Court File and Parties

CITATION: Ross v. Lawyers' Professional Indemnity Company, 2011 ONCA 168

DATE: 20110302

DOCKET: C49866

COURT OF APPEAL FOR ONTARIO

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

E. Anthony Ross

Applicant (Appellant)

and

Lawyers’ Professional Indemnity Company

Respondent (Respondent in Appeal)

COUNSEL:

Oleh P. Vereshchak, for the appellant

Boyd Balogh, for the respondent

Heard and released orally: February 28, 2011

On appeal from the judgment of Justice Alfred J. O’Marra of the Superior Court of Justice dated December 12, 2008.

ENDORSEMENT

[1] The appellant, an Ontario lawyer and member of the Law Society of Upper Canada, appeals from the judgment of O’Marra J. of the Superior Court of Justice dated September 30, 2008. In that judgment, O’Marra J. dismissed the appellant’s application for a declaration that the respondent Lawyers’ Professional Indemnity Company (“LPIC”) had a duty to defend and indemnify him with respect to an action brought against him in Ontario by Michael Simanic, one of his former clients. The basis for the application judge’s decision was that the Ontario lawsuit did not relate to professional services with respect to the laws of Canada provided by the appellant and, accordingly, coverage under LPIC’s policy was not triggered.

[2] The appellant contends that the application judge erred in three respects: (1) he did not properly apply the principles of insurance policy interpretation to the circumstances of this case; (2) he did not properly focus on the pleadings in the Ontario action against the appellant—specifically, by failing to recognize that the professional services giving rise to the claim were those performed in the context of the Ontario action; and (3) he misinterpreted the words “with respect to the laws of Canada” in the LPIC policy.

[3] We do not accept these submissions. The application judge explicitly set out the governing principles of insurance policy interpretation. He also recognized, correctly, that “[w]here a question relates to an insurer’s duty to defend the insured the starting point is the assessment of the pleadings.” We can see no error in his analysis of either the LPIC policy or the pleadings in the Ontario action. In our view, the appellant’s professional services that gave rise to the claim were those he performed for the plaintiffs in St. Kitts.

[4] Finally, we agree with the application judge’s conclusion that all of the appellant’s representation or Mr. Simanic that gave rise to the latter’s Ontario action against the appellant related to the territory and the laws of St. Kitts and Nevis. Accordingly, as the application judge concluded, the appellant “was practicing the laws of St. Kitts and Nevis” and, accordingly, fell outside LPIC’s policy coverage.

[5] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $7,500, inclusive of disbursements and HST.

“J. C. MacPherson J.A.”

“J. MacFarland J.A.”

“Gloria Epstein J.A.”