



COURT OF APPEAL FOR ONTARIO

CITATION: Byrd v. Allianz Global Risks US
    Insurance Company, 2019 ONCA 858

DATE: 20191030

DOCKET: C65846

Strathy C.J.O., Sharpe and
    Roberts JJ.A.

BETWEEN

Sharon
    Byrd and David Byrd

Plaintiffs
(Respondents)

and

Allianz Global Risks US Insurance Company
,
    McDougall
Insurance Brokers Ltd., Bay of Quinte Mutual Insurance Co.,
and Doug Whitley Insurance Brokers Limited c.o.b.
Whitley Insurance & Financial Services

Defendants
(
Appellant
)

Clay Hunter, for the appellant

Robert J. Reynolds for the respondents

Heard:  October 28, 2019

On appeal
    from the order of Justice Stanley J. Kershman of the Superior Court of Justice,
    dated July 31, 2018.

REASONS FOR DECISION

[1]

The appellant appeals from the order declaring that it has a duty to
    defend claims against the respondents.

[2]

The appellant submits that the motion judge erred in his application of
    the correct approach to be taken in the consideration of whether an insurer has
    a duty to defend claims against its insured. In this case, the respondents are
    defendants in two actions arising from an accidental death caused by an all-terrain
    vehicle operated on the respondents property, which contains a private airstrip.
    The appellant insured the respondents against their liabilities under a general
    liability policy.

[3]

We do not accept the appellants submissions. The motion judge correctly
    followed the pleadings rule approach prescribed by the Supreme Court of
    Canada. He analyzed the insurance policy and the pleadings to determine whether
    the pleadings allege facts which, if true, raise claims that arguably fall under
    the coverage of the policy and would require the appellant to indemnity the respondents
    for the claims:
Monenco Ltd. v. Commonwealth Insurance Co.
,
    2001 SCC 49, at paras. 28-30, 33;
Progressive Homes Ltd.
    v. Lombard General Insurance Co. of Canada,

2010
    SCC 33, at para. 19.

[4]

The appellant submits that the motion judge erred by going beyond the
    pleadings and speculating that the use of an all-terrain vehicle on the
    respondents private airstrip could constitute ancillary services that would be
    covered under the policy. The pleadings were silent as to nature of the respondents
    use of the all-terrain vehicle when the accident occurred and there was no
    evidence supporting the motion judges conclusion.

[5]

We are not persuaded by these submissions. Without engaging in a fanciful
    reading, the motion judge was required to give the widest latitude to the
    allegations in the pleadings in determining whether they raise a claim within
    the policy:
Monenco
, at paras. 31-32. The duty
    to defend is broader than the duty to indemnify; an insurer will have a duty to
    defend when there is the mere possibility that a claim falls within the
    insurance policy, regardless if it is ultimately liable to indemnify the insured:
Progressive Homes
, at para. 19. In our view,
    that is the case here. We see no error in the motion judges interpretation of the
    policy or the pleadings.

[6]

The respondents are entitled to their partial indemnity costs in
    the amount of $9,500.00, inclusive of disbursements and all applicable taxes.

G.R.
    Strathy C.J.O.

Robert
    J. Sharpe J.A.

L.B.
    Roberts J.A.


