



COURT OF APPEAL FOR ONTARIO

CITATION: Mori Essex Nurseries Inc. v. Northbridge General
Insurance Corporation, 2018 ONCA 452

DATE: 20180514

DOCKET: C64520

Rouleau, Roberts and Fairburn JJ.A.

BETWEEN

Mori Essex Nurseries Inc. and Mori-Vines Inc.

Plaintiffs (Appellants)

and

Northbridge General Insurance Corporation and
Lombard General Insurance Company of Canada

Defendants (Respondents)

Anne Juntunen, for the appellants

William Chalmers, for the respondents

Heard: May 11, 2018

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated October 3, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appeal was argued principally on the basis that the care custody or
    control exclusion did not apply so as to justify the respondents refusal to
    provide a defence to the appellant Mori Essex Nurseries (Essex).

[2]

The motion judge found that the insurer had no duty to defend because of
    the exclusions contained in the Essexs Commercial General Liability Policy. Essex
    appeals arguing that the claim includes damage that may have occurred after the
    vines left the care custody or control of Essex. As a result, Essex maintains
    that the care custody or control exclusion in the policy does not apply to some
    of the damage being claimed and the insurer must provide a defence.

[3]

We disagree. The motion judge properly focussed on the pleadings and the
    policy. He carried out a careful review and correctly found that, as they
    relate to Essex, the pleadings allege that any defect in the vines resulting in
    the damage claimed was caused by Essex negligent treatment of the vines when
    they were in its care custody or control. This triggers the care custody or
    control exclusion of the policy.

[4]

In any event, the motion judge also considered Pellers claim, as set
    out its pleading. As he explained in his reasons, Pellers allegation is that
    the damage was caused by fungus that affected 100% of the vines. This triggers
    a second exclusion in the policy, the exclusion for damage resulting from fungi
    or spores.

[5]

In conclusion, we see no error in the motion judges decision and the
    appeals are dismissed. The cross-appeal is dismissed as moot. Costs to the
    respondent fixed at $10,000 inclusive of disbursements and applicable taxes.


