Court of Appeal for Ontario

Citation: 1092072 Ontario Inc. v. Ing Insurance Company of Canada, 2009 ONCA 464

Date: 2009-06-04

Docket: C49610

Before: Winkler C.J.O., MacFarland and LaForme JJ.A.

Between:

1092072 Ontario Inc., c.o.b. Elfe Juvenile Products, 1029894 Ontario Inc., c.o.b. WalkerWorks, Isis Inc., Cowall Inc. and Rollerdrome Inc.

Plaintiffs (Appellants)

and

GCAN Insurance Company (formerly Gerling Canada Insurance Company), ING Canada Inc., Ing Insurance Company of Canada, Wyndham, Norin & Weiser Insurance Services Inc., Joseph D’Onofrio et Associes Inc., Paul D’Onofrio, Marco D. D’Onofrio, Zinaida Bauza D’Onofrio, Groupe D’Onofrio and Zinaida Bauza D’Onofrio, as Estate of Joseph D’Onofrio, Deceased

Defendants (Respondents)

Counsel:

Melvyn L. Solmon and Nancy Tourgis, for the appellants

Scott Maidment and Jeffrey Levine, for the respondents ING

Mark M. O’Donnell and Jayson W. Thomas, for the respondents D’Onofrio

Harvey Klein and Eli Pullan, for the respondents GCAN

Heard and released orally: May 1, 2009

On appeal from the orders of Justice Faye McWatt of the Superior Court of Justice dated October 10, 2008 and December 10, 2008.

ENDORSEMENT

[1] The plaintiffs’ claims against the defendants are for breach of contract, fraudulent and or negligent misrepresentation. In a nutshell the claims arise from the fact that an umbrella policy of liability coverage lapsed between October of 2002 and January 2005. During this period in time both the plaintiffs and their customers relied on certificates of insurance issued through the plaintiffs’ broker which purported to evidence existing insurance coverage and for which coverage the plaintiffs had paid premiums.

[2] GCAN from November 1996 through October 2002 provided umbrella liability coverage excess to and conditional upon underlying primary coverage with limits of $1,000,000.00. When the policy lapsed and was not renewed the position of GCAN is set out at paragraph 4 of its factum. ING’s involvement is based on its investment in Joseph D’Onofrio and Associates Inc. ING owned shares of Joseph D’Onofrio and Associates.

[3] The D’Onofrio defendants are brokers and successors to Wyndham, Norin & Weiser who were the plaintiffs’ insurance brokers prior to 2000. The plaintiffs’ claims against the defendants are for the failure to provide insurance coverage to those companies during the period when the policy lapsed. There are no known claims by third parties against the plaintiffs at this time to which such a policy, had one been in place, would have responded, nor are any of the plaintiffs’ customers plaintiffs in this proceeding.

[4] The plaintiffs’ claims against the defendants are for breach of contract. All of the contracts between the plaintiffs and the defendants were completed in Quebec and while the plaintiff corporations were incorporated in Ontario, they do business across Canada and their directing mind, Mr. Burn, is in Montreal. Any presence in Ontario is insignificant at this time.

[5] The central core of the lawsuit concerns contracts and representations made in Quebec. The plaintiffs purport to characterize this action as though the plaintiffs’ customers were plaintiffs and they are not. They focus on the alleged misrepresentation of the certificates to the customers essential to the lawsuit. I repeat the customers are not plaintiffs. All of the alleged misrepresentations central to this lawsuit happened in Quebec and between the plaintiffs and the named defendants. The record overwhelmingly satisfies us that the motion judge reached the proper result on either the jurisdiction or the forum conveniens test. We see no legal error nor any palpable and overriding error in any of the proper or relevant factual evidence before her.

[6] The appeal is dismissed.

[7] The costs will be fixed at $8,000 for GCAN $12,000, for the respondents D’Onofrio and $12,000 for the respondents ING all on a partial indemnity scale and inclusive of disbursements and G.S.T.

“W. Winkler C.J.O.”

“J. MacFarland J.A.”

“H. S. LaForme J.A.”