[ 157] The appellant also argues that the trial judge erred in
allowing the evidence of the respondent, given by affidavit, to remain
in the record where it contained opinions that could only be given by
an expert. The trial judge was alive to this issue; he ruled in a pre-trial admissibility motion that the respondent’s affidavit, where it
deposed to matters outside his personal knowledge and contained
opinions, would not be relied on as evidence but simply as
a description of positions that had to be proven by admissible
evidence. The trial judge did not rely on any opinions of the
respondent that could only be given by an expert. The appellant’s
objection that the trial judge should have gone on to “redline” out
offending portions of the respondent’s affidavit elevates form over
substance in these circumstances.
[ 158] I would not give effect to the appellant’s arguments about
the trial judge’s fact-finding.
[ 159] I would dismiss the appeal. In accordance with the parties’
agreement, I would award costs of the appeal to the respondent in
the amount of $100,000, inclusive of disbursements and applicable
Marvelous Mario’s Inc. et al. v. St. Paul Fire and
Marine Insurance Co.
Sweet-Ease Inc. et al. v. St. Paul Fire and
Marine Insurance Company
[Indexed as: Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co.]
2019 ONCA 635
Court of Appeal for Ontario, Hourigan, Paciocco and Fairburn JJ.A.
July 31, 2019
Insurance — Interpretation and construction — Plaintiffs in the food
industry suffered losses due to meal moth infestation — Plaintiffs commenced two actions against their insurer, for the lost leasing income and
failure to repay a loan, the second for theft by a receiver of equipment
and assets resulting in business interruption losses — Trial judge
correctly dismissed the first action on the ground that the infestation
was the insured peril — Trial judge in the second action dismissed the
property claim as time-barred but allowed the business interruption
claim in part by applying a rolling limitation period — Insurer’s
obligation to indemnify was not a recurring contractual obligation so
a rolling limitation period did not apply — Both actions dismissed.