Shinkaruk Enterprises Ltd. et al. v. Commonwealth Insurance Co. et al., (1994) 120 Sask.R. 148 (CA)

• Judge: Vancise, Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 08, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 120 Sask.R. 148 (CA)

Shinkaruk Ent. v. Commonwealth (1994), 120 Sask.R. 148 (CA);

    68 W.A.C. 148

MLB headnote and full text

Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. (appellants/plaintiffs) v. Commonwealth Insurance Company, Northumberland General Insurance Company, Gerling Global General Insurance Company, Scottish & York Insurance Company Limited, The Canadian Indemnity Company, Paragon Insurance Company of Canada, Assitalia-Le Assicurazioni d'Italia S.P.A. and the Non-Marine Underwriters, Members Lloyd's, London, England (respondents/defendants)

(Appeal File No. 1126)

Indexed As: Shinkaruk Enterprises Ltd. et al. v. Commonwealth Insurance Co. et al.

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Jackson, JJ.A.

April 8, 1994.

Summary:

The Saskatchewan Court of Appeal, in a judgment reported 85 Sask.R. 54, directed a retrial of the insurance claim of the plaintiffs for fire damage to its commercial building and interest, if applicable.

The Saskatchewan Court of Queen's Bench, in a judgment reported 99 Sask.R. 84, determined that the plaintiffs were not entitled to recover benefits under the repair/replacement provisions of the insur­ance policy, but were limited to the actual cash value of the damaged portion of the building, plus interest. The plaintiffs appealed.

The Saskatchewan Court of Appeal dis­missed the appeal, with the exception of varying the interest awarded.

Insurance - Topic 5853

Fire insurance - The loss - Measure of - Replacement cost - An insured building was partially destroyed by fire - The owner sought a cash settlement, represent­ing the current cost of replacing the entire building to meet current building codes, but with no obligation to actually rebuild - The trial judge held that the owner was restricted to recovery based on the actual cash value provisions of the policy, because the owner had not repaired or replaced the building as required by the policy - The owner further failed to prove that the insurers waived the policy provi­sions or that they were estopped from relying on them - The trial judge also rejected the claim that municipal building regulations precluded the repair or recon­struction of the building on the site - The trial judge determined the actual cash value of the damaged portion of the build­ing - The Saskatchewan Court of Appeal held that the trial judge did not err in his decision.

Cases Noticed:

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 2 W.W.R. 609; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 9].

Piedmontese Breeding Co-operative Ltd. v. Madill (1985), 40 Sask.R. 144 (C.A.), refd to. [para. 17].

Statutes Noticed:

Planning and Development Act, S.S. 1983-84, c. P-13.1, sect. 117 [para. 10].

Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, generally [para. 19].

Saskatoon (City) Bylaws, Bylaw No. 5198, sect. 17 [para. 10].

Counsel:

Peter Shinkaruk, in person;

W.B. Purdy, for the respondent.

This appeal was heard November 16, 1993, before Vancise, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

On April 8, 1994, Jackson, J.A., delivered the following judgment for the Court of Appeal.