COURT OF APPEAL FOR ONTARIO

CITATION: Parkhill Excavating Limited v. Royal & Sunalliance Insurance Company of Canada, 2016 ONCA 882

DATE: 2016-11-22

DOCKET: C61276

LaForme, Hourigan and Pardu JJ.A.

BETWEEN

Parkhill Excavating Limited

Plaintiff (Appellant)

and

Royal & Sunalliance Insurance Company of Canada

Defendant (Respondent)

AND BETWEEN

Parkhill Excavating Limited, Arthur Thomas Barker and Randy Arthur Barker

Plaintiffs (Appellants)

and

Economical Mutual Insurance Company

Defendant (Respondent)

AND BETWEEN

BGS Homes Inc. and B.G. Scugog Inc.

Plaintiff

and

Board of Health for the Haliburton, Kawartha, Pineridge District Health Unit, The Corporation of the City of Kawartha Lakes, Parkhill Excavating Limited, Arthur Thomas Barker and Randy Arthur Barker

Defendants (Appellants)

and

Northbridge General Insurance Corporation

Third Party (Respondent)

Counsel:

Lawrence G. Theall and Camille Dunbar, for the appellants, Parkhill Excavating Limited, Arthur Thomas Barker and Randy Arthur Barker

Marcus B. Snowden and Sébastien A. Kamayah, for the respondent, Economical Mutual Insurance Company

Mark M. O'Donnell, for the respondent, Royal & Sunalliance Insurance Company of Canada

Emily Stock, for the respondent, Northbridge General Insurance Corporation

Heard: September 29, 2016

Supplementary reasons to the judgment in Parkhill Excavating Limited v. Royal & Sunalliance Insurance Company of Canada, 2016 ONCA 832, released on November 08, 2016.

Hourigan J.A.:

ADDENDUM

[1] The appeal was heard on September 29, 2016 and the judgement was released on November 08, 2016. Following the release of the judgment, the panel was contacted by counsel and informed of several pieces of pertinent information, requiring the amendment of the initial declaration and the release of this addendum to the judgement.

[2] Counsel for Royal & Sunalliance Insurance Company of Canada (“RSA”) informed the Court that RSA had settled the claims made by Parkhill Excavating Limited (“Parkhill”) against it and settled its involvement in the appeal prior to the hearing of the appeal. Accordingly, RSA was not a respondent to the appeal, and was not a party against whom judgment could be rendered. The declaration of November 08, 2016 is thus amended, so that it is only the insurers Economical Mutual Insurance Company (“Economical”) and Northbridge General Insurance Corporation (“Northbridge”) who are compelled to provide Parkhill a defence under their Commercial General Liability (“CGL”) policies.

[3] Counsel for Parkhill informed the Court that the respondent insurers had withdrawn any reliance on the Professional Services Exclusion prior to the hearing of the appeal. The declaration of November 08, 2016 is thus amended, to remove the stipulation that the declaration is subject to a determination of whether coverage is excluded under the Professional Services Exclusion. The appellants are thus granted a declaration compelling Economical and Northbridge to provide a defence under their CGLs, excluding a defence regarding the allegations of fraud, deceit and dishonesty as against Arthur Barker.

[4] Counsel for Parkhill further informed the Court of an agreement amongst the parties that if the appellants were successful, they would be entitled to full indemnity costs of the appeal, in an amount to be agreed to or fixed by the panel. The parties are now attempting to settle the quantum of costs payable to the appellants amongst themselves. The panel directs that any submissions with respect to costs be filed by the appellants within 30 days, and any reply by the respondents be filled within 10 days thereafter. The cost award of $15,000 to the appellants is vacated.

Released: November 22, 2016 “GP”

“C. W. Hourigan J.A.”

“I agree H.S. LaForme J.A.”

“I agree G. Pardu J.A.”