Canada: Window Cleaning And The "Your Work" Exclusion Clause In A CGL Policy

Last Updated: May 16 2017
Article by Zachary Rogers

The Court of Appeal for Ontario recently upheld a "your work" exclusion in a Commercial General Liability Policy in G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Company, 2017 ONCA 298. The insured, G & P Procleaners ("G & P"), was hired to provide window cleaning services at a newly constructed commercial building. During the cleaning, a number of windows were scratched as a result of unforeseen environmental conditions at the construction site (specifically, airborne cement debris from nearby stone cutting machines). On application of squeegees to the windows, cement debris that had accumulated on the wet windows scratched the surface of the glass. G & P paid the owner of the building to replace the damaged windows, and then sought reimbursement from its insurer under its CGL Policy. Coverage was denied pursuant to a "your work" exclusion in the policy.

G & P brought an action against its insurer seeking indemnification under the policy. The insurer brought a motion for summary judgment to dismiss the action on the ground that exclusions applied. The motion was granted and the claim was dismissed; the judge ruled that G & P's claim was barred by two exclusions in the policy and there was, therefore, no genuine issue requiring a trial. G & P appealed, and the Court of Appeal for Ontario upheld the decision of the lower court.

Policy Language

The Court of Appeal for Ontario confirmed that in a claim for coverage, the insured must first demonstrate that a claim fell within the initial grant of coverage. In G & P's case, the initial grant of coverage in the policy insured against "occurrences", provided as follows:

  1. Insuring Agreement

We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of "bodily injury" or "property damage" to which this insurance applies ... this insurance applies only to "bodily injury" and "property damages" which occurs during the policy period. The "bodily injury" or "property damages" must be caused by an "occurrence". ... [emphasis added]

The term "occurrence" was defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

Once it is established that the claim falls within the initial grant of coverage, the onus shifts to the insurer to establish that an exclusion applies. In this case, the insurer denied coverage under the terms of the policy on the basis that P & G's claim fell within the "your work" exclusions, which provided:

  1. Exclusions

This insurance does not apply to:


(h)        "property damage" to:


(v)        that particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the "property damage" arises out of those operations; or

(vi)       that particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it.

The term "your work" was defined in the policy as meaning:

(a)          Work or operations performed by you [the insured] or on your behalf; and

(b)          Material, parts or equipment furnished in connection with such work or operations.

Argument on Appeal

On appeal, G & P argued that the motion judge erred in holding that the "occurrence" was the scratching of the windows. It argued that the "occurrence" was the confluence of the various environmental factors, including the debris produced by the stone cutting machines, which established the conditions for the scratching of the windows. That argument was rejected.

The Court of Appeal confirmed that an "occurrence" in this context is an event that causes property damage that is neither expected nor intended by the insured. The environmental factors did not cause the scratches to the windows; they were merely the conditions in which G & P's workers chose to clean the windows. The cleaning of the windows using the squeegees was expected and intended, but the scratching of the windows, while they were being cleaned using the squeegees, was unexpected and unintended. Under the terms of the initial grant of coverage under the policy, the window damage was a claim that was potentially recoverable.

The Court of Appeal then considered whether exclusion 2(h)(v) applied. It found that no property damage occurred until G & P's workers performed their window cleaning duties by applying their squeegees to the windows. If the workers had chosen not to clean the windows while there was airborne cement debris, there would not have been property damage. Therefore, the property damage clearly did "arise out of" the operations of G & P. On that basis, the Court of Appeal upheld the decision of the motion judge which dismissed G & P's claim.

Although not necessary for the disposition, both the motion judge and the Court of Appeal found that exclusion 2(h)(vi) applied also.

Finally, G & P argued that the motion judge's interpretation of the policy rendered coverage illusory. The Court of Appeal disagreed, saying that CGL policies are generally intended to cover an insured's liability to third parties for property damage, other than to the property on which the insured's work is being performed. The policies do not insure the manner in which the insured conducts its business, nor do they generally cover the cost of repairing the insured's own defective or faulty work product.

Departure from Supreme Court of Newfoundland and Labrador (Court of Appeal)

It should be noted that in arriving at its decision the motion judge declined to follow the Supreme Court of Newfoundland and Labrador (Court of Appeal) decision in Lombard General Insurance Company of Canada v. Crosbie Industrial Services Limited, 2006 NLCA 55, where the Court considered a nearly identical exclusion clause. In that case, a fuel oil tank was destroyed following an explosion that occurred while the inside of the tank was being cleaned. That Court reviewed the "your work" exclusions and concluded that they were ambiguous because they failed to identify a relationship between an occurrence and the exclusions. The Court went on to find that the exclusions would apply only where there was incorrectly performed work with no occurrence.

On appeal, G & P argued that the motion judge erred in not following this decision. The Court of Appeal for Ontario, however, found that the Newfoundland and Labrador Court of Appeal's analysis in Crosbie was circular and inconsistent with the established principles for the interpretation of contracts of insurance. As stated above, the first step of the coverage analysis is a determination of whether the claim falls within the initial grant of coverage. In order for there to be coverage, there must first have been an occurrence. A Court will not take the next step of considering whether an exclusion applies in the absence of an occurrence. Thus, the Court's conclusion in Crosbie that the "your work" exclusions applied only in the absence of an occurrence was not legally or logically sound and should not be followed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Zachary Rogers
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions