





CITATION:
Rashid v. Intact
          Insurance Company, 2011 ONCA 806



DATE:  20111219



DOCKET: C53684



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Laskin J.A. and Pardu J. (
ad hoc
)



BETWEEN



Shnaw Rashid



Appellant (Plaintiff)



and



Intact Insurance Company



Respondent (Defendant)



Maurice Benzaquen, for the appellant (plaintiff)



Michael Burgar respondent (defendant)



Heard and released orally:
December 8, 2011



On appeal from the order of Justice Whitten of the Superior
          Court of Justice dated March 14, 2011.



ENDORSEMENT



[1]

We agree with the motion judge that the respondent does not have a duty
    to defend.

[2]

Whether or not an insurer will have a duty to provide an insured with a
    defence to a particular claim is governed by the causes of action pleaded in
    the statement of claim.

[3]

The landlords statement of claim pleads three causes of action against
    the appellant:

a)

arson,
    related to a fire that occurred in the middle of the night on August 31 and
    September 1, 2009;

b)

breach
    of contract for failing to comply with the terms of the lease and/or the
    general security agreement; and

c)

negligence,
    as an alternative to the breach of contract, in failing to allow the landlord
    to remove chattels from the premises and failing to name the landlord as an
    insured on the insurance policy.

[4]

The insurance policy provided commercial general liability coverage in a
    standard form.  The policy contains an intentional act exclusion and does not
    apply to the landlords claim based on arson.

[5]

The insurance policy also contains an exclusion related to contractual
    liability.  Thus, it does not apply to the claims for breach of contract.

[6]

The claims for negligence are pleaded as an alternative to the claims
    for breach of contract.  In
Scalera
, Justice Iacobucci said:

Therefore, when ascertaining the scope of the duty
    to defend, a court must look beyond the choice of labels and examine the
    substance the allegations contained in the pleadings.  This does not involve
    deciding whether the claims have any merit; all the court must do is decide based
    on the pleadings the true nature of the claims.

[7]

In our view, the claims for negligence in this case are simply labels. 
    The substance of the allegations are breaches of contract.  The only duties
    underlying the negligence claims are the duties found in the contracts
    pleaded.  Thus, we agree with the application judge that the insurance policy
    does not cover the claims of negligence.

[8]

In the result, the appeal is dismissed.

[9]

Costs to the respondent are fixed in the amount of $6,915.00, inclusive
    of disbursements and all applicable taxes, payable in 30 days.

D. OConnor A.C.J.O.

John I. Laskin J.A.

G. Pardu J. (
ad hoc
)


