CITATION: Indigo Books & Music Inc. v. The Manufacturer’s-Life Insurance Company, 2009 ONCA 885
DATE: 20091211
DOCKET: C50336
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Laskin and Rouleau JJ.A.
BETWEEN
Indigo Books & Music Inc.
Applicant (Appellant)
and
The Manufacturer’s-Life Insurance Company
Respondent (Respondent in Appeal)
Richard R. Minster, for the appellant
Phillip Sanford and Tara L. Piurko, for the respondent
Heard & released orally: December 10, 2009
On appeal from the judgment of Justice Thomas R. Lederer J. of the Superior Court of Justice dated March 18, 2009.
ENDORSEMENT
[1] The appellant argues that the application judge erred in that he did not objectively consider the words of the contract and did not consider the context in which the contract was negotiated. We disagree.
[2] The application judge considered both the words of the contract and the context. The relevant portion of the clause in issue provides that, where there is no separate allocation of the taxes by the assessing authority, the respondent can use the working papers if these are deemed sufficient by respondent. By providing that it was up to the respondent to decide whether the working papers were “deemed sufficient” the lease gave the respondent a discretion. In thorough reasons, the application judge concludes that the respondent’s decision not to use the working papers was both consistent with the lease viewed as a whole and viewed in context. He also found that the respondent’s decision was objectively reasonable. We see no basis to interfere with these findings.
[3] The appellant also argues that the application judge erred in considering the reliability of working papers generally and ought to have limited its consideration to the reliability of the working papers with respect to these premises. We would not give effect to this submission. The case law properly points out that working papers are not intended to apply to individual premises. From the respondent’s perspective, the unreliability of the working papers when applied to each individual tenant is a legitimate consideration.
[4] In our view, therefore, the application judge did not err in taking this systemic uncertainty into account in determining the reasonableness of the respondent’s decision not to deem the working papers sufficient for the allocation of taxes.
[5] The appeal is dismissed with costs fixed at $5,000 all inclusive.
“W. Winkler C.J.O.”
“John Laskin J.A.”
“Paul Rouleau J.A.”