Alfred Morris Kwinter

The applicants sought judicial review of an umpire's appraisal award under s. 128 of the Insurance Act following a house fire.

They alleged procedural fairness violations, bias, and unreasonableness, citing the aggressive conduct of the insurer's appraiser and the umpire's independent site visit.

The Divisional Court dismissed the application, finding that despite the insurer's appraiser's poor behavior, the applicants had a full opportunity to present their case.

The court held the umpire's process was fair, unbiased, and the resulting valuation was reasonable and intelligible.

The moving parties sought leave to appeal an interlocutory order requiring the production of a witness statement.

The Divisional Court granted the motion for leave to appeal, with costs of the motion reserved to the panel hearing the appeal and fixed at $3,000.

The applicant insurer and respondent insureds were engaged in a statutory appraisal process under the Insurance Act to determine the value of flood damage to the insureds' home.

The insurer brought an application to inspect the property and to remove the insureds' appraiser for allegedly refusing to act.

The insureds brought a cross-application seeking to compel the insurer's appraiser to identify specific disagreements and for a declaration regarding the determination of actual cash value.

The court held that the insurer retained its contractual right to inspect the property and ordered an inspection as directed by the umpire.

The court declined to remove the insureds' appraiser, finding his conduct unprofessional but not amounting to a refusal to act.

The insureds' requests were dismissed, as the umpire has exclusive jurisdiction to determine the appraisal procedure and had not exceeded his jurisdiction.

This decision addresses dueling motions in a protracted fire insurance dispute.

The defendant insurer, Wawanesa, sought a Rule 32 inspection of the damaged property, while the plaintiff insureds, the Arvanitopoulos family, sought directions for the appraisal process under the Insurance Act and a mandatory interlocutory injunction to compel continued Additional Living Expense (ALE) payments.

The court dismissed Wawanesa's motion as an improper reprise of a previously decided motion.

It also dismissed the Arvanitopoulos family's requests for appraisal directions, affirming the umpire's authority, and denied their mandatory injunction for ALE, citing the absence of an undertaking, a strong prima facie case, and irreparable harm.

However, as a term of dismissal, Wawanesa was ordered to continue ALE payments for May, June, and July 2022.

The appellants appealed a jury verdict dismissing their claim against their home insurer following a fire that destroyed their house and its contents.

The insurer denied coverage on the basis that the appellants failed to report a material change in risk (using space heaters instead of a wood stove) and made wilfully false statements in their Proof of Loss.

The Court of Appeal found errors in the trial judge's instructions regarding the material change in risk, but upheld the dismissal of the action because the jury's finding of 39 wilfully false statements vitiated the claim.

The court also upheld the refusal to grant relief from forfeiture due to the appellants' unreasonable conduct.

However, the court allowed the costs appeal, reducing the trial costs awarded to the insurer from $616,843.27 on a substantial indemnity basis to $430,000 on a partial indemnity basis, finding the appellants' conduct in pursuing bad faith claims was not reprehensible enough to warrant an elevated scale.

Following a jury trial in a fire loss action where the defendant insurer successfully defended the claim based on a material change in risk and wilfully false statements, the insurer sought costs.

The plaintiffs argued the insurer should be denied costs due to bad faith and delay tactics.

The court rejected the plaintiffs' arguments, finding they contributed significantly to the delay and failed to substantiate their aggressive bad faith allegations.

The court awarded the insurer partial indemnity costs up to the date of its settlement offer and substantial indemnity costs thereafter, totaling $616,843.27.

Following a jury trial regarding a denied home insurance claim for a fire, the jury found that the plaintiffs used portable electric heaters as their primary heat source and made wilfully false statements on their proof of loss.

The plaintiffs brought a motion arguing the verdict was perverse and seeking relief from forfeiture.

The court dismissed the plaintiffs' motion, finding there was evidentiary support for the jury's conclusions and that relief from forfeiture is not available where a claimant makes wilfully false statements, as this goes beyond imperfect compliance.

Judgment was entered for the defendant insurer.

The defendant Allstate Insurance Company of Canada brought a motion for summary judgment to dismiss the plaintiff's claim for property damage following a house fire.

The fire was intentionally set by the plaintiff's husband, a co-insured, who was convicted of attempted murder against the plaintiff.

Allstate relied on an exclusionary clause in the homeowners' policy for loss or damage resulting from any intentional or criminal act by an insured person.

The court, bound by Supreme Court of Canada precedent, found the exclusionary clause unambiguous and applicable, despite acknowledging its harsh and inequitable result for the innocent plaintiff.

The court also dismissed the plaintiff's argument regarding mental capacity, finding the expert report unreliable and the act clearly intentional.

Summary judgment was granted in favour of Allstate, dismissing the plaintiff's claim.

The court, however, exercised its discretion to dispense with costs, criticizing Allstate's corporate conduct in enforcing such an inequitable clause against a victim of domestic violence.

The plaintiff appealed a Master's decision ordering him to post security for costs in the amounts of $60,000 for CanJet Airlines and $80,000 for 1791949 Ontario Limited (TGAS).

The appeal challenged the Master's findings on impecuniosity, the sufficiency of an adverse cost protection policy, and the plaintiff's chance of success.

The court upheld the Master's decision, finding no palpable and overriding error or misapprehension of evidence, and dismissed the appeal.

The appellant appealed an order declaring him a vexatious litigant under s. 140 of the Courts of Justice Act.

He argued the application judge erred by denying his request for an adjournment due to illness and by failing to consider his self-represented status, language barriers, and alleged brain injury.

The Court of Appeal dismissed the appeal, finding the application judge reasonably exercised his discretion to deny the adjournment given the appellant's history of unpaid costs and lack of proper medical evidence.

The Court also found no error in the application judge's decision to declare the appellant a vexatious litigant based on his repeated, meritless litigation against his former lawyers.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal, awarding costs of $7,000 to the respondent.

The appellant appealed a jury's damages award in a personal injury action arising from a motor vehicle accident.

She argued that the trial judge failed to properly instruct the jury on the meaning of 'material' contribution regarding causation.

The Court of Appeal dismissed the appeal, finding that the jury charge was not deficient when read as a whole.

The court noted that the jury was entitled to accept the defence theory, supported by the appellant's own medical expert, that her condition could have been caused by factors other than the accident.

The successful appellant insurer sought partial indemnity costs of $171,943.31 for an appeal.

The Court of Appeal reduced the fees claimed by two-thirds, noting that the preparation time spent by junior lawyers and law clerks was excessive given the lack of complexity of the issues.

The court also reduced the costs because the insurer's trial counsel had failed to raise the issues on which the insurer ultimately succeeded on the liability appeal.

Costs were fixed at $50,000 for fees and $10,000 for disbursements, plus GST.

The insurer appealed a jury verdict awarding the insureds compensatory and punitive damages following a fire that destroyed a commercial building.

The insurer had denied the claims based on arson, misrepresentation, and fraud.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge misdirected the jury on the law of misrepresentation and the interpretation of a 'shut down' exclusion clause.

The Court also set aside the jury's $1.2 million award for loss of profits as unsupported by evidence, and found the $2.5 million punitive damages award to be grossly excessive.

The appellant appealed the dismissal of her negligence claim against the respondent dairy after she tripped and fell in its parking lot.

The trial judge found the parking lot was in a state of disrepair and the respondent's inspection system was inadequate, but dismissed the action because the appellant could not identify the precise location of her fall.

The Court of Appeal allowed the appeal, holding that the trial judge erred in her causation analysis by setting too high an onus.

Given the uncontradicted evidence of the parking lot's extensive disrepair and the absence of any alternative cause, the court found the respondent's negligence caused or materially contributed to the appellant's injuries.

The appellants appealed an order dismissing their action based solely on their failure to satisfy a prior costs order.

The Court of Appeal allowed the appeal, finding that because the prior costs order did not specify a time for payment, the motion judge erred by not giving the appellants a reasonable opportunity to pay the outstanding costs.

The action was reinstated on the condition that the costs award be paid within thirty days.

The appellant's house was destroyed by a fire intentionally set by her husband, who was convicted of arson.

The respondent insurer denied the appellant's claim under her homeowner's policy based on an exclusion clause for loss resulting from the intentional or criminal acts of any person insured by the policy.

The appellant argued the clause was ambiguous and should not apply to an innocent co-insured.

The Court of Appeal dismissed the appeal, finding the exclusion clause clear and unambiguous in excluding losses suffered by any insured person resulting from the intentional or criminal acts of an insured person.

The plaintiff appealed a Master's order dismissing her motion to add a third party as a defendant in a snowmobile accident claim.

The Master had dismissed the motion due to case management delays and found the proposed claim untenable in law.

The Divisional Court allowed the appeal, finding the Master erred in law by relying on an outdated timetable and by concluding the proposed pleading failed to disclose a reasonable cause of action.

The plaintiff was granted leave to add the third party as a defendant.

The insured died accidentally when a cocaine-filled condom burst in his stomach.

The appellant insurer refused to pay the life insurance proceeds to the respondent, the insured's former spouse and designated innocent beneficiary, arguing that public policy prevents a person from insuring against their own criminal act.

The Supreme Court of Canada held that the public policy rule preventing a criminal from profiting from their crime does not apply to an innocent beneficiary claiming in their own right, rather than through the criminal's estate.

The appeal was dismissed, and the respondent was entitled to the insurance proceeds.

The appellant insured suffered a theft of equipment and subsequently made a claim for loss of income.

The respondent insurer denied the claim on the basis that it was barred by a one-year limitation period set out in the policy's conditions.

The appellant argued that the limitation period, which mirrored the statutory conditions for fire insurance under the Insurance Act, did not apply to theft or loss of profits, and that the late delivery of the policy prejudiced its ability to claim.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurer was free to incorporate the one-year limitation period into the contract for all perils, and that the contractual language was clear and unambiguous.

The court also found no prejudice from the late delivery of the policy, as the appellant's adjuster had misinterpreted the policy rather than being unaware of it.