CITATION: Grand & Toy Limited v. Aviva Canada Inc., 2010 ONCA 404

DATE: 20100604

DOCKET: C51512

COURT OF APPEAL FOR ONTARIO

Cronk, MacFarland and Karakatsanis JJ.A.

BETWEEN:

Grand & Toy Limited

Applicant (Appellant)

and

Aviva Canada Inc.

Respondent (Respondent in Appeal)

Vernol I. Rogers, for the appellant

Michael Quenneville and Michael Sloniowski, for the respondent

Heard and released orally: May 14, 2010

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated December 10, 2009.

ENDORSEMENT

[1] In our view, the application judge made no error in his interpretation of the coverage provisions of the insurance policy at issue. Accordingly, for the reasons that follow, the appeal must be dismissed.

[2] The application judge defined the issue clearly in paragraph [3] of his reasons, where he said:

The issue is scope of coverage: did the insurance policy in effect in 2003 cover only Grand & Toy’s retail outlets or did it also cover distribution centres?

[3] Further, the application judge accurately set out the law as it relates to the interpretation of policies of insurance in paragraph [5] of his reasons and clearly recognized that, absent ambiguity, the plain words of a policy must be given effect and that only where there is ambiguity may extrinsic evidence be admitted to assist in the resolution of that ambiguity.

[4] The application judge found the policy in question to be ambiguous in respect of the scope of coverage of the commercial general liability component of the policy and set out his reasons for his conclusions in paragraphs 6 through 9 of his reasons. While the appellant argues that the application judge did not consider or deal with other arguments it made to support its position that there was no ambiguity in the policy, we note that the application judge was not required to deal with each argument that the appellant made or each piece of evidence.

[5] Contrary to the appellant’s submission, the application judge’s analysis of the policy was not confined to an examination of only the policy declarations. We agree with the application judge’s finding of ambiguity. The appellant does not seriously dispute that, given his conclusion of ambiguity, it was open to the application judge to consider the extrinsic evidence of the party’s intentions regarding coverage. That uncontroverted evidence overwhelmingly supported the application judge’s holding that the policy did not respond to the incident in question.

[6] For these reasons, the appeal is dismissed.

[7] The respondent is entitled to its costs of the appeal, fixed in the amount of $5,873.00, inclusive of disbursements and G.S.T.

“E. A. Cronk J.A.”

“J. MacFarland J.A.”

“A. Karakatsanis J.A.”