CITATION: Rashid v. Intact Insurance Company, 2011 ONCA 806

DATE: 20111219

DOCKET: C53684

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin J.A. and Pardu J. (ad hoc)

BETWEEN

Shnaw Rashid

Appellant (Plaintiff)

and

Intact Insurance Company

Respondent (Defendant)

Maurice Benzaquen, for the appellant (plaintiff)

Michael Burgar respondent (defendant)

Heard and released orally: December 8, 2011

On appeal from the order of Justice Whitten of the Superior Court of Justice dated March 14, 2011.

ENDORSEMENT

[1] We agree with the motion judge that the respondent does not have a duty to defend.

[2] Whether or not an insurer will have a duty to provide an insured with a defence to a particular claim is governed by the causes of action pleaded in the statement of claim.

[3] The landlord’s statement of claim pleads three causes of action against the appellant:

a) arson, related to a fire that occurred in the middle of the night on August 31 and September 1, 2009;

b) breach of contract for failing to comply with the terms of the lease and/or the general security agreement; and

c) negligence, as an alternative to the breach of contract, in failing to allow the landlord to remove chattels from the premises and failing to name the landlord as an insured on the insurance policy.

[4] The insurance policy provided commercial general liability coverage in a standard form. The policy contains an intentional act exclusion and does not apply to the landlord’s claim based on arson.

[5] The insurance policy also contains an exclusion related to contractual liability. Thus, it does not apply to the claims for breach of contract.

[6] The claims for negligence are pleaded as an alternative to the claims for breach of contract. In Scalera, Justice Iacobucci said:

Therefore, when ascertaining the scope of the duty to defend, a court must look beyond the choice of labels and examine the substance the allegations contained in the pleadings. This does not involve deciding whether the claims have any merit; all the court must do is decide based on the pleadings the true nature of the claims.

[7] In our view, the claims for negligence in this case are simply labels. The substance of the allegations are breaches of contract. The only duties underlying the negligence claims are the duties found in the contracts pleaded. Thus, we agree with the application judge that the insurance policy does not cover the claims of negligence.

[8] In the result, the appeal is dismissed.

[9] Costs to the respondent are fixed in the amount of $6,915.00, inclusive of disbursements and all applicable taxes, payable in 30 days.

D. O’Connor A.C.J.O.”

“John I. Laskin J.A.”

“G. Pardu J. (ad hoc)”