Court of Appeal for Ontario
Date: 2018-05-14 Docket: C64520
Judges: Rouleau, Roberts and Fairburn JJ.A.
Between
Mori Essex Nurseries Inc. and Mori-Vines Inc. Plaintiffs (Appellants)
and
Northbridge General Insurance Corporation and Lombard General Insurance Company of Canada Defendants (Respondents)
Counsel
Anne Juntunen, for the appellants
William Chalmers, for the respondents
Heard: May 11, 2018
On appeal from: the judgment of Justice Markus Koehnen of the Superior Court of Justice, dated October 3, 2017.
Appeal Book Endorsement
[1] The appeal was argued principally on the basis that the care, custody, or control exclusion did not apply so as to justify the respondent's refusal to provide a defence to the appellant Mori Essex Nurseries (Essex).
[2] The motion judge found that the insurer had no duty to defend because of the exclusions contained in the Essex's Commercial General Liability Policy. Essex appeals arguing that the claim includes damage that may have occurred after the vines left the care, custody, or control of Essex. As a result, Essex maintains that the care, custody, or control exclusion in the policy does not apply to some of the damage being claimed and the insurer must provide a defence.
[3] We disagree. The motion judge properly focussed on the pleadings and the policy. He carried out a careful review and correctly found that, as they relate to Essex, the pleadings allege that any defect in the vines resulting in the damage claimed was caused by Essex's negligent treatment of the vines when they were in its care, custody, or control. This triggers the care, custody, or control exclusion of the policy.
[4] In any event, the motion judge also considered Peller's claim, as set out in its pleading. As he explained in his reasons, Peller's allegation is that the damage was caused by fungus that affected 100% of the vines. This triggers a second exclusion in the policy, the exclusion for damage resulting from fungi or spores.
[5] In conclusion, we see no error in the motion judge's decision and the appeals are dismissed. The cross-appeal is dismissed as moot. Costs to the respondent fixed at $10,000 inclusive of disbursements and applicable taxes.