[2011] O.J. No. 2182

2011 ONSC 2633

Ontario Superior Court of Justice

P.B. Hambly J.

May 2, 2011

An application - by an owner of a shopping mall for an order that a contractor and its insurer assume its defence in an action - was permitted against the contractor and dismissed against the insurer.

On January 10, 2004 the plaintiff slipped and fell at a shopping mall owned by Cadillac Fairview Corporation Ltd. (“Cadillac Fairview”). She subsequently commenced an action against Cadillac Fairview and the company that it had hired to take care of ice and snow removal at the mall, Jamesway Construction Ltd. (“Jamesway”). Cadillac Fairview applied for an order that Jamesway and its insurer, the Dominion of Canada (“the Dominion”), indemnify and assume Cadillac Fairview’s defence.

At the time of the application the evidence suggested that the fall occurred outside the entrance to the mall, an area that Jamesway was to remove ice and snow from and apply calcium chloride to, pursuant to the terms of the contract. The contract also provided that Jamesway would release Cadillac Fairview from every claim in connection with work performed by Jamesway, including any claims arising from personal injuries. Additionally, Jamesway was to obtain a contract of general liability insurance in the names of Jamesway and Cadillac Fairview. Jamesway insured itself, but did not insure Cadillac Fairview.

The Court found that it was entirely possible a claim against Cadillac Fairview covered by the snow removal contract with Jamesway could succeed. If Jamesway had added Cadillac Fairview as a named insured there would be no difficulty as the insurer would be obliged to provide a defence for it. Because Jamesway failed to do so, it was obliged to provide Cadillac Fairview with a defence. There was no privity of contract between the Dominion and Cadillac Fairview and therefore the application against it was dismissed.