The Court of Appeal dismissed an appeal by the Insurer from a decision granting leave to admit an Affidavit and finding that the Insurer had a duty to defend

McLean (Litigation Guardian of) v. Jorgenson, [2005] O.J. No. 5207, Ontario Court of Appeal

This was an appeal by the Insurer TD General Insurance Company (“TD”) from a decision granting leave to admit an Affidavit and finding that the Insurer had a duty to defend.

The Plaintiff McLean and his family sued the Insured Jorgenson family alleging that the Plaintiff McLean was seriously injured while revving the engine of a snowmobile under the direction of Mr. Jorgenson in an attempt to start it. The Jorgenson Defendants brought a motion for determination of whether the automobile Insurer TD, and/or their Property Insurer Germania Farmers’ Mutual Fire Insurance Company, (“Germania”) had a duty to defend the action on their behalf and sought leave of the court to have the Affidavit of Mrs. Jorgenson considered by the motion judge. The Affidavit contained evidence that all of the family’s other vehicles were insured with TD which was a pre-condition for coverage under the TD policy. The motion judge granted leave to admit the Affidavit, found that TD had a duty to defend but that Germania did not and granted costs against TD to indemnify the Jorgensons for the costs of bringing the motion.

The Ontario Court of Appeal dismissed the appeal holding that to fetter the motion judge’s discretion so as to preclude admission of evidence that all of the family’s other vehicles were insured with TD as stated in the affidavit of Mrs. Jorgenson, would be contrary to the interests of justice. It was undeniable that the incident arose from the attempted repair of a snow mobile. Accordingly, there could be no dispute that the injury was caused by the ownership, use or operation of a motor vehicle. The case law is clear that a snowmobile is a motor vehicle designed for travel on public roads so long as they are covered in snow. Accordingly, the motion judge’s conclusion that the snowmobile in issue was a “motorized snow vehicle” within the definition of automobile in the TD policy and not a recreational vehicle covered under Germania’s policy was unassailable.

The Court of Appeal distinguished this case from Derksen v. 539938 Ontario Ltd., [2001] 3 S.C.R. 398, on the basis that the Statement of Claim failed to plead a true concurrent cause of action that fell outside of Germania’s exclusion clause, or similarly outside of TD’s coverage clause. This was because the Statement of Claim did not properly plead any causes of action that were unrelated to the ownership, use or operation of the snowmobile.

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