have to retain counsel on their own to defend themselves in the
main action, as the applicant would not be providing them with
a defence. The applicant now seeks a declaration that it was correct in taking that position.
 The applicant relies on the decision of this court in P. (G.) v.
J. (D.),  O.J. No. 313,  O.T.C. 52 (S.C.J.), where a
minor plaintiff sued for injuries sustained in a sexual assault
perpetrated by the first defendant D.J., who was the husband of
the second defendant R.J. The claims against D.J. were for
intentional and criminal conduct leading to the plaintiff’s injuries, while the claims against R.J. were for negligence in failing
to protect the plaintiff. The court held that both D.J.’s and R.J.’s
acts were excluded under the insurance policy, which contained
an exclusion clause similar in terms to those at issue in the present application. Mossip J. reasoned that the language of the
clause, which excluded coverage for “bodily injury or property
damage caused by any intentional or criminal act or failure to
act”, encompassed either an intentional or criminal act or a non-intentional (
i.e., negligent) and non-criminal failure to act. The
applicant analogizes the position of R.J. to that of Shoup and
Moar, arguing that in both cases the negligent failure of those
defendants to take precautions that would have prevented the
plaintiff’s injuries falls within the “failure to act” term of the
 The scope of similar exclusion clauses has been considered by the Court of Appeal in recent years. In her factum,
Ms. Iwata, on behalf of Moar, cites a number of such decisions,
including Snaak (Litigation Guardian of) v. Dominion of Canada General Insurance Co. (2002), 61 O.R. (3d) 230,  O.J.
No. 1438 (C.A.), where the court held that in considering the
application of an exclusion clause one cannot lump all of the
separately insured persons together. Likewise, Ms. Nelson, on
behalf of Shoup, cites Godonoaga (Litigation Guardian of) v.
Khatambakhsh (2000), 49 O.R. (3d) 22,  O.J. No. 2172
(C.A.), where an action was brought against insured parents for
negligent supervision of their children who had assaulted the
plaintiff. Again, the court held that the claims against the parents amounted to separate torts, and that although the claim
alleged that the intentional assault was a consequence of the
negligence of the parents, those acts were directed at different
parties and could not be considered one and the same.
 All parties cite the Court of Appeal’s very recent decision in
Durham District School Board v. Grodesky (2012), 110 O.R. (3d)
76,  O.J. No. 1829, 2012 ONCA 270, the respondents in
order to support their argument and the applicant in order to