



COURT OF APPEAL FOR ONTARIO

CITATION: Hojjatian v. Intact Insurance Company, 2016 ONCA
    904

DATE: 20161129

DOCKET: C62090

Gillese, Benotto and Roberts JJ.A.

BETWEEN

Hassan Hojjatian and Mitra Kermani

Plaintiffs (Appellants)

and

Intact Insurance Company, Axa Insurance

Defendants (Respondents)

Mitra Kermani, in person

Jeffrey Goit, for the respondents

Heard: November 25, 2016

On appeal from the order of Justice S.A.Q. Akhtar of the
    Superior Court of Justice, dated April 6, 2016, with reasons reported at 2016
    ONSC 2318.

ENDORSEMENT

[1]

The
    appellants appeal the dismissal of their action for indemnity under their
    insurance contract with the respondents, in relation to water damage to their
    home.

[2]

The
    motions judge dismissed their motion for summary judgment and their action
    because he found that the water damage to the appellants home was not covered
    under their insurance contract with the respondents.

Preliminary issue

[3]

As a
    preliminary issue, Ms. Kermani submitted that Benotto J.A. should recuse
    herself from hearing this appeal because she had sat on previous appeals
    involving the appellants, their house and their mortgagee.

[4]

We
    dismissed the appellants request. We are satisfied that there is no conflict
    of interest which precludes Benotto J.A. from hearing this appeal. The
    appellants other appeals involved the striking out of the appellants claim on
    the basis that the pleadings showed no reasonable cause of action.

Appeal

[5]

Turning
    to the appeal, the appellants submit that the motions judge erred in finding
    that the water damage was excluded under their insurance contract. 
    Specifically, they say that the ground and surface water exclusions in the
    contract do not apply to heavy rainwater, which they maintain contributed to
    the water damage in this case, along with the sudden escape of water from a
    leak in the plumbing and, raised for the first time on appeal, a sewer back-up.
    Further, again for the first time on appeal, they submit that they had extended
    insurance coverage for this kind of water damage under the Gold Key Plus
    Extension to their contract. Finally, they argue that the motions judge erred
    in dismissing the claim for punitive damages
.

[6]

We do
    not accept these submissions.

[7]

First,
    it was open to the motions judge to accept the expert opinion evidence, including
    the evidence of the appellants experts, that the cause of the water damage to
    the appellants property was the ongoing seepage of ground or surface waters
    into the house caused by pre-existing wear and tear and construction defects,
    and other deficiencies in the property, including damaged weeping and shower
    tiles, and inadequate exterior grading. The appellants insurance contract
    expressly excludes damage caused by this kind of water seepage.

[8]

Further,
    the appellants did not raise before the motions judge the allegations that the
    water damage was caused by a sewer back-up or that they had extended coverage
    under the Gold Key Plus Extension. Aside from the fact that the appellants
    should not be permitted to raise on appeal issues that were not raised before
    the motions judge, the appellants have provided no support for these
    allegations. First, there is no evidence that the water damage was caused by a
    sewer back-up. Moreover, the Gold Key Plus Extension documentation included in
    the appeal materials clearly does not provide any additional coverage or modify
    the existing coverage or exclusions, in relation to water damage under the
    appellants insurance contract.

[9]

Finally,
    there is no basis for disturbing the motions judges dismissal of the claim for
    punitive damages.

[10]

As a
    result, we see no reason to interfere with the motions judges decision.

Disposition

[11]

The
    appeal is dismissed.

[12]

Costs
    are awarded to the respondents in the amount of $5,000, inclusive of disbursements
    and HST.

E.E. Gillese J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


