Mori Essex Nurseries Inc. v. Northbridge General

Mori Essex Nurseries Inc. v. Northbridge General Collection Decisions of the Court of Appeal Date 2018-05-15 Neutral citation 2018 ONCA 452 Docket numbers C64520 Judges Rouleau, Paul S.; Roberts, Lois B.; Fairburn, J. Michal Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Mori Essex Nurseries Inc. v. Northbridge General Insurance Corporation, 2018 ONCA 452 DATE: 20180514 DOCKET: C64520 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) 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 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 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.