The Insurer who issued a homeowner’s policy, rather than the Insurer who issued a commercial policy, was required to defend the Insured with respect to an action concerning a slip and fall at his residence even though the action was related to the Insured’s business activities

Chard v. Dominion of Canada General Insurance Co., [2004] O.J. No. 762, Ontario Superior Court of Justice

The Insured’s residence was at times used as part of his business, in that a room in the basement was used for paperwork and certain employees sometimes picked up cheques from that residence. In February 2003, H attended to pick up a paycheque. She slipped and fell on the Insured’s driveway and subsequently commenced an action for damages. The Insured had a homeowners policy with Dominion and his company had a commercial policy with Wawanesa. Both insurers denied coverage and the Insured commenced an application to determine which Insurer was required to respond.

The Court held that it could not go beyond the pleadings in determining which insurer had a duty to defend. In this regard, there was no mention in the Statement of Claim of business being conducted on the premises. Nor was the corporation a named Defendant. As such, the homeowner insurer, Dominion, had the duty to defend. The court further held that the Insured fell within the exception to the “business activity exclusion” under the Dominion policy as the alleged activity which led to the loss (failure to shovel snow) was of a personal nature in the course of his occupation and was within the scope of his employment activities as that term was approved in the policy.

Dominion therefore had a duty to defend the Insured in the overlying action.

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