





CITATION:
Ross v. Lawyers'
          Professional Indemnity Company, 2011 ONCA 168





DATE:
          20110302



DOCKET: C49866



COURT OF APPEAL FOR ONTARIO



MacPherson, MacFarland and Epstein JJ.A.



BETWEEN



E. Anthony Ross



Applicant (Appellant)



and



Lawyers Professional Indemnity Company



Respondent (Respondent in Appeal)



Oleh P. Vereshchak, for the appellant



Boyd Balogh, for the respondent



Heard and released orally:
February 28, 2011



On appeal from the judgment of Justice Alfred J. OMarra of
          the Superior Court of Justice dated December 12, 2008.



ENDORSEMENT



[1]

The appellant, an Ontario lawyer and member of the Law
    Society of Upper Canada, appeals from the judgment of OMarra J. of the
    Superior Court of Justice dated September 30, 2008. In that judgment, OMarra
    J. dismissed the appellants application for a declaration that the respondent
    Lawyers Professional Indemnity Company (LPIC) had a duty to defend and
    indemnify him with respect to an action brought against him in Ontario by Michael
    Simanic, one of his former clients. The basis for the application judges
    decision was that the Ontario lawsuit did not relate to professional services
    with respect to the laws of Canada provided by the appellant and, accordingly,
    coverage under LPICs policy was not triggered.

[2]

The appellant contends that the application judge erred
    in three respects: (1) he did not properly apply the principles of insurance
    policy interpretation to the circumstances of this case; (2) he did not
    properly focus on the pleadings in the Ontario action against the appellantspecifically,
    by failing to recognize that the professional services giving rise to the claim
    were those performed in the context of the Ontario action; and (3) he
    misinterpreted the words with respect to the laws of Canada in the LPIC
    policy.

[3]

We do not accept these submissions. The application
    judge explicitly set out the governing principles of insurance policy
    interpretation. He also recognized, correctly, that [w]here a question relates
    to an insurers duty to defend the insured the starting point is the assessment
    of the pleadings. We can see no error in his analysis of either the LPIC
    policy or the pleadings in the Ontario action. In our view, the appellants
    professional services that gave rise to the claim were those he performed for
    the plaintiffs in St. Kitts.

[4]

Finally, we agree with the application judges
    conclusion that all of the appellants representation or Mr. Simanic that gave
    rise to the latters Ontario action against the appellant related to the
    territory and the laws of St. Kitts and Nevis. Accordingly, as the application
    judge concluded, the appellant was practicing the laws of St. Kitts and Nevis
    and, accordingly, fell outside LPICs policy coverage.

[5]

The appeal is dismissed. The respondent is entitled to
    its costs of the appeal fixed at $7,500, inclusive of disbursements and HST.

J. C. MacPherson J.A.

J. MacFarland J.A.

Gloria Epstein J.A.


