CITATION: Brookfield Homes (Ontario) Limited v. Nova Plumbing & Heating Ltd., 2010 ONCA 791
DATE: 20101123
DOCKET: C52202
COURT OF APPEAL FOR ONTARIO
Doherty, Watt and Epstein JJ.A.
BETWEEN:
Brookfield Homes (Ontario) Limited
Plaintiff (Respondent)
and
Nova Plumbing & Heating Ltd.
Defendant (Appellant)
David A. Zuber, for the appellant
Gabrielle K. Kramer, for the respondent
Heard: November 18, 2010
On appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated May 5, 2010.
ENDORSEMENT
[1] We agree with the motion judge’s determination that Brookfield’s insurer was entitled to bring a subrogated claim against Nova, one of Brookfield’s subcontractors, in respect of damages caused at the work site by the negligence of an employee of Nova.
[2] On the motion, and again in this court, counsel took the court through the contract between Brookfield and Nova and Brookfield’s insurance policy with its insurer. Several paragraphs of the agreement between Nova and Brookfield make it clear that Nova assumed the risk of loss caused by Nova’s negligence at the job site. For example, para. 10 of the agreement provides:
- INDEMNITY: The Contractor [Nova] shall at all times shall defend, keep harmless and fully indemnify the Owner [Brookfield] and its servants, employees and agents, from and against all actions, suits, claims, demands, loss, costs, charges, damages and expense, brought or made against or incurred by the Owner, its servants, employees or agents, in any way relating to goods, materials, articles or equipment supplied or the supplying thereof or work performed, or the performing hereof, pursuant to this order or arising out of the subsequent use or operation of such goods, materials, articles, equipment or work. All property of the contractor kept or stored on the Site shall be so kept or stored at the risk of the Contractor only, and the Contractor shall hold the Owner harmless from any claims arising out of the damage to the same, including subrogation claims by the Contractor’s insurers. [Emphasis added.]
[3] We agree with counsel for the respondent that the terms of the agreement between Brookfield and Nova can inform the scope of the coverage provided under the insurance policy as it relates to any coverage afforded property in which Nova has an interest.
[4] The terms of the policy were carefully reviewed by the motion judge. He distinguished those terms from the terms of the policies in issue in the cases relied on by the appellant: see Commonwealth Construction Company Ltd. v. Imperial Oil (1978), 1976 CanLII 138 (SCC), 69 D.L.R. (3d) 558 (S.C.C.); Sylvan Industries v. Fairview Sheet Metal Works Ltd. (1992), 13 C.C.L.I. (2d) 18 (B.C.C.A.); Madison Developments Ltd. v. Plan Electric Co. (1997), 1997 CanLII 1277 (ON CA), 36 O.R. (3d) 80 (C.A.). We agree with the distinctions drawn by the motion judge.
[5] On the language of this policy, Nova was not an insured under the policy. The insurer’s responsibility for damage to Nova’s property was limited to the extent of Brookfield’s “legal liability for insured physical loss or damage” to Nova’s property. In this case, the damage was caused by Nova’s employees and Brookfield had no legal liability for any physical loss or damage to Nova’s property.
[6] The appeal is dismissed. Costs to the respondent fixed at $17,000, inclusive of disbursements and all applicable taxes.
“Doherty J.A.”
“David Watt J.A.”
“Gloria Epstein J.A.”