning the premises at the time of the incident and was therefore an employee within the meaning of the policy.

[3] Accordingly the appeal is dismissed with costs fixed at $5000.00 inclusive of GST and disbursements.

"Marc Rosenberg J.A."