Alex Sharpe

The Court of Appeal for Ontario allowed an appeal, reversing a Divisional Court decision that had quashed an umpire's assessment of actual cash value (ACV) for a fire-damaged business premises under section 128 of the Insurance Act.

The Court found that the Divisional Court erred by giving undue weight to market value and by failing to defer to the umpire's reasonable assessment.

It clarified that "actual value" means the value to the insured, which can exceed market value, and that repair estimates are relevant to ACV.

The umpire's pragmatic approach in choosing between parties' proposed ACV amounts was upheld as non-arbitrary, reinforcing the deferential standard of review for such appraisals.

The moving party sought leave to appeal a lower court order dated August 1, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

The applicant insurer sought judicial review of an umpire's assessment of the Actual Cash Value (ACV) of the respondent's commercial property following a fire.

The umpire had assessed the ACV at $1,084,000, which was significantly higher than the agreed market value of $265,000.

The Divisional Court granted the application and quashed the assessment, finding it unreasonable.

The majority held that the assessment violated the principle of indemnity by providing a potential windfall to the insured, as there was no quantifiable evidence to support a special value to the insured in excess of the market value.

The defendants brought a preliminary motion to strike portions of an affidavit filed by the plaintiffs in support of an upcoming summary judgment motion regarding an insurance coverage dispute.

The defendants argued the subjective extrinsic evidence was irrelevant and would needlessly complicate the summary judgment hearing.

The court dismissed the motion, holding that under the expanded powers of Rule 20, issues of admissibility and relevancy are best left to the judge hearing the summary judgment motion to avoid bifurcating the process and wasting judicial resources.

In this class action appeal, the court considered whether the deemed undertaking rule under Rule 31.1.01(3) of the Rules of Civil Procedure applies to the names and number of class members who opted out of two companion class actions concerning municipal licensing fees for charitable and religious fundraising events.

The appellants had engaged in a public campaign during the opt-out period to encourage class members to opt out, which the class actions judge found created undue influence.

A protection order was imposed preventing disclosure of opt-out information during a reconsideration period.

After the reconsideration period, the appellants sought to lift the protection order.

The Divisional Court held that the deemed undertaking rule applied to the opt-out information.

The Court of Appeal reversed, holding that the opt-out information is statutorily created information not subject to the deemed undertaking rule, and that class members should be treated as akin to parties whose identities are entitled to be known by the actual parties and the public.

The plaintiffs in two certified class actions regarding allegedly illegal bingo licence fees brought a motion to restrict the defendants' multi-media opt-out campaign.

The defendants, the City of Windsor and the Town of Tecumseh, launched an extensive campaign including newspaper ads, websites, and direct mailings, urging potential class members to opt out to save taxpayers from a potential $70 million uninsured damages award.

The court found that while defendants have a right to communicate with class members, the campaign went too far by pitting taxpayers and organizations against each other, creating undue influence.

The court ordered the defendants to add hyperlinks to the class action websites on their materials and directed that class members who had already opted out be given an opportunity to reconsider, but declined to impose broader communication restrictions.