Ontario Court of Appeal cautions against using evidence outside statement of claim to determine a duty to defend

The Ontario Court of Appeal has cautioned against using ‘extrinsic’ evidence – evidence other than the allegations contained in a statement of claim – to determine an insurer’s duty to defend assault allegations under a homeowner’s policy.
In Meadows v. Meloche Monnex Insurance Brokers, Meloche Monnex appealed the decision of a lower court that found the insurer owed a duty to defend a youth identified here as ‘B.M.’ for an action brought for civil intentional assault and battery.
A plaintiff sued B.M. or $75,000 for injuries that he sustained in a physical altercation with B.M. in a Carleton University residence in September 2003.
B.M. believed Meloche Monnex had a duty to defend him under his homeowners’ policy. But Meloche Monnex claimed no duty to defend, noting the terms of the policy did not cover intentional acts of the kind described by the plaintiff.
In support of his argument, B.M. referred to his affidavit evidence and statement of defence, which alleged he was acting in self-defence.
Since acting in self-defence is not an intentional act, B.M. noted, the insurance policy did owe a duty to defend him.
The Ontario Superior Court agreed with B.M., ruling that Meloche Monnex had a duty to defend. But the Court of Appeal overturned the Superior Court decision.
In doing so, the Appeal Court cited case law in Moneco, in which the Supreme Court of Canada “expressed that caution should be used when looking beyond the statement of claim in order to determine the ‘substance’ and ‘true nature’ of the claim.”
Be that as it may, the Appeal Court ruled the insurer had no duty to defend, regardless of whether or not extrinsic evidence was referenced.
“The insurance policy at issue in the present case does not provide coverage for intentional torts,” the court found.
“The practical result therefore is that if the plaintiff in the action succeeds, he will have shown it to be an assault. This is an intentional act and is excluded from coverage.
“If the plaintiff does not succeed in the action [i.e. it was not an assault because B.M. acted in self-defence], there is nothing to indemnify and, therefore, no insured claim.”