COURT OF APPEAL FOR ONTARIO

CITATION: Cain v. 1150320 Ontario Inc. (The Antique Shoppe), 2012 ONCA 920

DATE: 20121227

DOCKET: C55670

BEFORE: Cronk, Juriansz and Pepall JJ.A.

BETWEEN

Michael Cain

Plaintiff/Respondent

and

1150320 Ontario Inc. c.o.b. as The Antique Shoppe, Neil Perry, Bluewave Energy LP., Trevor Bennett c.o.b. Trevor Bennett Oil Tank Installation, Mary Eileen Stephenson, R.H. Thomson & Sons Ltd. and Houle Chevrier Engineering Ltd.

Defendants/Appellant

and

2118194 Ontario Inc. c.o.b. Marlborough Pub and Donald Ferguson c.o.b. Ferguson Haulage & Equipment Rentals

Third Parties

and

1496369 Ontario Inc.

Fourth Party

COUNSEL:

Joseph Y. Obagi, for the appellant

Michael S. Hebert and Cheryl Gerhardt McLuckie, for the respondent

HEARD: December 19, 2012

On appeal from the judgment of Justice Monique Métivier of the Superior Court of Justice dated May 22, 2012, with reasons reported at 2012 ONSC 3018.

ENDORSEMENT

[1] The respondent lessor sued the appellant lessee and others for damages arising from the escape of oil from the appellant’s above ground storage tank.

[2] The appellant brought a motion for the determination, before trial, of a question of law, pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At issue was whether the parties’ commercial lease contained an express or implied covenant by the respondent to insure against the loss such that the respondent’s action against the appellant would be barred.

[3] The motion judge determined that the lease did not contain such an express or implied covenant and that the respondent was therefore able to proceed with his action.

[4] Both counsel agreed that the applicable jurisprudence is unsettled. An issue raised pursuant to rule 21.01(1)(a) should not be resolved against a party unless it is plain and obvious that it could not succeed at trial: Friedmann Equity Developments Inc. v. Final Note Ltd. (1998), 1998 CanLII 6025 (ON CA), 41 O.R. (3d) 712 (C.A.), at p. 718.

[5] Based on the record before us and the state of the jurisprudence, it is not plain and obvious whether the lease contained a covenant to insure for the loss claimed by the respondent. Accordingly, paragraph 1 of the judgment, which addresses this issue, is set aside without prejudice to the parties to advance their respective positions at trial.

[6] That said, we agree with the motion judge’s conclusion that the appellant’s motion for an order dismissing the action and crossclaims against it should be dismissed.

[7] The appeal is therefore allowed in part. The appellant is entitled to its costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“S.E. Pepall J.A.”