Elliott A. Zeitz

The applicant sought judicial review of an Umpire's decision determining the value of a property loss following a water leak.

The applicant argued the Umpire exceeded his jurisdiction and denied her natural justice by refusing her request for an adjournment and proceeding with the appraisal in her absence.

The Divisional Court dismissed the application, finding that the Umpire acted within his authority under a prior court order compelling the appraisal to proceed, and that the applicant's voluntary withdrawal from the process did not constitute a denial of procedural fairness.

The insured suffered water damage to her home and claimed extensive mould contamination, which the insurer denied.

The insurer invoked the appraisal process under s. 128 of the Insurance Act.

After significant delays and a court order compelling the appraisal to proceed, the insured changed appraisers on the eve of the hearing and requested an adjournment.

The Umpire refused the adjournment and proceeded in the insured's absence, determining the loss based solely on the insurer's evidence.

The insured applied for judicial review, arguing a denial of natural justice.

The Divisional Court dismissed the application, finding that given the history of delay and the strict court order compelling the appraisal, the Umpire did not exceed his jurisdiction or deny natural justice in refusing the adjournment.

Following a successful appeal by the defendant insurer regarding the production of documents and claims of privilege, the parties submitted written submissions on costs.

The Divisional Court ordered no costs for the appeal, the application for leave to appeal, or the motion to quash.

Although the defendant was substantially successful on the issues of solicitor-client and litigation privilege, the court found that the defendant was largely the author of its own misfortune because its initial affidavit of documents lacked the particularity required by the Rules of Civil Procedure.

The plaintiff sued his insurer for bad faith after it denied his claim for a dismemberment benefit.

On a motion for production, the motions judge ordered the insurer to produce legal opinions from its counsel and its entire claims file, finding that the bad faith claim overrode solicitor-client privilege and that litigation privilege was not established.

The Divisional Court allowed the insurer's appeal, holding that a bad faith claim does not destroy solicitor-client privilege for legal opinions.

The court also set aside the blanket order for the claims file, directing the insurer to deliver a further and better affidavit of documents properly particularizing its privilege claims.