



COURT OF APPEAL FOR ONTARIO

CITATION: Tataryn v. Axa Insurance Canada,
    2021 ONCA 413

DATE: 20210614

DOCKET: C68084

Roberts, Miller and Thorburn
    JJ.A.

BETWEEN

Susan Tataryn and Susan G.
    Tataryn Professional Corporation

Plaintiffs (Respondents)

and

Axa Insurance Canada
    (now known as Intact Insurance Company of

Canada)
,
Charles McLeod
,
Irvin Hoffman and Cohen & Lord
    Insurance

Brokers Limited

Defendants (
Appellant
/
Respondents
)

Ashlee L. Barber, for the appellant

Brian C. Elkin, for the respondents,
    Susan Tataryn and Susan G. Tataryn Professional Corporation

Pasquale Santini, for the respondents,
    Irvin Hoffman and Cohen & Lord Insurance Brokers Limited

Kyle Dow, for the respondent, Charles
    McLeod, making no submissions

Heard: May 27, 2021 by video
    conference

On appeal
    from the order of Justice Pierre E. Roger of the Superior Court of Justice,
    dated January 20, 2020, with reasons reported at 2020 ONSC 375.

Reasons for
    Decision



[1]

The appellant insurer
    appeals
from the summary judgment granted in
    favour of Susan Tataryn and her professional corporation (the Tataryn
    respondents) and Irvin Hoffman and Cohen & Lord Insurance Brokers Limited
    (the respondent brokers).

[2]

Ms. Tataryns property was
    insured under a Homeowners Comprehensive policy with the appellant (the
    Policy). Ms. Tataryn purchased an additional Business Interruption
    Endorsement, as her property was also the place of business for her law
    practice.

[3]

Ms. Tataryn commenced
    renovations to the second and third floor of her property while she lived on
    the first floor. Following the commencement of these renovations, two incidents
    of water damage occurred on the property for which Ms. Tataryn sought
    coverage under the Policy. The appellant made some payments for the first loss,
    the renovations paused, and Ms. Tataryn moved out of the property.

[4]

The appellant denied
    coverage for the loss arising out of the second incident of water damage
    relying on the following highlighted provisions of the exclusion clause in the
    Policy:

We do not insure loss or damages [19.] caused
    by water unless loss or damage resulted from [(b)] the sudden and accidental
    escape of water or steam from within a plumbing, heating, sprinkler or air
    conditioning system or domestic water container, which is located inside your
    dwelling  but
we do not insure loss or damage [viii.] occurring while the
    building is under construction
, vacant, or unoccupied, even if we have
    given permission. [Emphasis added.]

[5]

The policy does not provide
    a definition of what is meant by a building under construction.

[6]

The Tataryn respondents
    commenced an action against the appellant, the respondent brokers and the
    respondent adjuster, Charles McLeod, for damages for the losses arising out of
    the two occurrences of water damage. The Tataryn respondents and the respondent
    brokers each brought motions for a declaration that the under construction
    exclusion clause did not apply. The motion judge granted the motion: he ordered
    that the appellant cannot rely on the under construction exclusion of the
    Policy as a defence at trial and dismissed the defence. The motion judge also
    dismissed the Tataryn respondents action and the appellants crossclaim
    against the respondent brokers insofar as they pertain to the under
    construction exclusion.

[7]

This appeal turns on the motion judges
    interpretation of the terms under construction in the Policy as applied to the
    state of the renovations that Ms. Tataryn was carrying out on her
    property.

[8]

The appellant argues that the motion
    judge erred in his interpretation of these terms because he failed to construe
    them in the entire context of the Policy and the limited risk covered under a
    homeowners policy of insurance as opposed to the risks covered in a builders
    risk or other construction-oriented insurance policy. The appellant urges this
    court to provide guidance on the meaning of under construction. Moreover, the
    appellant submits, the motion judge failed to consider the entirety of the
    evidence and focused too narrowly on the state of renovations following the
    second loss.

[9]

Notwithstanding Ms. Barbers able
    submissions, we see no error that warrants appellate intervention. The motion
    judge properly instructed himself on the applicable rules of contractual
    interpretation, including that he was required to give effect to the clear
    language of the policy, reading it as a whole. He considered the plain meaning
    of the term under construction, which he found to be unambiguous, and applied
    it to the entirety of the evidence of the state of the renovations to Ms.
    Tataryns property. There was extensive evidence before the court, including from
    the parties discoveries, affidavits, and cross-examinations. The motion judge concluded,
    correctly in our view, that the finding as to whether a property is under
    construction is a question of fact and that in this case, the extent of the
    renovations [is] not sufficient to support a finding that the house was under
    construction. As the motion judge noted, the fact that a house is being
    renovated does not necessarily mean that it is under construction:
Wilson v. INA Insurance Co. of Canada
(1993), 80 B.C.L.R. (2d) 361 (C.A.), at para. 16. Indeed,
    whether a property is under construction or merely under renovation is a
    question of degree and a question of fact. The motion judges determination
    that Ms. Tataryns property was not under construction was open to him
    on this record.

[10]

We decline the appellants invitation
    to furnish a definition of under construction that the appellant could have
    included in its standard form contract. We note that the appellant renewed the
    Policy after the first loss without introducing such a definition. Given the
    acknowledged fact-specific inquiry entailed in the determination of under
    construction, it is not possible nor desirable for us to give a definition
    that would apply to all cases:
Dodge
    v. York Fire Insurance Co.
, 1911
    CarswellOnt 41 (C.A.), at para. 12. As the motion judge observed, exclusion
    clauses in insurance policies are construed narrowly and the insurer bears the
    burden of proving the exclusion clause applies to limit coverage:
Progressive Homes Ltd. v. Lombard General
    Insurance Co. of Canada
, 2010 SCC 33,
    [2010] 2 S.C.R. 245, at para. 24. It is not this courts function to rewrite
    the parties agreement, especially those terms that the motion judge found, and
    the parties agree, are unambiguous.

[11]

For these reasons, we
    dismiss the appeal.

[12]

In accordance with the
    parties agreement, the Tataryn respondents and the respondent brokers are each
    entitled to their partial indemnity costs in the amount of $7,500, plus their
    respective disbursements and applicable tax. Since Mr. Dow attended on a
    watching brief for Mr. McLeod, filed no materials and made no submissions, he
    sought no costs, and none are granted.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


J.A. Thorburn J.A.


