



COURT OF APPEAL FOR ONTARIO

CITATION: Carter v. Intact Insurance Company, 2016 ONCA 917

DATE: 20161206

DOCKET: C60843

Laskin, Pepall and Brown JJ.A.

BETWEEN

Helene Carter, Edmond Blais and Donald Givogue

Plaintiffs (Appellants)

and

Intact Insurance Company

Defendant (Respondent)

Kevin P. Nearing and Natalia Rodriguez, for the
    appellants

Anthony J. Bedard and Jasmine T. Akbarali, for the respondent

Heard: April 28, 2016

On appeal from the order of Justice Kevin B. Phillips of
    the Superior Court of Justice, dated July 7, 2015, with reasons reported at
    2015 ONSC 4400, 52 C.C.L.I. (5th) 263.

Laskin J.A.
:


A.

Overview

[1]

For 24 years, the appellants owned an income property at the corner of
    MacKay Street and Beechwood Avenue in Ottawa. The property consisted of a mix
    of one, two and three storey buildings, containing 15 residential units and 13
    commercial units. The property was insured by the respondent Intact, from whom
    the appellants purchased replacement cost and building by-law coverage. Their
    insurance policy provided that replacement includes repair, construction or
    reconstruction with new property of like kind and quality.

[2]

In March 2011, a fire caused substantial damage to the appellants
    buildings. The appellants decided to demolish the entire site in order to build
    an eight and a half storey condominium. They sought compensation under the replacement
    cost and building by-law coverages in their insurance policy.

[3]

Intact refused to pay replacement cost on the ground that the proposed
    condominium was not a replacement, because it was not a new property of like
    kind and quality. For a similar reason, Intact also refused to pay for
    building code upgrades. Instead, Intact paid the appellants only the actual
    cash value of the damaged property.

[4]

The appellants began to build their condominium and sued Intact for
    replacement cost and an amount for building code upgrades under their building
    by-law coverage. They then brought a motion under r. 21 of the
Rules of
    Civil Procedure
[1]

to determine the coverage issues. Before the motion judge, they argued that
    they were entitled to replacement cost no matter what they built, because replacement,
    as defined in the policy, did not require that their new property be of like
    kind and quality. Alternatively, they argued that their proposed condominium
    was of like kind and quality.

[5]

The motion judge rejected both arguments. He interpreted the policy to
    mean that replacement cost is only available if the insureds property is of
    like kind and quality. He found as a fact that the proposed condominium was not
    of like kind and quality. Thus, the appellants were entitled only to the actual
    cash value of their damaged property (which Intact has paid). Although the
    by-law coverage issue was before him, the motion judge did not address it in
    his reasons.

[6]

The appellants do not appeal the motion judges factual finding that
    their proposed condominium is not of like kind and quality. They only raise two
    issues on appeal. First, did the motion judge err by holding that the proposed
    condominium was not a replacement entitling the appellants to replacement
    cost? Second, did the motion judge err by failing to hold that the appellants were
    entitled to an amount for building code upgrades?

[7]

I would dismiss the appeal. I agree with the motion judges conclusion
    on the first issue, and though he did not expressly address the second issue,
    his factual findings reasonably supported Intacts position on that issue.

B.

Brief Background

(1)

The amounts in issue

[8]

The parties resolved the amounts in issue by using the appraisal and
    arbitration process under s. 128 of the
Insurance Act
.
[2]
The arbitrator determined the following amounts:

·

actual cash value: $3,900,000;

·

replacement cost: $5,732,136.32; and

·

building code upgrades: $511,379.17

[9]

Intact has paid the appellants the actual cash value. Therefore, the
    appellants total claim in this litigation is $2,343,515.49 ($5,732,136.32
    minus $3,900,000 plus $511,379.17).

[10]

The appellants claim is under the policy limit, which was $7,614,750.

(2)

The insured property and the proposed condominium

[11]

The motion judge found that the appellants proposed condominium was not
    of like kind and quality to the insured property. As the following chart shows,
    that finding was well supported in the record. And, as I have said, it has not
    been appealed.



Quality

Insured Property

Proposed Condominium



Size

51,930 square feet

193,694 square feet



Height

Mix of one, two and three
          storey buildings

Eight and a half stories



Basement area

15,200 square feet

32,000 square feet



Number of residential
          units

15

129



Parking Spaces

42 (above ground)

165 (underground)



Elevators

None

Two



C.

The Issues

(1)

Did
    the motion judge err by holding that the proposed condominium was not a replacement"
    entitling the appellants to replacement cost?

(a)

Positions of the parties

[12]

In support of their overall position that they are entitled to
    replacement cost, the appellants make, in essence, three arguments. First, the
    motion judge erred by holding that his interpretation of the policy was necessary
    to address moral hazard. Second, the motion judge erred by failing to give
    effect to the word includes in the definition of replacement. Third, the
    motion judge wrongly distinguished the decision of the British Columbia Supreme
    Court in
Chemainus Properties Ltd. v. Continental Insurance Co
. (1990)
,
43 C.C.L.I. 146, which
    the appellants say is consistent with their position.

[13]

In response, Intact argues first, that to be entitled to replacement cost,
    the replacement must be of like kind and quality; second, that the motion
    judges interpretation is consistent with other provisions in the policy; and
    third, that the decision in
Chemainus
is distinguishable, or was
    wrongly decided and should not be followed.

(b)

The policy

[14]

The appellants insurance policy with Intact provided, as a starting
    point, for indemnity based on the actual cash value of the lost or damaged
    property. Clause 15 of the policy prescribed the basis of valuation for
    various categories of insured property. At the end of the list, sub-clause (f)
    set out the following basis of valuation for all other insured property under
    this form and for which no more specific conditions have been set out:

the actual cash value at the time and place of loss or damage,
    but not exceeding what it would then cost to repair or replace with material of
    like kind and quality.

[15]

The appellants, however, purchased two extensions of coverage, which are
    at the heart of this appeal. The first extension  the replacement cost
    extension  amended the basis of valuation from actual cash value to replacement
    cost. Under this extension, replacement cost was subject to several conditions,
    of which the most important was condition 1(b): the insured would only be
    entitled to replacement cost when replacement has been effected. In other
    words, the insured must actually replace the insured property to be entitled to
    replacement cost.

1.

The Insurer
    agrees to amend the Basis of Valuation from actual cash value to
    "replacement cost" subject to the following provisions:

(a)

"replacement"
    shall be effected by the Insured with due diligence and dispatch,

(b)

settlement on a
    "replacement cost" basis shall be made only when
    "replacement" has been effected by the Insured and in no event shall
    it exceed the amount actually and necessarily expended for such
    "replacement",

(c)

any other insurance effected
    by or on behalf of the Insured in respect of the insured perils under the Policy
    on the property to which this extension is applicable shall be on the basis of
    "replacement cost",

(d)

failing compliance by the
    Insured with any of the above provisions, settlement shall be made as if this
    extension had not been in effect.

[16]

Clause 4 of the extension defined replacement and replacement cost:

4.

Definitions

(a)

"replacement"
    includes repair, construction or re-construction with new property of like kind
    and quality, and

(b)

"replacement cost"
    means whichever is the least of the cost of replacing, repairing, constructing
    or re-constructing the property on the same site with new property of like kind
    and quality and for like occupancy without deduction for depreciation.

[17]

The interpretation of these definitions, especially the definition of
    replacement gives rise to the main issue on this appeal.

[18]

The second extension provided coverage for building code upgrades. I
    will deal with this extension when I discuss the second issue on the appeal.

(c)

Actual cash value, replacement cost and moral hazard

[19]

The following summary is taken from the decision of the British Columbia
    Court of Appeal in
Brkich & Brkich Enterprises Ltd. v. American Home
    Assurance Co.
(1995)
, 8
    B.C.L.R. (3d) 1, affd [1997] 1 S.C.R. 1149, the decision of Stinson J. in
Willoughby
    v. Pilot Insurance Company
, 2014 ONSC 95, 118 O.R. (3d) 604, and three secondary
    sources cited by the appellants: Leo John Jordan, "What Price Rebuilding?
    A Look at Replacement Cost Policies" (1990) 19 Brief 17; Jerome Trupin
    & Arthur L. Flitner,
Commercial Property Insurance and Risk Management
,
    5th Ed (Pennsylvania: American Institute for the Chartered Property Casualty
    Underwriters, 1998); and Johnny Parker, "Replacement Cost Coverage: A
    Legal Primer" (1999) 34 Wake Forest L. Rev. 295.

[20]

The insurance industry has marketed two types of protection for
    residential and commercial properties: actual cash value coverage and
    replacement cost coverage. Under actual cash value coverage, property is
    insured to the extent of its actual cash value. This coverage recognizes that
    the insurer is entitled to deduct reasonable depreciation from the value of the
    loss. Under replacement cost coverage, the insured is entitled to the full cost
    of repair or replacement without any deduction for depreciation.

[21]

A main objective of property insurance is indemnity, and a policy
    providing for actual cash value coverage is a pure indemnity contract. Actual
    cash value recovery puts insureds in the position they were in before the loss.
    Since most property depreciates over time, actual cash value is equivalent to
    replacement cost less depreciation. So actual cash value recovery prevents
    insureds from profiting or benefiting from their loss.

[22]

But actual cash value recovery poses a problem for insureds who want to
    build a similar structure to replace the insured property that was damaged or
    destroyed. Because of depreciation, these insureds will incur a cash shortfall,
    which they may not be able to afford, and which will thus prevent them from
    reconstructing their damaged structure.

[23]

Replacement cost insurance solves this problem. It goes beyond the
    notion of indemnity. It recognizes that depreciation, or the deterioration of a
    property over time, is an insurable risk. Replacement cost insurance, in
    effect, insures depreciation: the difference between replacement cost and actual
    cash value. So, under replacement cost insurance, if insureds do indeed repair
    or replace their damaged property, they are entitled to recover from their
    insurer the full cost of the repairs or the replacement. They can replace old
    with new. In that sense, even though replacement cost insurance makes
    insureds better off and violates the indemnity principle, it is justifiable,
    because without it, many property owners would be unable to cover the shortfall
    caused by the depreciation of their damaged or destroyed property.

[24]

But, allowing insureds to replace old with new raises a concern for the
    insurance industry. The concern is moral hazard: the possibility that insureds
    will intentionally destroy their property in order to profit from their
    insurance; or the possibility that insureds will be careless about preventing
    insured losses because they will be better off financially after a loss.

[25]

To put a brake on moral hazard, insurers will typically only offer
    replacement cost coverage if insureds actually repair or replace their damaged
    or destroyed property. If they do not, they will receive only the actual cash
    value of their insured property. Insurers also limit replacement cost coverage
    to an amount defined in the insurance policy. These two conditions  insistence
    on actual repair or replacement and limiting replacement cost to a defined
    amount  are found in the appellants policy with Intact.

[26]

With that background, I turn to the interpretation of the definition of
    replacement in the appellants insurance policy.

(d)

The interpretation
    of insurance policies and the standard of
review

[27]

The guiding principles for interpreting insurance policies are well
    established, and were concisely summarized by Rothstein J. in
Progressive
    Homes Ltd. v. Lombard General Insurance Co. of Canada
, 2010 SCC 33, [2010]
    2 S.C.R. 245, at paras. 21-24.

[28]

An insurance policy is a contract, and the primary goal of contract
    interpretation is to give effect to the intention of the parties. If the policy
    provision in question is unambiguous, the court gives effect to the parties
    intention by giving effect to the provisions plain and ordinary meaning. In
    doing so, and as interpretive aids, the court should take into account the
    provisions of the policy as a whole, the surrounding circumstances and the
    commercial atmosphere in which the insurance policy was contracted for, and
    the general purpose of insurance: see
Consolidated Bathurst Export Ltd. v.
    Mutual Boiler & Machinery Insurance Co.
, [1980] 1 S.C.R. 888, at para.
    26.

[29]

If the provision is ambiguous  that is, it is reasonably capable of
    more than one meaning  then the court applies the following rules: it should
    prefer an interpretation that is consistent with the reasonable expectations of
    the parties, as long as that interpretation can be supported by the text of the
    policy; it should avoid an interpretation that would give rise to an
    unrealistic result or that would not have been contemplated by the parties at
    the time the policy was contracted for; and it should strive for an
    interpretation that is consistent with similar provisions in other insurance
    policies.

[30]

If the rules for resolving ambiguity are inadequate, then the court
    should interpret the provision
contra proferentem
, against the
    offeror  that is against the party who drafted the policy, the insurer. In
    applying the rule of
contra proferentem
, courts should construe
    coverage provisions broadly and exclusion provisions narrowly.

[31]

In this case, as I will discuss, I am satisfied that the definition of replacement
    in the appellants policy is unambiguous and that the motion judge gave effect
    to its plain and ordinary meaning.

[32]

In some cases of contract interpretation the standard of appellate
    review is relevant. Because the definition of replacement is likely a
    standard provision in property insurance policies, the standard of review is
    likely correctness, not deferential: see
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co.
, 2016 SCC 37, 59 C.C.L.I. (5th) 173.
    But as I have concluded that the motion judge correctly interpreted the meaning
    of replacement, the standard of review in this appeal does not matter.

(e)

The interpretation of the definition of replacement

[33]

The appellants three main arguments for overturning the motion judges
    decision are: (i) he erred by saying that his interpretation was needed to
    address moral hazard; (ii) he erred by failing to give meaning to the word
    includes in the policys definition of replacement; and (iii) he erred by
    distinguishing
Chemainus
.

(i)

Moral hazard

[34]

The motion judge wrote, at para. 30 of his reasons, that replacement
    insurance must have restrictions in order to minimize the moral hazard inherent
    in it as much as possible. He held, at paras. 31 and 33, that requiring a
    replacement to be of like kind and quality minimized moral hazard.

I find that the
    insurance contract in question would have been entered into with an
    understanding that the basic tenets of insurance law would govern its
    interpretation. One of those tenets is the minimization of moral hazard when it
    comes to replacement insurance. In my view, the principal method by which moral
    hazard in this context is minimized is the expectation by both parties that
    lost property would be rebuilt with new property of like kind and quality.



Since the underlying principle of insurance is indemnity,
    replacement cost coverage should be construed in a fashion that is consistent
    with that concept. Betterment is to be avoided to the extent possible. I find
    this to be a rationale for a requirement that the replacement building be
    constructed with new property of like kind and quality. This restriction is an
    appropriate brake on the moral hazard risk.

[35]

The appellants submit that the moral hazard inherent in replacement cost
    insurance was fully addressed by the requirement in their policy that the
    replacement actually be carried out and by the policy limit on replacement cost
    recovery. In support of their submission, they rely on an oft-cited article by
    Leo John Jordan, What Price Rebuilding? A Look at Replacement Cost Policies,
    referenced above. At p. 19 of his article, Mr. Jordan reviews standard language
    in a replacement cost insurance policy, which limits the insureds recovery to
    the smallest of the following three measures:

(a) the amount of [the] policy applicable to the damaged or
    destroyed property;

(b) the replacement cost of the property or any part thereof
    identical with such property on the same premises and intended for the same
    occupancy and use; or

(c) the amount actually and necessarily expended in repairing
    or replacing said property or any part thereof.

[36]

Mr. Jordan then discusses the second limitation, (b), and makes the point
    that an insured is entitled to replacement cost no matter what replacement the
    insured chooses. The effect of the limitation in (b), according to Mr. Jordan,
    is that the insureds recovery is limited to what it would cost to replace a
    structure identical to the one lost, on the same premises.

This particular limitation does not require repair or
    replacement of an identical building on the same premises, but places that
    rebuilding amount as one of the measures of damage to apply in calculating
    liability under the replacement cost coverage. The effect of this limitation
    comes into play when the insured desires to rebuild either a different
    structure or on different premises. In those instances, the companys liability
    is not to exceed what it would have cost to replace an identical structure to
    the one lost on the same premises. Although liability is limited to rebuilding
    costs on the same site, the insured may then take that amount and build a
    structure on another site, or use the proceeds to buy an existing structure as
    the replacement, but paying an additional amount from his or her own funds.

[37]

In short, the appellants contend that requiring a replacement to be of
    like kind and quality is not necessary to put a brake on moral hazard. That brake
    is provided by the requirement that the insured carry out repair or
    reconstruction and by the policy limit on replacement cost recovery.

[38]

The appellants submission on moral hazard may well have merit. But even
    if it does, the appellants must still show that the provisions of their policy
    entitle them to replacement cost even though they are replacing their insured
    property with a new property that is not of like kind and quality. In other
    words, this appeal turns on the interpretation of the definitions of replacement
    and replacement cost in the policy.

(ii)

The definitions of replacement and replacement cost

[39]

For convenience, I again set out these two key definitions in the
    appellants insurance policy:

(a) "replacement"
    includes repair, construction or re-construction with new property of like kind
    and quality, and

(b) "replacement cost" means whichever is
    the least of the cost of replacing, repairing, constructing or re-constructing
    the property on the same site with new property of like kind and quality and
    for like occupancy without deduction for depreciation.

[40]

The motion judge concluded that to recover replacement cost, the construction
    must be effected with new property of like kind and quality to what was there
    before. The appellants submit that he erred in his interpretation of the
    definition of replacement.

[41]

The appellants say that the replacement definition is the how, and
    the replacement cost definition is the how much. They say that the motion
    judge erred, because he did not give effect to the word includes in the definition
    of replacement. The word includes, they contend, contemplates that the
    appellants can choose to replace their damaged buildings by means other than
    repair, construction or reconstruction. They can replace their insured property
    with a totally different building, a condominium, and still be entitled to
    replacement cost. The appellants submit that the phrase of like kind and
    quality modifies the enumerated methods of replacement: repair, construction
    or reconstruction. It does not modify an unenumerated replacement, such as
    their condominium.

[42]

The appellants add that though they are constructing a different and
    much larger building, that should be of no concern to Intact, because its
    liability is limited by the definition of replacement cost in the policy. The
    appellants are not seeking to recover the actual cost to build their
    condominium, only the replacement cost as defined in the policy.

[43]

I do not accept the appellants submission. A replacement is needed to
    trigger entitlement to replacement cost. And the plain and ordinary meaning
    of the definition of replacement in the policy is that to be entitled to replacement
    cost, the replacement, no matter how it is effected, must be of like kind and
    quality.

[44]

I agree with the appellants that the word includes in the definition
    of replacement means that the replacement can be effected by a method other
    than repair, construction or reconstruction, for example, by purchasing an
    existing building to replace the one that was lost. But whatever the method of
    replacement, whether enumerated or not, the actual replacement must be of like
    kind and quality. That phrase, of like kind and quality, modifies or anchors
    all methods of replacement.

[45]

To give effect to the appellants interpretation would either be
    illogical, or would render the phrase of like kind and quality meaningless.
    It would be illogical to interpret the definition of replacement to mean that
    a replacement by repair, construction or reconstruction must be of like kind
    and quality, but a replacement by any other method need not be. And to
    interpret the definition of replacement as allowing any kind of replacement
    would make the modifying phrase of like kind and quality meaningless. The
    appellants interpretation would make sense only if the phrase new property of
    like kind and quality were eliminated and the definition simply read:
    replacement includes repair, construction or reconstruction.

[46]

The motion judges interpretation is also consistent with another important
    clause in the replacement cost endorsement, and it better reflects the
    indemnity principle, which typically underlies insurance contracts.

[47]

Clause 2 under the replacement cost endorsement stipulates that if new
    property of like kind and quality cannot be obtained, then new property as
    similar as possible to that lost or damaged and which is capable of performing
    the same function shall be deemed to be new property of like kind and quality.
    This clause reinforces my conclusion that the replacement must be of like kind
    and quality.

[48]

Finally, as I said earlier, indemnity is a main objective of insurance
    and, to the extent possible, coverage provisions should be interpreted with
    that objective in mind. Replacement cost coverage does go beyond mere
    indemnification of an insured because it allows for a measure of betterment.
    But allowing replacement cost only where the replacement is of like kind and
    quality to the damaged or destroyed property better reflects the indemnity
    principle. Replacement cost would then give insureds enough money to rebuild
    something equivalent to the property that was damaged or destroyed.

[49]

I conclude that the motion judge was correct in his interpretation of
    the appellants insurance policy with Intact. The appellants were entitled to
    replacement cost only if they replaced their insured property with a new
    property of like kind and quality. As they do not propose to do so, they were
    entitled only to the actual cash value of their insured property. This
    conclusion is sufficient to decide the appeal. For completeness, however, I
    will briefly address the decision in
Chemainus
.

(iii)

Chemainus

[50]

In
Chemainus
, a fire had destroyed the insureds building. The
    insured had purchased replacement cost coverage. The replacement provision in
    the insureds policy was similar, but not identical to the definition of replacement
    in the appeal before us. It read: replacement includes repair, construction or
    reconstruction with
materials
of like kind and
    quality (emphasis added). To replace its destroyed property, the insured
    decided to purchase an existing building on another site. The insured then
    demanded an amount equivalent to replacement cost, as provided for in the
    policy. When the insurer refused to pay, the insured sued.

[51]

The trial judge found for the insured. He held that the replacement
    provision in the policy was not a definition. He resorted to the dictionary
    definition of replace  take the place of, or provide substitution for  and
    held that the existing building the insured had purchased was a replacement
    under the policy. At paras. 47 and 48 of his reasons, the trial judge rejected
    the insurers argument that the replacement building had to be constructed with
    materials of like kind and quality:

There was no requirement that the replacement building be
    constructed with materials of "like kind and quality". Had the insurer
    wished to import that limitation into the definition of replacement, it could
    have done so. It did provide that replacement includes "repair,
    construction or reconstruction with materials of like kind and quality",
    but the plaintiff did not do any of these things when it replaced and it was
    not compelled to.

The "replacement cost" provision in the endorsement
    has nothing to do with the concept of replacement. Clearly, replacement cost is
    not the cost of replacement. The replacement cost provision established
    financial parameters for indemnification. It was a formula that both parties
    could look to: one to see its exposure to indemnify, the other to see what it
    could expect to receive if it replaced. The policy gave the insured the right
    to choose how to effect replacement, but it provided the insurer with a limit to
    its liability, and the "cost replacement" provision defined the
    limit. If an insured wished to be a spendthrift when effecting replacement, the
    insurer was not at risk.

[52]

Although the wording of the replacement provision in
Chemainus
differs from the wording of the definition of replacement in the present
    case, I agree with the appellants that this difference does not distinguish the
    two cases. I accept that the trial judges interpretation of the provision for
    replacement in
Chemainus
differs from mine. Respectfully, for the
    reasons I have already discussed, I do not agree with his interpretation. I
    think it is at odds with the plain and ordinary meaning of the definition in
    the appellants policy. And although interpreting similar insurance provisions consistently
    is desirable, I do not feel bound to follow a trial decision, which was given a
    quarter of a century ago and has never received appellate approval.

[53]

I would not give effect to the appellants position on this first and
    main issue on the appeal.

(2)

Did the motion judge err by failing to hold that the appellants were
    entitled to an amount for building code upgrades?

[54]

The appellants had purchased an extension of coverage for building
    by-laws, in substance, an amount for building code upgrades required by their
    replacement structure. The appellants asked for this amount in their Notice of
    Motion, but the motion judge did not address their claim. Nonetheless, the
    parties agree that we can deal with the issue, as the material facts are not in
    dispute. The relevant portion of the extended coverage for building by-laws is
    as follows:

This insurance is,
    without increasing the amount of insurance, and only as a result of an insured
    peril, extended to indemnify the Insured for:



(c)

any increase in the cost of
    repairing, replacing, constructing or reconstructing the "building"
    on the same site or on an adjacent site, of like height, floor area and style,
    and for like occupancy:

arising from the enforcement of the
    minimum requirements of any by-law, regulation, ordinance or law which

(i)

regulates zoning
    or the demolition, repair or construction of damaged "buildings" and

(ii)

is in force at the
    time of loss or damage.

[55]

As is evident from the wording of clause (c), entitlement to an amount
    for building code upgrades parallels entitlement to replacement cost. And just
    as the appellants are not entitled to the latter, they are not entitled to the
    former. Their proposed condominium does not satisfy the requirements of clause
    (c).

[56]

The appellants condominium is not of like height to their insured
    property: it is eight and a half stories high compared to one, two or three
    stories high. It is not of like floor area: the condominium is almost four
    times as large as the floor area of their insured property. It is not of like
    style, as it has many features, such as elevators and underground parking, which
    were not contained in the appellants insured property. And it is obviously not
    of like occupancy: the condominium will have 129 residential units; the insured
    property had only 15.

[57]

The appellants are therefore not entitled to any amount for building
    code upgrades for their condominium. I would not give effect to the appellants
    position on this issue.

D.

Conclusion

[58]

I would dismiss the appeal. The appellants are not entitled to
    replacement cost, because their condominium is not a new property of like kind
    and quality. Similarly, they are not entitled to any amount for building code
    upgrades, because their condominium is not of like height, floor area, style or
    occupancy to their insured property. The appellants are entitled to the actual
    cash value of their insured property, which they have received.

[59]

Intact is entitled to the costs of this appeal in the agreed on amount
    of $15,000 inclusive of disbursements and applicable taxes.

Released: December 6, 2016 (J.L.)

John Laskin J.A.

I agree. S.E. Pepall J.A.

I agree. David Brown J.A.





[1]
R.R.O. 1990, Reg. 194.



[2]
R.S.O. 1990, c. I.8.


