



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 appellants 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 appellants
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 appellants
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.
    3
rd
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.


