The appeal was allowed.  The Court of Appeal concluded that there was no duty to defend the respondent.

The appellant, Meloche Monnex, appealed from a judgment declaring that it had a duty to defend the respondent for civil assault and battery.  The respondent was sued by Skidmore for injuries allegedly sustained in a physical altercation.  The respondent took the position that the claim against him by Skidmore fell under the coverage of his home owner’s policy.  Meloche Monnex relied upon the exclusion in the policy for damages arising from intentional acts.  The respondent argued that he was acting in self defence when he hit Skidmore and therefore it was not an intentional act.

The Court of Appeal considered whether extrinsic evidence, beyond the statement of claim such as the statement of defence and affidavits, could be considered in determining if there was a duty to defend.  However, the Court of Appeal concluded that whether or not additional materials were considered, the result was the same.  If the plaintiff in the action succeeded, he would have to prove that there was an assault which is an intentional act which is excluded from coverage.  If the plaintiff did not succeed in the action, then there was nothing to indemnify and therefore no insured claim.

Although the claim referred to negligence, the gravamen of the claim was assault and battery. The Court of Appeal rejected the possibility of the claim succeeding in negligence in the absence of an assault.  The Court of Appeal allowed the appeal and set aside the application judge’s decision and replaced it with a dismissal of the application.

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