Court File and Parties

COURT FILE NO.: CV 19-142788

DATE: 2021201

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2748355 Canada Inc., Bentall Kennedy and

Bentall Kennedy (Canada) Limited Partnership, Applicants

AND:

Aviva Insurance Company of Canada, Respondents

BEFORE: Justice S.J. Woodley

COUNSEL: George Poirier Counsel, for the Applicants

Dennis Ong Counsel, for the Respondents

HEARD: December 1, 2021

reasons for decisIon

Overview

[1] The Applicant by this Application seeks an Order that the Respondent Aviva Insurance Company of Canada (“Aviva”) has a duty to defend and indemnify the Applicant in an underlaying “trip and fall” action in which the Applicant is named as a Defendant.

Facts

[2] The Applicant is the owner and/or manager of certain premises known as 120 Interchange Way, Vaughn, Ontario (“Premises”).

[3] The Applicant contracted Bradley Walker, carrying on business as Proturf Landscaping (“Proturf”) to provide lawn care and litter removal at the Premises pursuant to two written contracts. The written contracts between the Applicant and Proturf cover the periods: June 1, 2010 to June 1, 2011; and November 1, 2011 to November 1, 2012.

[4] On or about August 21, 2011, an individual alleges that she tripped and fell on a metal object found in a grassy area of the Premises. As a result of the alleged trip and fall, an action was commenced against the Applicant and Proturf, who were both named as Defendants. The Applicant also commenced a crossclaim against Proturf. Both the Applicant and Proturf have filed defences to all claims in the underlying action.

[5] At the time of the slip and fall being August 21, 2011, the Applicant was insured under a commercial general policy of insurance issued by AON Reed Stenhouse Inc. and Chartis Insurance Company.

[6] At the time of the alleged slip and fall being August 21, 2011, Proturf was insured under a commercial general policy of insurance issued by the Respondent Aviva.

Issues to Be Determined

[7] By the within Application, the Applicant seeks the following relief:

i. an Order that Proturf owed a contractual obligation to obtain commercial insurance for the Applicant on August 21, 2011;

ii. an Order that the Respondent Aviva owed a duty to defend and indemnify the Applicant; and

iii. a declaration as to which insurance policy is primary.

Determination of Issues

[8] As noted, the alleged trip and fall which is the subject of the underlying action occurred at the Premise on August 21, 2011, which date is during the “contractual gap period” between the Applicant and Proturf’s service contracts.

[9] Although the Applicant submits that it had an ongoing contractual relationship with Proturf and there is an implied contract between the Applicant and Proturf in effect on August 21, 2011, Proturf is not named as a Respondent and has not appeared in this Application.

[10] Further, while the Applicant seeks to impose liability upon the Respondent Aviva pursuant to the implied contract between the Applicant and Proturf – again – Proturf is not named as a Respondent and did not appear in this Application.

[11] There is no privity of contract between the Applicant and the Respondent Aviva. As such, without finding that an implied contract existed between the Applicant and Proturf, the Applicant cannot establish that Aviva has a duty to defend and/or indemnify the Applicant.

[12] It is trite law to state that a ruling cannot be made against a party’s interest without the party being afforded an opportunity to present its position. The Application as drafted cannot be determined without first determining whether there was an implied contract between the Applicant and Proturf.

[13] Essential linkage between the Applicant’s claims are simply missing from this Application. As Proturf is not a Respondent and did not appear on the Application, the Application is fatally flawed and cannot succeed.

Disposition of Application

[14] In the circumstances, the Application is dismissed as against the Respondent without prejudice to the Applicant to commence whatever legal proceedings they may deem appropriate (motion in underlying action or a further application) for the relief sought herein.

[15] As the Application is dismissed and as the Respondent had served a Rule 49 Offer to Settle that was better than the relief obtained, the Respondent is entitled to costs on a substantial indemnity basis fixed at $6,000.00 inclusive.

Justice S.J. Woodley

Date: December 1, 2021