



COURT OF APPEAL FOR ONTARIO

CITATION: Simpson Wigle Law LLP v. Lawyers Professional
    Indemnity Company, 2014 ONCA 492

DATE: 20140625

DOCKET: C58202

Gillese, van Rensburg and Hourigan JJ.A.

BETWEEN

Simpson Wigle Law LLP, Mary Catherine Wigle, as
    Estate Trustee of the Estate of Francis Wigle, deceased, and Paul Milne

Applicants (Appellants)

and

Lawyers Professional Indemnity Company

Respondent (Respondent)

Alan J. Lenczner and Elizabeth Bowker, for the appellants

J. Stephen Cavanagh, for the respondent

Heard: May 5, 2014

On appeal from the judgment of Justice David L. Edwards
    of the Superior Court of Justice, dated December 20, 2013.

Gillese J.A.:

OVERVIEW

[1]

Simpson Wigle Law LLP (Simpson
    Wigle) is a law firm that is insured under a policy of insurance issued by the
    Lawyers Professional Indemnity Company (LawPro or the respondent).  The
    LawPro insurance policy (Policy No. 2004-001) has a limit of liability of $1
    million per claim, with an aggregate limit of $2 million (the Policy).

[2]

The appellants brought an
    application for a declaration that the allegations in an underlying action
    against them constituted two separate claims under the Policy, rather than a
    single claim (the Application).  A statement of claim and an amended
    statement of claim (together the Statement of Claim) have been filed in the
    underlying action.

[3]

The application judge found
    that the allegations made in the Statement of Claim were related and that, as
    a result, they constituted one claim for the purposes of the Policy.  By
    judgment dated December 20, 2013 (the Judgment), he declared that the Statement
    of Claim contains a single claim.

[4]

The appellants ask this court
    to set aside the Judgment and declare that the Statement of Claim discloses more
    than one claim, within the meaning of the Policy.

[5]

For the reasons that follow,
    I would allow the appeal and make the requested declaration.

BACKGROUND

[6]

The following alleged facts
    are drawn from the Statement of Claim and do not constitute findings of fact.

[7]

Angelo Agro (Angelo) and
    his brother, Frank Agro (Frank), jointly owned and operated a number of
    agricultural and related businesses and properties in Waterdown, Ontario.  They
    were both clients of Francis Wigle and Simpson Wigle, the law firm in which he
    was a partner.

The Committeeship Application

[8]

Angelo suffered from
    Parkinsons Disease and other physical ailments.  In view of this, Mr. Wigle prepared
    a power of attorney for Angelo in 1990 and a second one in 1991.  In both
    powers of attorney, Frank was named as Angelos attorney, and Angelos nephew,
    Richard Agro, was named as the alternate attorney.

[9]

In 1993, Mr. Wigle and CIBC
    Trust Corporation (CIBC) brought an application in which they asked the court
    to declare Angelo mentally incompetent and appoint them as committees of Angelos
    person and estate (the Committee Application).

[10]

Simpson
    Wigle acted as the counsel of record for the Committee Application.  Mr. Wigle
    prepared all of the Committee Application materials.

[11]

In
    the Committee Application, the existence of Angelos two powers of attorney was
    disclosed.  As well, there was an affidavit from Frank, in which Frank indicated
    that he was unable and unwilling to act as Angelos committee.  However, the
    materials filed on the Committee Application did not include the two powers of
    attorney.  And, significantly, they did not disclose that in the powers of
    attorney, Richard Agro was named as Angelos alternate attorney.

[12]

By
    order dated August 19, 1993, Mr. Wigle and the CIBC were appointed as the committees
    of Angelos person and estate.  They acted in that capacity until Angelos
    death on June 22, 2000.

[13]

Simpson
    Wigle acted as solicitor to Angelos committees.

[14]

During
    the time in which Mr. Wigle and the CIBC acted as Angelos committees, Angelos
    estate was charged with committeeship fees, legal fees, administration fees,
    and bank overdraft fees.  Angelos care costs were also paid out of his estate.

The Sale of Properties Jointly Owned by Angelo and Frank

[15]

Frank
    died in 1996.  Under his will, which Mr. Wigle had drafted, Mr. Wigle and Paul
    Milne, another lawyer and partner at Simpson Wigle, were named his executors.

[16]

Mr.
    Wigle declined to act as executor, leaving Mr. Milne as the sole executor. 
    However, Mr. Wigle acted as solicitor to Franks estate and played an active
    role in its administration.

[17]

Messrs.
    Wigle and Milne arranged for the disposition of six real estate properties
    jointly owned by Frank and Angelo.  Considered from Angelos perspective, there
    was no need for the sales, which were allegedly improvident or below market
    value.  Two of the properties had the potential to be included in a designated
    Waterdown urban expansion area but no steps were taken in that regard.  In the
    Statement of Claim, it is alleged that selling the two properties without
    having had them included in the Waterdown area resulted in significant loss to
    Angelos estate because their value would have been much greater had they been
    within the urban boundary.

[18]

Mr.
    Wigle was the solicitor who negotiated and effected these sale transactions.

[19]

Mr.
    Milne, on behalf of Franks estate, brought an application in respect of a farm
    property  referred to as the Highway No. 5 Property  which Angelo and Frank
    also jointly owned (the Highway No. 5 Property Application).  In the Highway
    No. 5 Property Application, the court was asked to declare that Frank and
    Angelo owned the Highway No. 5 Property by way of a partnership, rather than as
    joint tenants.  Accordingly, instead of Franks interest in the Highway No. 5 Property
    passing to Angelo on Franks death, Franks estate would retain a 50% interest in
    it.

[20]

Mr.
    Wigle drafted the materials for the Highway No. 5 Property Application,
    including the affidavits for both the applicants and the respondents.  The
    materials filed on behalf of Angelo failed to include relevant material that
    would have affirmed that Frank and Angelo always intended to jointly own the Highway
    No. 5 Property.

[21]

The
    Highway No. 5 Property Application was successful and Franks estate was declared
    to have a 50% ownership interest in that property.

[22]

Angelos
    estate appealed.  The appeal was resolved by means of a settlement negotiated
    between Messrs. Wigle and Milne, in which Angelos estate obtained an
    additional 12.5% interest in the Highway No. 5 Property.

[23]

Thereafter,
    Mr. Wigle acted as solicitor for Franks estate in respect of the sale of
    Franks portion of the Highway No. 5 Property.

The Statement of Claim

[24]

Following
    Angelos death in 2000, his estate trustees (who included Richard Agro) started
    the underlying action against the defendants Simpson Wigle, Messrs. Wigle and
    Milne, and the CIBC.  The appellants are those defendants that are insured by
    the Policy, namely all of the defendants except the CIBC.

[25]

The
    Statement of Claim sought, among other things:

·

a declaration that the appellants acted in breach of their fiduciary
    obligations and of the duties of care and competence owed to Angelo and his
    estate;

·

a declaration that the appellants acted in a conflict of interest
    in respect of the administration of the person and estate of Angelo;

·

damages for breach of fiduciary duty, breach of contract and
    negligence; and

·

an order disgorging all committeeship, guardianship,
    administration and legal fees received by the appellants in respect of the
    administration of the person and affairs of Angelo after the Committee Application
    was granted.

[26]

At
    para. 19 of the Statement of Claim, it is alleged that had the appellants
    properly disclosed Angelos 1990 and 1991 powers of attorney, Richard Agro
    would have assumed the role of attorney for Angelos person and estate, and Mr.
    Wigle and the CIBC would never have been appointed as Angelos committees.

[27]

Specifically,
    at paras. 19(a)-(g) of the Statement of Claim, Angelos estate is said to have suffered
    the following losses as a result of the allegedly wrongful appointment of Mr.
    Wigle and the CIBC as Angelos committees:

a)

fees in excess of
    $620,000 paid by Angelos estate to Mr. Wigle and the CIBC as committees, which
    would not have been incurred had Richard Agro served as Angelos attorney;

b)

legal fees of
    approximately $125,000 charged by Simpson Wigle and Mr. Wigle to Angelos
    person and estate, which would not have been incurred had Richard Agro served
    as Angelos attorney;

c)

administration fees
    and expenses charged by the CIBC for maintaining and managing the bank account
    of Angelos committees;

d)

the improvident or
    below market value sales of the six properties that Angelo owned jointly with
    Frank;

e)

the failure to take
    steps to have two of these properties included in a designated Waterdown urban
    expansion area, an action that would have increased these properties values;

f)

care costs
    in excess of $490,000 that were charged to Angelos estate, despite Franks
    direction (contained in documents drafted by Mr. Wigle) that such costs were to
    be paid from Franks estate; and

g)

overdraft charges
    unnecessarily incurred on Angelos bank account due to the actions of Angelos
    committees.

[28]

At
    paras. 21-23 of the Statement of Claim, Messrs. Wigle and Milne are alleged to
    have placed themselves in an untenable conflict of interest by taking on
    various roles in respect of Angelos and Franks estates, particularly because
    the interests of the two estates were adverse to one another in a number of
    respects.

[29]

At
    para. 23 of the Statement of Claim, Messrs. Wigle and Milne are alleged to have
    preferred the interests of Franks estate to those of Angelos estate by:

a)

failing to pay
    Angelos care costs out of Franks estate;

b)

carrying out the
    improvident or below market real property sales;

c)

acting for the estates
    of both Angelo and Frank with respect to the Highway No. 5 Property and failing
    to disclose on the Highway No. 5 Property Application evidence showing that Frank
    and Angelo owned the property as joint tenants; and

d)

Mr. Wigle acting as
    solicitor for Franks estate on the sale of the Highway No. 5 Property without
    regard to Angelos estate, to whom he owed continuing fiduciary duties.

[30]

The
    application judge found that prior to the Application being heard, the estate
    trustees were no longer pursuing the allegations in respect of the Highway No.
    5 Property.

[31]

The
    appellants have confirmed that of the claims asserted in para. 23 of the
    Statement of Claim, only the claim at para. 23(b) is still being pursued.  The
    claim at para. 23(b) is the same as the claim advanced at paras. 19(d) and (e)
    of the Statement of Claim.

THE RELEVANT POLICY PROVISIONS

[32]

As
    noted earlier, the Policy has a limit of liability of $1 million per claim,
    with an aggregate limit of $2 million.

[33]

The
    obligation to pay damages is set out in Part I of the Policy:

A.

DAMAGES

To pay on behalf of the INSURED all sums which the INSURED
    shall become legally obligated to pay as DAMAGES arising out of a CLAIM,
    provided the liability of the INSURED is the result of an error, omission or
    negligent act in the performance of or the failure to perform PROFESSIONAL
    SERVICES for others.

[34]

Claim
    is defined in Part V(b) of the Policy as:

(i) a written or oral demand for money or services; or

(ii) a written or oral allegation of breach in the rendering
    or failure to render PROFESSIONAL SERVICES;

received by the INSURED and
resulting from

a single

or related error(s), omission(s) or negligent act(s) in the performance of
    or failure to perform PROFESSIONAL SERVICES.
[
[1]
]

All CLAIMS
, or circumstances of an error, omission or
    negligent act which any reasonable person or LAW FIRM would expect to
    subsequently give rise to a CLAIM,
which arise from a single or related
    error(s)
,
omission(s), or negligent act(s),

shall be considered a
    single CLAIM
regardless of the number of INSUREDS or the number of persons
    or organizations making the CLAIM or the time or times the error(s),
    omission(s), or negligent act(s) took place.

[Emphasis added; capitals
    in the original.]

[35]

Part
    III of the Policy sets out exclusions to coverage.  Para. (h) of Part III stipulates
    that the Policy does not apply:

(h) to any CLAIM in any way relating to or arising out of legal
    fees, accounts or any fee arrangement involving the INSURED

THE DECISION BELOW

[36]

Before
    the application judge, the appellants argued that the allegations in the
    Statement of Claim gave rise to at least two separate claims: one claim arising
    from the allegedly improper appointment of Mr. Wigle and CIBC as committees of Angelos
    person and estate (the POA Allegation), and a second claim arising from the
    alleged conflict of interest due to the various roles that Messrs. Wigle and
    Milne played in respect of Angelos and Franks estates (the Conflict Allegation)
    (paras. 11-13).

[37]

The
    application judge accepted the parties position that the nub of the issue to
    be decided was whether the acts or omissions alleged in the Statement of Claim
    were related, within the meaning of the Policy (para. 17).  In deciding this
    issue, the application judge began by excluding from consideration those losses
    which, in his view, are not covered by the Policy.  He concluded that because the
    Policy does not insure against disgorgement of fees or provide coverage to the CIBC,
    in para. 19, only paras. 19(d) and (e) were relevant to determining whether there
    is more than one claim (para. 25).

[38]

At
    para. 35, the application judge stated that:

If one loss is alleged to be a consequence of different
    error(s), omission(s), or negligent act(s) it is logical that the error(s),
    omission(s), or negligent act(s) are related.

[39]

With
    that in mind, the application judge gave three reasons for finding that the POA
    Allegation and the Conflict Allegation are related, within the meaning of the
    Policy.

[40]

First,
    in his view, the losses said to have been sustained in the two allegations are
    the same, with the exception of the losses alleged in respect of the Highway
    No. 5 Property (para. 37).

[41]

Second,
    he saw the fiduciary duty that Mr. Wigle owed to Angelo to be the same for both
    allegations and as arising from the same fact:  the failure to disclose the
    powers of attorney (para. 42).

[42]

Third,
    the fiduciary duty that Mr. Milne owed to Angelo was the same for both allegations
    and for the same reason:  Mr. Milne was a partner at Simpson Wigle with Mr.
    Wigle, who owed a fiduciary duty to Angelo.  Mr. Milnes actions as Franks
    executor breached that same fiduciary duty (paras. 46-47).

[43]

The
    application judge stated that even if he had determined that the Statement of
    Claim contained two claims, as a result of the fact that the estate trustees
    were no longer pursuing the Highway No. 5 Property claim, he would have found
    that the loss claim is identical for both the Committee Allegation and the
    Conflict Allegation (paras. 49-51).

THE ISSUE

[44]

This
    appeal raises a single issue:  did the application judge err in finding that
    the facts alleged in the Statement of Claim disclose a single claim under the Policy?

ANALYSIS

A Preliminary Point

[45]

As
    explained above, in deciding whether the Statement of Claim disclosed one or
    more than one claim, the application judge excluded from consideration all of
    para. 19 of the Statement of Claim, with the exception of paras. 19(d) and (e). 
    He did so because the Policy does not insure against disgorgement of fees or provide
    coverage to the CIBC.

[46]

The
    appellants submit that the application judge erred in approaching the issue on
    the basis that in para. 19, only clauses (d) and (e) were relevant.  I agree.

[47]

The
    application judge was correct when he stated that the Policy does not apply to
    any claim relating to, or arising out of, legal fees:  see Part III(h), set out
    above.  He was also correct when he noted that the Policy does not provide
    coverage to the CIBC.

[48]

However,
    in my view, in reaching the conclusion that the Policy did not cover paras.
    19(a), (b), (c), (f) and (g), he misunderstood the nature of the damages being
    sought.  In those paragraphs, the estate trustees are not asking for the
    disgorgement of fees that were paid.  Rather, they seek to recover damages for
    amounts that were needlessly expended on Angelos behalf due to the wrongful
    appointment of Mr. Wigle and the CIBC as the committees of Angelos person and
    estate.  They say that had Richard known that Angelo had named him as the alternate
    attorney in his powers of attorney, Richard would have assumed the role of
    attorney when Frank was unable or unwilling to so act.  If that had occurred, Mr.
    Wigle and the CIBC would never have been appointed committees of Angelos
    person and estate.  Thus, so the claim runs, all the costs, fees and expenses
    that flowed from Mr. Wigle and the CIBCs appointment as Angelos committees
    were needless and the appellants are liable in damages representing those
    costs, fees and expenses.

[49]

Accordingly,
    the claim at paras. 19(a), (b), (c), (f) and (g) is not a claim for legal fees
    in the sense contemplated by Part III(h) of the Policy nor is it an attempt to
    seek coverage for the CIBC.  The exclusion in Part III(h) is intended to
    exclude from coverage legal fees an insured receives
qua
legal fees  in
    other words, as payment for his or her work as a lawyer.  As I have explained,
    it is not the return of legal (and other) fees that the estate trustees seek in
    the relevant clauses of para. 19 of the Statement of Claim.  Rather, they seek damages
    for those fees which they allege were needlessly paid from Angelos estate
    because of the wrongful appointment of Mr. Wigle and the CIBC as his
    committees.

[50]

Thus,
    in my view, the application judge erred in considering only the negligence
    claims in respect of the sales of the real property (i.e. paras. 19(d) and (e)
    and 23(b) of the Statement of Claim) when deciding the issue before him,
    namely, whether the Statement of Claim disclosed one or more claims.

The Central Question

[51]

This
    brings us to the central question raised on appeal:  does the Statement of
    Claim disclose one or more than one claim, within the meaning of the Policy?

[52]

In
    answering this question, the wording of the Policy is the starting point.

[53]

Before
    considering the key Policy provision, however, it is useful to recall the general
    principles that apply to the interpretation of insurance policies.

General Principles of Insurance Policy Interpretation

[54]

As
    the application judge noted at para. 21 of his reasons, the Supreme Court of
    Canada recently reiterated the general principles governing the interpretation
    of insurance policies in
Progressive Homes Ltd. v. Lombard General Insurance
    Co. of Canada,
2010 SCC 33, [2010] S.C.R. 245, at paras. 22-24.   These
    principles can be summarized as follows:

The primary interpretive principle is that when the language of
    the policy is unambiguous, the court should give effect to that language,
    reading the policy as a whole.

Where the language of the policy is ambiguous, general rules of
    contract construction apply.  The courts should prefer interpretations that are
    consistent with the reasonable expectations of the parties, so long as such an
    interpretation can be supported by the text of the policy.  The courts should avoid
    interpretations that would give rise to an unrealistic result or that would not
    have been in the parties contemplation at the time the policy was concluded. 
    Courts should strive to ensure that similar insurance policies are construed
    consistently.

When the rules of contract construction fail to resolve the
    ambiguity, courts will construe the policy contra proferentem  against the
    insurer.  This means that coverage provisions are interpreted broadly, and
    exclusion clauses narrowly.

The Key
    Policy Provision

[55]

There
    is no dispute that the claims advanced in the Statement of Claim fall within
    the definition in Part V(b)(ii) of the Policy.  As we have seen, claim is
    defined in that provision to include a written allegation of breach in the
    rendering of a professional service.  There can be no question in this case
    that the claims are for breaches of the professional services rendered by Mr.
    Wigle and Simpson Wigle.

[56]

The
    key words in Part V(b)(ii) of the Policy, for the purposes of this appeal, are
    the following:

All CLAIMS  which arise from a single or related error(s),
    omission(s), or negligent act(s), shall be considered a single CLAIM
regardless of the number of INSUREDS or the number of persons or organizations
    making a CLAIM or the time or times the error(s), omission(s) or negligent
    act(s) took place.  [Emphasis added.]

[57]

On
    a plain reading of this provision, claims which arise from related error(s),
    omission(s) or negligent act(s) shall be considered a single claim, regardless
    of the number of insured, the number of persons making a claim, or the times at
    which the alleged errors, omissions or negligent acts took place.

[58]

In
    this case, the claims in the Statement of Claim arise from a number of alleged
    errors, omissions and negligent acts.  Thus, the question becomes, are the
    alleged errors, omissions or negligent acts related?

Meaning of
    the word Related

[59]

Three
    cases assist in determining the meaning of related.  The first is
Simpson
    (Receiver of) v. Lloyds Underwriters

(2008), 92 O.R. (3d) 551
    (S.C.).  This court expressly affirmed the analysis and conclusions of the
    application judge in
Simpson
: 2009 ONCA 327, at para. 1.  The other
    two cases are
Elfstrom, Smith & Co. v. Kansa Gen. Ins. Co.

(1988),
    29 B.C.L.R. (2d) 41 (S.C.) and
Dunn v. Chubb Insurance Co. of Canada
,
    2009 ONCA 538, 97 O.R. (3d) 701.

[60]

In
Simpson
, a real estate council responsible for overseeing the conduct
    of real estate brokers claimed on its insurance policy for consumer deposits lost
    due to thefts perpetrated by a real estate broker and her corporation.  A total
    of 22 claimants made 25 claims.  The councils insurance policy provided that
    each claim had a limit of $100,000, but the aggregate liability for a series of
    related occurrences was capped at $500,000.  The question for the application
    judge was whether the claims were separate occurrences or a series of related
    occurrences, for the purposes of the policy.

[61]

In
    answering that question, the application judge began by setting out dictionary
    meanings of related.  These included associated or connected with and of
    the same type; in the same group, category, etc.:
Canadian Oxford
    Dictionary
, 2d ed.,
sub verbo
related.  The application judge
    observed that if the court were to take the meaning of related as of the
    same type; in the same group, category, etc., any two acts of theft would be
    related, merely because they were thefts.  There would be no need for any other
    connection in terms of time, place or person.  In his view, this would be an
    unreasonable interpretation  not just any type of relation is necessary but a
    particular kind of relation (paras. 26-27).

[62]

At
    para. 28 of
Simpson
, the application judge found that because of the
    breadth of the meaning of related, its scope must be determined in the
    context of the policy in question.

[63]

After
    reviewing other provisions of the councils policy, he concluded that the
    policy was intended to protect individual consumers who provide deposits to a
    registered real estate agent or broker (para. 32).  The application judge then found
    that the thefts constituted 22 unrelated occurrences, one for each victim.  The
    fact that the thefts were part of a single scheme by the same person did not
    make them part of a series of related occurrences, save for the multiple claims
    by the same claimant.  Multiple frauds against the same victim were found to be
    related occurrences because the thief, the victim and the type of occurrence
    causing the loss were the same (para. 36).

[64]

In
Elfstrom
, a chartered accounting firm that acted as receiver-manager
    of a number of farm companies was sued for failing to: (1) consider and
    investigate the tax benefits that would have accrued to the companies had they
    pursued an amalgamation, and (2) properly manage the companies property.  The
    issue was whether these claims arose from related acts for the purposes of
    the firms insurance policy.

[65]

The
    court stated that it was necessary to consider the similarity or differences
    between the alleged errors, and the kind and character of the alleged losses. 
    It found that the claims were not related because the errors underlying the
    claims were different in kind and substance (p. 48).  While the errors were
    alleged against the same party acting in the same capacity, they were the
    result of separate failures of judgment by the firm.  The first claim was based
    on a failure to advise or propose amalgamation, an error arising from a failure
    to properly exercise accounting expertise, whereas the other claim arose from
    failures with respect to preservation of property (hay and equipment).

[66]

In

Dunn
, this court considered, among other things, whether two
    schemes alleged to have been perpetrated by directors and officers of Nortel
    Networks Limited were Interrelated Wrongful Acts, for the purposes of the
    directors and officers liability insurance policy.  Interrelated Wrongful Acts
    was defined to mean all causally connected
Wrongful Acts
 (emphasis in
    original).

[67]

The
    first scheme, allegedly perpetrated in 2001, was a revenue recognition scheme in
    which material amounts of revenues were accelerated into the previous quarter. 
    The second scheme, allegedly perpetrated in 2003, was an earnings management
    scheme in which the company improperly established, maintained, and released
    reserves to smooth its quarterly earnings.

[68]

The
    appellants argued that the second scheme arose out of, or was causally
    connected to, the first scheme because they were the result of a culture of
    non-compliance throughout the whole period.

[69]

This
    court disagreed.  At paras. 58-59, it held that the allegations of misconduct
    in the two schemes were different in nature, kind and time.  The allegations
    underlying the first scheme related to different acts of non-compliance than
    those in the second scheme and the acts took place at different time frames and
    in different ways.

[70]

From
    these cases, I conclude that in determining whether the two claims in the
    Statement of Claim arise from related errors, omissions or negligent acts, the
    court should be informed by the dictionary meaning of the word related: two
    or more errors, omissions or negligent acts are related when there is a sufficient
    association or connection between them, reading the Policy as a whole and
    bearing in mind its objective.  In determining whether there is a sufficient
    association or connection, the court must consider the similarities and
    differences between the nature and kind of the alleged misconduct which
    underlies each claim, and the kind and character of the losses for which
    recovery is sought in each claim.  It will be noted that I have not included
    differences in timing between the two sets of allegations, as the court did in
Dunn
. 
    The reason is the wording of Part V(b)(ii) which, it will be recalled,
    specifically provides regardless of  the time or times the error(s), omission(s)
    or negligent act(s) took place.

The Claims

[71]

In
    considering the claims in the Statement of Claim, the court must look at the
    particular alleged errors, omissions or negligent acts underlying them.  It is
    not sufficient to identify, at a general level, the relationship or obligations
    between the parties or the nature of the losses alleged to have been suffered. 
    At a sufficiently general level, there is little doubt that the claims are
    related.  After all, at a general level, the claims can be said to be
    identical.  The players are the same  Angelo and Mr. Wigle and the law firm in
    which he was a partner.  The relationship between them is the same  that of solicitor-client. 
    The alleged wrongdoing is the same  breach of fiduciary obligation.  And, the alleged
    losses are the same  damages for breach of fiduciary obligation.

[72]

But
    the case law warns against approaching this matter at that general level: see
Simpson
,
    at para. 27; and
Dunn
, at para. 58.  Moreover, the plain wording of the
    Policy calls for a consideration of the specific allegations underlying each
    claim.  Part V(b)(ii) dictates that the court must determine whether the claims
    arise from related errors, omissions or negligent acts.  Therefore, it is
    necessary to look behind general labels and consider the specific alleged
    errors, omissions or negligent acts that underlie each claim.

[73]

Such
    a consideration begins with a clear understanding of the claims advanced in the
    Statement of Claim.  As I have explained, after taking into consideration the
    claims that have been abandoned, the Statement of Claim fundamentally advances
    two claims.

[74]

The
    first claim arises from the allegedly improper appointment of Mr. Wigle and the
    CIBC as committees of Angelos person and estate (the Committee claim).  The alleged
    error, omission or negligent act underlying this claim is the appellants
    failure to disclose crucial information to the court that heard the Committee
    Application: namely, that in his powers of attorney, Angelo had named Richard
    Agro as his alternate attorney. The losses for which recovery is sought are damages
    representing the fees, charges and expenses that Angelos estate incurred as a
    result of Mr. Wigle and the CIBC being appointed as Angelos committees.

[75]

The
    second claim arises from the allegedly negligent administration of Angelos
    estate (the Real Property claim).  The alleged errors, omissions or negligent
    acts relate to the appellants sale of six properties in which Angelo had an
    interest, including the failure to have two of the properties brought within
    the Waterdown urban expansion area.  The damages claimed are for the diminution
    in the value of Angelos estate resulting from the improvident or unnecessary sales
    of the properties.

Do the Claims
    Arise from Related Errors, Omissions or Negligent Acts?

[76]

In
    my view, the two claims in the Statement of Claim arise from errors, omissions
    or negligent acts that are sufficiently different in nature and kind that they
    are not related within the meaning of the Policy.

[77]

Let
    us begin by comparing the specific allegations of misconduct underlying each of
    the claims.  The Committee claim is based on Simpson Wigles instrumentality,
    in 1993, in the allegedly improper appointment of Mr. Wigle and the CIBC as
    committees of Angelos person and estate.  The specific misconduct is their failure
    to disclose the appropriate information to the court during the Committee Application. 
    The Real Property claim, on the other hand, arises from the allegedly
    improvident or unnecessary sales of six parcels of land in 1996 and 1997.  The
    alleged errors, omissions or negligent acts include the failure to take the opportunity
    to increase the value of two of those properties through inclusion in a
    designated Waterdown urban expansion area.  Instead of an error of omission or
    negligence (failure to include the requisite information in the court
    documentation), the Real Property claim is based on allegations of active
    mismanagement (selling at improvident values and unnecessarily) and the failure
    to take steps outside of a court process, namely, to have the designation of
    two properties changed.

[78]

It
    is clear that the allegations underlying the two claims are different in nature
    and kind.

[79]

So,
    too, is the nature of the alleged losses for which recovery is sought in the
    two claims.  The Committee claim seeks recovery for losses representing the
    costs, fees and expenses arising from the allegedly wrongful appointment of Mr.
    Wigle and the CIBC as Angelos committees.  The Real Property claim seeks
    recovery for the diminution of Angelos estate due to the improvident or
    unnecessary sales of properties in which he had an interest.  The two types of
    recovery are different in kind and character.

[80]

Moreover,
    from a legal perspective, there is an insufficient association or connection
    between the two claims because they stand independently of one another.  Regardless
    of the propriety of the appointment of Mr. Wigle and the CIBC as Angelos
    committees in 1993, it may be that one or more of the parcels of land was improvidently
    sold.  The court could find that the committees were wrongfully appointed but that
    the sales of the real property did not amount to negligent administration of
    Angelos estate.  Conversely, the court could find that the committees were
    properly appointed but that one or more of the sales was negligently
    performed.

[81]

Thus,
    as I have said, the two claims arise from allegations of errors, omissions and
    acts, which are sufficiently different in nature and kind that they are not
    related, within the meaning of the Policy.

[82]

I
    conclude on this point by noting that the issue raised in this appeal is
    whether the Statement of Claim raises one or more claims.  That is, the court
    was not asked to determine whether the Statement of Claim raises more than two
    claims.  Specifically, the court was not asked to determine whether the Real
    Property claim could be said to constitute more than one claim.

DISPOSITI ON

[83]

Accordingly,
    I would allow the appeal, set aside the Judgment, grant the Application, and
    issue an order declaring that the Statement of Claim contains more than one claim
    within the meaning of the Policy.

[84]

I
    would order costs of the appeal in favour of the appellants, fixed at $7,500, plus
    applicable taxes but inclusive of disbursements.  In light of the result on
    appeal, the issue of the costs below must be revisited.  If the parties are
    unable to agree on that matter, I would direct them to return to the
    application judge to have those costs decided.

Released: June 25, 2014 (E.E.G.)

E.E. Gillese
    J.A.

I agree. K. van Rensburg J.A.

I agree. C.W. Hourigan J.A.





[1]

Professional Services is defined as: [T]he
    practice of the Law of Canada, its provinces and territories  and shall
    include  those services for which the INSURED is responsible as a lawyer
    arising out of such INSUREDs activity as a trustee, administrator, executor,
    arbitrator, mediator, patent or trademark agent.


