In a recent decision of the Superior Court of Quebec, Unique assurances c. Toiture Inkel Inc., the Court applied the exception to the exclusion clause for “professional fault” in the following circumstances and concluded that there was coverage.
The Defendant, Mr. St-Amour, was a tinsmith specialized in roofing and worked as such for many years, making and installing metal flashings.
The Defendant was hired in 2002 by Toiture Inkel Inc. as an appraiser and took care of the business development of the company, which was owned by his spouse.
In October of 2002, Defendant St-Amour was asked by his friend, Mr. Corriveau, the Plaintiff in this matter, to repair the roof of his home.
During the repair works, the membranes installed were not correctly adhering to their base because of the cold and humidity. St- Amour therefore used a plumber’s blow torch to speed the process. As Defendant St- Amour was leaving the site, a fire broke out and damaged the Plaintiff’s home.
Mr. Corriveau and his insurance company were Plaintiffs in this matter and sued Defendants Toiture Inkel Inc., their insurer Missisquoi-Fédération and Defendant St- Amour. The latter called in warranty his wife’s insurer Sécurité Nationale.
The parties admitted that the fire was caused by the repairs carried out by St-Amour, and also admitted the amount of damages sustained by Plaintiff.
The insurance company Missisquoi- Fédération denied coverage because the repairs on the roof involved the use of a blow pipe or another heating device. The Court agreed with this reasoning.
The insurer, Sécurité Nationale, argued that the claim was part of the exclusion for professional fault. The insurance policy defined “professional activity” as follows:
Professional activity, any activity from which a person derives its livelihood, whether a business, an occupation, a liberal profession, etc, […] the following are however excluded::
b) activities which, though exercised in the ordinary course of professional activities, are generally unrelated to the exercise of a profession. [Our translation]
To determine whether the exclusion applied, the Court had to decide whether the Defendant St-Amour was acting within the scope of his employment, as agent of Defendant Toiture Inkel Inc. or if he was acting on his own behalf.
The Court concluded that Defendant St- Amour was not exercising his professional activities at the time of the occurrence because the installation of membranes was not part of his profession as a tinsmith. The Court stated the following:
 […] The fact that he (Defendant St- Amour) possesses manual skills cannot suffice to deny coverage when he uses these skills other than his regular activities. [Our translation]
To conclude, the Court also considered the following evidence: the repair works were done on a Saturday; Defendant St-Amour was acting as a manager for the Defendant company; the Defendant company did not submit a quotation for these repairs, the deadline was discretionary and finally the invoicing was at the personal name of Defendant St-Amour.
Therefore, the Court granted the warranty action against Sécurité nationale.