Fischer v. Stewart Title Guaranty Company, 2014 ONCA 798

By Strathy C.J.O., Feldman, Lauwers JJ.A.
Ontario Court of Appeal
Oct 30, 2014


Frederick Fischer



Stewart Title Guaranty Company


Harvey A. Swartz, for the appellant

Anne M. Kennedy, for the respondent

Heard and released orally: October 30, 2014

On appeal from the judgment of Justice Nancy Mossip of the Superior Court of Justice, dated January 14, 2014.


[1]          The motion judge dismissed the appellant’s claim against his title insurer. The parties had agreed that it was appropriate to address the coverage issue on summary judgment.

[2]          The policy of insurance covered title risks. Title was defined as “the ownership of your interest in the land” and was described as “fee simple vested in Frederick Fischer”.

[3]          The policy covered among other things, the risk that the appellant’s land was unmarketable for any one of four reasons, all of which related to title and none of which applies here. It also covered the risk that the appellant’s title was unmarketable, allowing another person to “refuse to perform a contract to purchase, to lease or to make a mortgage loan”.

[4]          The motion judge found the previous use of the property as a marijuana “grow op” was not a title defect. That conclusion is unassailable. Even assuming the land was unmarketable, the title was marketable and was unencumbered by defects that would permit a purchaser to refuse to perform a contract of sale.

[5]          This conclusion is consistent with the U.S. authority cited by the respondent, particularly, the decision of the California Court of Appeal in Lickmill Creek Apartments v. Chicago Title Insurance Company (1991), 231 Cal. App. 3rd 1654.

[6]          In that case, at page 6, the court adopted the observation that:

The purpose of title insurance is not to protect the insured against loss arising from physical damage to property; rather, it is to protect the insured against defects in the title.

[7]          The appeal is therefore dismissed. Costs fixed at $3,500.00, all inclusive. 

“G.R. Strathy C.J.O.”

“K. Feldman J.A.”

“P. Lauwers J.A.”