



COURT OF APPEAL FOR ONTARIO

CITATION:
Cain v. 1150320 Ontario Inc.
(The
    Antique Shoppe), 2012 ONCA 920

DATE: 20121227

DOCKET: C55670

Cronk, Juriansz and Pepall JJ.A.

BETWEEN

Michael Cain

Plaintiff/Respondent

and

1150320 Ontario Inc. c.o.b. as The Antique Shoppe
, Neil
  Perry, Bluewave Energy LP., Trevor Bennett c.o.b. Trevor
  Bennett Oil Tank Installation, Mary Eileen Stephenson, R.H.
  Thomson & Sons Ltd. and Houle Chevrier Engineering Ltd.

Defendants/
Appellant

and

2118194 Ontario Inc.
    c.o.b. Marlborough Pub and Donald Ferguson c.o.b. Ferguson Haulage &
    Equipment Rentals

Third Parties

and

1496369 Ontario Inc.

Fourth Party

Joseph Y. Obagi, for the appellant

Michael S. Hebert and Cheryl Gerhardt McLuckie, for the
    respondent

Heard:  December 19, 2012

On appeal from the judgment of Justice Monique Métivier of
    the Superior Court of Justice dated May 22, 2012, with reasons reported at 2012
    ONSC 3018.

ENDORSEMENT

[1]

The respondent lessor sued the appellant lessee and others for damages
    arising from the escape of oil from the appellants above ground storage tank.

[2]

The appellant brought a motion for the determination, before trial, of a
    question of law, pursuant to rule 21.01(1)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. At issue was whether the parties
    commercial lease contained an express or implied covenant by the respondent to
    insure against the loss such that the respondents action against the appellant
    would be barred.

[3]

The motion judge determined that the lease did not contain such an
    express or implied covenant and that the respondent was therefore able to
    proceed with his action.

[4]

Both counsel agreed that the applicable jurisprudence is unsettled.  An
    issue raised pursuant to rule 21.01(1)(a) should not be resolved against a
    party unless it is plain and obvious that it could not succeed at trial:
Friedmann
    Equity Developments Inc. v. Final Note Ltd.
(1998), 41 O.R. (3d) 712

(C.A.),
    at p. 718.

[5]

Based on the record before us and the state of the jurisprudence, it is
    not plain and obvious whether the lease contained a covenant to insure for the
    loss claimed by the respondent.  Accordingly, paragraph 1 of the judgment,
    which addresses this issue, is set aside without prejudice to the parties to
    advance their respective positions at trial.

[6]

That said, we agree with the motion judges conclusion that the
    appellants motion for an order dismissing the action and crossclaims against
    it should be dismissed.

[7]

The appeal is therefore allowed in part. The appellant is entitled to its
    costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements
    and all applicable taxes.

E.A. Cronk J.A.

R.G. Juriansz J.A.

S.E. Pepall J.A.


