COURT OF APPEAL FOR ONTARIO

CITATION: Hojjatian v. Intact Insurance Company, 2016 ONCA 904

DATE: 20161129

DOCKET: C62090

Gillese, Benotto and Roberts JJ.A.

BETWEEN

Hassan Hojjatian and Mitra Kermani

Plaintiffs (Appellants)

and

Intact Insurance Company, Axa Insurance

Defendants (Respondents)

Mitra Kermani, in person

Jeffrey Goit, for the respondents

Heard: November 25, 2016

On appeal from the order of Justice S.A.Q. Akhtar of the Superior Court of Justice, dated April 6, 2016, with reasons reported at 2016 ONSC 2318.

ENDORSEMENT

[1] The appellants appeal the dismissal of their action for indemnity under their insurance contract with the respondents, in relation to water damage to their home.

[2] The motions judge dismissed their motion for summary judgment and their action because he found that the water damage to the appellants’ home was not covered under their insurance contract with the respondents.

Preliminary issue

[3] As a preliminary issue, Ms. Kermani submitted that Benotto J.A. should recuse herself from hearing this appeal because she had sat on previous appeals involving the appellants, their house and their mortgagee.

[4] We dismissed the appellants’ request. We are satisfied that there is no conflict of interest which precludes Benotto J.A. from hearing this appeal. The appellants’ other appeals involved the striking out of the appellants’ claim on the basis that the pleadings showed no reasonable cause of action.

Appeal

[5] Turning to the appeal, the appellants submit that the motions judge erred in finding that the water damage was excluded under their insurance contract. Specifically, they say that the ground and surface water exclusions in the contract do not apply to heavy rainwater, which they maintain contributed to the water damage in this case, along with the sudden escape of water from a leak in the plumbing and, raised for the first time on appeal, a sewer back-up. Further, again for the first time on appeal, they submit that they had extended insurance coverage for this kind of water damage under the Gold Key Plus Extension to their contract. Finally, they argue that the motions judge erred in dismissing the claim for punitive damages.

[6] We do not accept these submissions.

[7] First, it was open to the motions judge to accept the expert opinion evidence, including the evidence of the appellants’ experts, that the cause of the water damage to the appellants’ property was the ongoing seepage of ground or surface waters into the house caused by pre-existing wear and tear and construction defects, and other deficiencies in the property, including damaged weeping and shower tiles, and inadequate exterior grading. The appellants’ insurance contract expressly excludes damage caused by this kind of water seepage.

[8] Further, the appellants did not raise before the motions judge the allegations that the water damage was caused by a sewer back-up or that they had extended coverage under the Gold Key Plus Extension. Aside from the fact that the appellants should not be permitted to raise on appeal issues that were not raised before the motions judge, the appellants have provided no support for these allegations. First, there is no evidence that the water damage was caused by a sewer back-up. Moreover, the Gold Key Plus Extension documentation included in the appeal materials clearly does not provide any additional coverage or modify the existing coverage or exclusions, in relation to water damage under the appellants’ insurance contract.

[9] Finally, there is no basis for disturbing the motions judge’s dismissal of the claim for punitive damages.

[10] As a result, we see no reason to interfere with the motions judge’s decision.

Disposition

[11] The appeal is dismissed.

[12] Costs are awarded to the respondents in the amount of $5,000, inclusive of disbursements and HST.

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”