Fischer v. Stewart Title Guaranty Company
The court held that prior use of the property as a marijuana grow operation does not constitute a title defect under the policy and that title insurance does not cover losses from physical damage or unmarketability unrelated to defects in title; accordingly the insurer had no coverage obligation.
Source-derived case information.
- Citation
- 2014 ONCA 798
- Parties
- Appellant: Frederick Fischer; Respondent: Stewart Title Guaranty Company
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 12 November 2014
- Procedural Posture
- Civil Appeal / Appeal From Superior Court; Summary Judgment on Coverage Issue Decided by Court of Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Title Insurance, Marketability of Title, Summary Judgment, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frederick Fischer
Appellant
Stewart Title Guaranty Company
Respondent
Procedural Posture
Civil Appeal / Appeal From Superior Court; Summary Judgment on Coverage Issue Decided by Court of Appeal
Legal Issues
- 1 Whether prior use of the property as a marijuana grow operation constitutes a title defect covered by the title insurance policy
- 2 Whether title insurance covers unmarketability or loss arising from physical damage or prior use rather than defects in title
Ratio Decidendi
The court held that prior use of the property as a marijuana grow operation does not constitute a title defect under the policy and that title insurance does not cover losses from physical damage or unmarketability unrelated to defects in title; accordingly the insurer had no coverage obligation.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs fixed at $3,500.00, all inclusive.
Full Case Text
Judgment text and source record
1 paragraphs
Fischer v. Stewart Title Guaranty Company Collection Decisions of the Court of Appeal Date 2014-11-12 Neutral citation 2014 ONCA 798 Docket numbers C58336 Judges Strathy, George R.; Feldman, Kathryn N.; Lauwers, Peter D. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Fischer v. Stewart Title Guaranty Company, 2014 ONCA 798 DATE: 20141112 DOCKET: C58336 Strathy C.J.O., Feldman and Lauwers JJ.A. BETWEEN Frederick Fischer Appellant and Stewart Title Guaranty Company Respondent Harvey A. Swartz, for the appellant Anne M. Kennedy, for the respondent Heard and released orally: October 30, 2014 On appeal from the judgment of Justice Nancy Mossip of the Superior Court of Justice, dated January 14, 2014. ENDORSEMENT [1] The motion judge dismissed the appellant’s claim against his title insurer. The parties had agreed that it was appropriate to address the coverage issue on summary judgment. [2] The policy of insurance covered title risks. Title was defined as “the ownership of your interest in the land” and was described as “fee simple vested in Frederick Fischer”. [3] The policy covered among other things, the risk that the appellant’s land was unmarketable for any one of four reasons, all of which related to title and none of which applies here. It also covered the risk that the appellant’s title was unmarketable, allowing another person to “refuse to perform a contract to purchase, to lease or to make a mortgage loan”. [4] The motion judge found the previous use of the property as a marijuana “grow op” was not a title defect. That conclusion is unassailable. Even assuming the land was unmarketable, the title was marketable and was unencumbered by defects that would permit a purchaser to refuse to perform a contract of sale. [5] This conclusion is consistent with the U.S. authority cited by the respondent, particularly, the decision of the California Court of Appeal in Lickmill Creek Apartments v. Chicago Title Insurance Company (1991), 231 Cal. App. 3rd 1654. [6] In that case, at page 6, the court adopted the observation that: The purpose of title insurance is not to protect the insured against loss arising from physical damage to property; rather, it is to protect the insured against defects in the title. [7] The appeal is therefore dismissed. Costs fixed at $3,500.00, all inclusive. “G.R. Strathy C.J.O.” “K. Feldman J.A.” “P. Lauwers J.A.”