



COURT OF APPEAL FOR ONTARIO

CITATION: La Rose Bakery 2000 Inc. v.
    Intact Insurance Company, 2019 ONCA 850

DATE: 20191025

DOCKET: C66517

MacPherson, Pepall and Lauwers JJ.A.

BETWEEN

La Rose Bakery 2000 Inc.

Plaintiff (Appellant)

and

Intact Insurance Company and Unity Realty &
    Insurance Inc.

Defendants (Respondents)

Mauro Marchioni, for the appellant

Jeffrey R. Goit, for the respondent Intact Insurance
    Company

Lesley E. Albert, for the respondent Unity Realty &
    Insurance Inc.

Heard: October 21, 2019

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated December 12, 2018, with reasons
    reported at 2019 ONSC 236.

REASONS FOR DECISION


[1]

The appellant, La Rose Bakery 2000 Inc., appeals from the December 12,
    2018 judgment dismissing its action against the respondent, Intact Insurance
    Company (Intact), seeking coverage for losses resulting from an ice storm in
    December 2013.

A.

Background Facts

[2]

The appellant operates a commercial bakery in a shopping plaza in
    Etobicoke. A power outage occurred in December 2013. There was no physical
    damage to the plaza or to the bakery, and no repairs to any buildings or
    structures were needed. Power was restored without any intervention by the
    owner of the plaza or the appellant.

[3]

The appellant made a claim under its policy of insurance with Intact but
    Intact refused coverage. The appellant then commenced an action against Intact for
    payment for losses relating to stock spoilage and business interruption. Intact
    defended, relying on exclusions in the policy.

[4]

The appellant also sued Unity Realty & Insurance Inc. (Unity), the
    insurance broker, for damages for negligence for failing to ensure that the
    appellant was properly insured. Unity denied liability pleading that the policy
    provided appropriate coverage in accordance with the appellants needs and
    available products. It cross-claimed against Intact for contribution and
    indemnity relying on the contents of the appellants statement of claim against
    Intact.

[5]

Intact moved for summary judgment seeking a dismissal of the appellants
    claims against it. The motion was served on Unity but it took no position and did
    not appear on the return of the motion. However, Unity did agree with Intact
    that if the summary judgment motion were successful, it would consent to a
    dismissal of its cross-claim against Intact. Counsel for the appellant was so
    advised but this fact was not brought to the motion judges attention.

B.

Motion Judges Decision

[6]

The motion judge determined that the exclusionary clauses governing stock
    spoilage and business interruption in the policy precluded coverage for the
    losses claimed. He accordingly granted summary judgment dismissing the appellants
    action against Intact.

C.

Grounds of Appeal

[7]

The appellant appeals from that order.

[8]

First, it submits that the motion judge erred by disregarding the
    principles relating to partial summary judgment described in
Butera v.
    Chown, Cairns LLP
, 2017 ONCA 783
, 137 O.R. (3d) 561, and
    its progeny.

[9]

We disagree.

[10]

The
    motion disposed of the entire action between the appellant and Intact. In
    addition, as noted by the motion judge, Unity, a party to the litigation, had
    been served with the summary judgment motion material, and would be bound by
    the outcome. There was no real risk of duplicative proceedings or inconsistent
    factual findings. The action was readily bifurcated and the cost of the
    litigation would be reduced, not increased. Furthermore, although not before
    the motion judge, Unity had agreed to consent to a dismissal of its cross-claim
    against Intact based on the outcome of the summary judgment motion. Summary
    judgment in favour of Intact was appropriate in these circumstances.

[11]

Second,
    the appellant submits that the motion judge erred in his interpretation of the insurance
    policy and in deciding the motion in the absence of expert evidence.

[12]

The
    motion judge found that the exclusion clauses precluded coverage. The exclusion
    for the stock spoilage claim stated that coverage did not cover loss or damage
    resulting from partial or total interruption to the supply of electricity,
    arising from loss or damage to any electrical transmission lines or
    distribution lines or their supporting structures, except for those located on
    the premises. The appellant concedes that the loss or damage was to
    electrical transmission lines or distribution lines or their supporting
    structures. Intact filed evidence that supported its position that the loss or
    damage was to lines or structures not located on the premises. As such, it was
    open to the motion judge to conclude that the exclusion provision applied to
    exclude coverage for the stock spoilage. The appellant failed to file evidence
    that showed that the loss or damage occurred on its premises. It was incumbent
    on the appellant to put its best foot forward. The motion judge did not err in
    interpreting the policy without the benefit of expert evidence.

[13]

Similarly,
    the motion judges conclusion that the exclusion provision precluded coverage
    for business interruption losses is unassailable.

[14]

For
    these reasons, the appeal is dismissed. As agreed by the appellant and the
    respondent, the appellant shall pay costs to the respondent fixed in the amount
    of $5,000 inclusive of disbursements and applicable tax. There will be no order
    of costs relating to Unity.

J.C. MacPherson J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


