Gokstorp v. TD Insurance Meloche Monnex et al. [Indexed as: Gokstorp v. TD Insurance Meloche Monnex (No. 3)]

102 O.R. (3d) 239

2010 ONCA 313

Court of Appeal for Ontario,

Sharpe, Blair and MacFarland JJ.A.

April 30, 2010

Insurance -- Interpretation and construction -- Motion judge determining on Rule 21 motion that exclusion clause in insurance policy had no application to increased costs of repairing fire damage necessitated by complying with Building Code and by-laws -- Order and reasons not relying upon hypothetical or contingent facts and not disposing of any novel point of law -- Insurer's appeal dismissed.

On a motion for determination of a question of law under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge ruled that an exclusion clause in an insurance policy did not apply to the increased costs of repairing fire damage necessitated by bringing the building into compliance with the Building Code and by-laws. The insurer appealed.

Held, the appeal should be dismissed.

The order and reasons of the motion judge did not rest upon hypothetical or contingent facts and did not dispose of any novel point of law. The motion judge was entitled to make the Rule 21 disposition on the basis of the record before him.

APPEAL from the order of Little J. (2009), 2009 92122 (ON SC), 102 O.R. (3d) 235, [2009] O.J. No. 6119 (S.C.J.) determining a question of law.

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

William G. Woodward, for defendants (appellants). John Norton, for plaintiff (respondent).

Endorsement

[1] BY THE COURT: -- The appellant raises two grounds of appeal in relation to the motion judge's Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] order: (1) that the question was hypothetical and contingent upon disputed facts and; (2) that the question raised a novel point of law that should be decided on a full record.

[2] We reject both grounds.

[3] In our view, when properly read, the order and reasons of the motion judge do not rest upon hypothetical or contingent facts nor do they dispose of any novel point of law. We read the order and the reasons as determining that the policy covers the cost of repairs of the fire damage including any increase in those costs as a result of building code or by-law requirements and that exclusion clause (o) has no application to such repairs. In our view, the motion judge was entitled to make that Rule 21 disposition on the basis of the record before him. The point of law had been dealt with by earlier decisions and was not novel.

[4] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $5,400 plus disbursements of $125.52 plus GST.

Appeal dismissed.