COURT OF APPEAL FOR ONTARIO

CITATION: David J. Gillespie Professional Corporation v. Frank Cowan Company Limited, 2013 ONCA 199

DATE: 20130402

DOCKET: C56013

Sharpe, MacFarland and Pepall JJ.A.

BETWEEN

David J. Gillespie Professional Corporation

Applicant (Appellant)

and

Frank Cowan Company Limited, Abraham Top, and United Foster Parents of Canada Corporation c.o.b. as “The Legal Defence Fund”

Respondents (Respondents in Appeal)

Kenneth J. Peacocke, for the appellant

Sheila Handler, for the respondent, Frank Cowan,

Heather Mitchell, for the respondent, United Foster Parents of Canada Corp.

Heard and released orally: March 26, 2013

On appeal from the judgment of Justice M. Edwards of the Superior Court of Justice, dated March 27, 2013.

ENDORSEMENT

[1] The motion judge found that David and Heather Lyons were not covered under the renewal policies from 2009 through 2011, because both had been terminated from their employment as foster parents in October 2008, and accordingly after that date no longer fell within the policy definition of insured. Accordingly he concluded the maximum coverage available to them was $500,000.

[2] The sole issue before us is whether his finding that the Lyons no longer met the definition of insured under the subsequent renewals of the policy was correct. We are of the view that this conclusion is correct. Not only were neither of the Lyons “foster parents” any longer, no proceedings were commenced against them after the effective date of those policies as is required by the language of the policy.

[3] The policy is a claims made policy. By definition it provides coverage for claims made during the currency of the policy. To trigger coverage a proceeding against an insured must commence after the effective date of the policy and must arise directly out of the performance of his or her duties.

[4] On the facts of this case, the Lyons can meet neither of these requirements under the policies subsequently issued.

[5] The appeal is dismissed.

[6] Costs to the respondent, Frank Cowan, fixed at $14,938.76 inclusive of disbursements and applicable taxes. No costs to the United Foster Parents of Canada Corporation, as they did not file any material or otherwise participate in this appeal.

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”

“S. E. Pepall J.A. “