2024 ONSC 3718
DIVISIONAL COURT FILE NO.: 073/23
DATE: 20240628
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Matheson, and Myers JJ.
BETWEEN:
GEORGE ARVANITOPOULOS, DESPINA ARVANITOPOULOS, ELENI ARVANITOPOULOS, MICKAEL ARVANITOPOULOS
Applicants
– and –
THE WAWANESA MUTUAL INSURANCE COMPANY
Respondent
Alfred M. Kwinter and Laya Witty, for the Applicants
Daniel M. Himelfarb, for the Respondent
HEARD at Toronto: June 10, 2024
FL Myers J:
REASONS FOR DECISION
This Proceeding
[1] There is a much bigger story than what is before this court in this proceeding. In February, 2015, the applicants’ house was burned in a fire. Today, nine years later, the house sits empty and unrestored. The applicants allege that contractors retained by the insurer to repair their house caused substantial further damage to the structure and to their personal property. At least for a time, the insurer waived its policy limits. It has paid more than $700,000 for alternate accommodations for the applicants which is almost ten times the policy limit for that coverage.
[2] There is broad civil litigation among the parties about what happened during the restoration process that has left the applicants out of their home for so long.
[3] In the fall of 2022, the parties participated in an appraisal proceeding under s. 128 of the Insurance Act, R.S.O. 1980, c. I.8. The purpose of an appraisal is to help the parties fix the value of the insured claims. In the appraisal, the parties sought to agree upon or fix the values of the damage to the house and contents, and to determine the alternative living expenses reasonably incurred by the applicants due to the insured fire event.
[4] In Intact Insurance Co. v. Laporte (c.o.b. Warrior Gear), 2024 ONCA 454, the Court of Appeal recently described an appraisal process in this way:
[4] A s. 128 settlement process is meant to be an easy, expeditious, collaborative, and cost-effective way of settling disputes about appraisals: Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, 467 D.L.R. (4th) 480, at para. 36. It begins with each party appointing an appraiser of their own. If the appraisers cannot resolve the matter between them, an umpire whom they have appointed will determine the matter.
[5] On January 4, 2023, the umpire and the insurer’s appraiser joined in an award in which they valued the applicants’ losses as follows:
BUILDING LOSS:
Replacement Cost $290,000.00
Actual Cash Value $240,000,00
The above amounts are inclusive of fire damage and additional damages relating to subsequent issues Involving Asbestos remediation, water damage and mould. It is understood that the above Building amounts are subject to advance indemnity payments made by the insurer to the insured.
(this award has not considered any payments made by the Insurer to Contractors or vendors working on behalf of the insurer. Payments to contractors were not in dispute)
PERSONAL PROPERTY LOSS:
Replacement Cost $372,900.00
Actual Cash Value $335,610.00
The above Personal property amounts are subject to any advance indemnity payments made by the insurer to the insured.
(This award gave no consideration to items, that their existence is in dispute (jewelry $10,941.42), this would be a dispute for another venue.)
(this award includes an Allowance of $30,000.00 for return of contents to the insured)
(this award has not considered any payments by the Insurer to Contractors or vendors working on behalf of the insurer, as this was not disputed by the parties)
ADDITIONAL LIVING EXPENSE:
Valuation $400.000.00
This valuation is subject to indemnity payments made by the insurer to and on behalf of the insured from the date of loss through January 2019.
An allowance for moving contents back into the home has been included in the Personal Property loss listed above.
[Emphasis in original.]
Preliminary Note
[6] The applicants submit that this multi-day appraisal, that took multiple years in its establishment, was anything but the easy, expeditious, collaborative process it was supposed to be. Rather, they say they and their witnesses were bullied by an overly aggressive appraiser for the insurer. They submit that they were subjected to a most unfair resolution in which the umpire decided the key values based on his own site visit and ignoring the evidence and submissions of both parties.
[7] I have nothing good to say about the behaviour of the insurer’s appraiser John Valeriote. He did not deny the evidence that he threatened the livelihood of the applicants’ expert witness. He weakly contests the evidence that he acted as an unrestrained bully throughout the hearing.
[8] On the facts of this case, for the reasons that follow, I do not find that that Mr. Valeriote’s misconduct deprived the applicants of procedural fairness. Despite that conclusion, umpires should understand their right and, indeed, their obligation to ensure that all appraisal participants behave with respect and decorum befitting a legal proceeding - especially one that is supposed to embody a collaborative process.
Applicants’ Grounds for Judicial Review
[9] The applicants submit that the appraisal hearing and outcome denied them procedural fairness to which they were entitled.
[10] They also submit that as a result of the umpire’s failure to discipline Mr. Valeriote for threats and misbehaviour, as well as unequal treatment of the parties during the hearing, there is a reasonable apprehension that the umpire was biased against them.
[11] Finally, the applicants submit that the umpire’s decision was not reasonable and should be set aside on judicial review for the grounds described in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[12] As a remedy, the applicants ask that rather than holding a new appraisal, the issue of damages should just be added to the outstanding litigation between the parties so as to be resolved by the court.
Jurisdiction and Standard of Review
[13] The court reviews decisions of statutory decision makers pursuant to ss. 2 and 6 (1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[14] In an application for judicial review, the court will consider whether the proceeding under review was conducted in accordance with the principles of procedural fairness with reference to the factors discussed by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, paras. 23-28.
[15] In addition, on an application for judicial review, the court exercises a supervisory role. Rather than looking to correct substantive errors on an appeal, the court’s role on judicial review is to ensure that the decision maker performed his or her statutory assignment properly – both reasonably and fairly.
[16] The Supreme Court of Canada described the purpose of judicial review in Vavilov, at paras. 12-13, as follows:
[12] …Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s[^1] promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions...
[13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.
[17] In Thales DIS Canada Inc. v. Ontario (Ministry of Transportation), 2023 ONCA 866, 170 O.R. (3d) 241, at paras. 91-94, under the heading “Standard of review to be applied by the Divisional Court to the Decision”, the Court of Appeal gave directions to this court as to how to conduct a reasonableness review under the Vavilov framework. Favreau J.A. wrote:
[91] In Vavilov, at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”.
[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz,[^2] at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106.
[18] The court starts with the decision maker’s reasons to see if the court can make sense of the logic of the decision. Then the court can look to see if the decision maker ran afoul of factual or legal constraints on the decision-making process.
[19] Case law provides that umpires are not required to provide reasons for their valuation decisions. The decisions are not necessarily judicial in nature. They involve expertise, judgment, and compromise. However, they remain subject to judicial review. In the absence of reasons, the court will consider the evidentiary record and relevant circumstances to try to understand the decision maker’s reasoning process.
[20] If a lack of reasons prevents a court from being able to follow the sense of the decision maker’s line of reasoning, the decision may well be set aside under the Vavilov standard of review.
Procedural Fairness
[21] The essence of natural justice, and its progeny doctrine of procedural fairness, is that each party to a proceeding has the right to know the case they have to meet and to adduce the evidence and argument necessary to do so. The formality of the process for hearing from the parties required for procedural fairness can vary such as simple discussion or an exchange of letters, all the way to a formal trial subject to the rules of evidence with all of its strictures and procedural glory.
[22] In this case, despite the conduct of Mr. Valeriote, as the representative of the insurer, the evidence of the applicants and their expert witness is that they knew the issues and had the opportunity to present truthfully the evidence they wished to present.
[23] The applicants were represented on the appraisal by Mr. Milne. He is a very experienced appraiser. The applicants complain that the umpire did not allow the applicant Eleni Arvanitopoulos and the applicants’ expert witness Rosemarie Salvatore to adduce the evidence they wished to adduce or to question the insurer’s side. But Mr. Milne was not precluded from asking any question or adducing any evidence Ms. Arvanitopoulos wanted him to ask. He was not precluded from taking whatever steps he felt appropriate to adduce evidence from Ms. Salvatore or from others based on her advice to him.
[24] The applicants say that Mr. Valeriote yelled at Ms. Arvanitopoulos to try to limit her participation. If this is so, it would have been appropriate for the umpire to ensure decorum and respectful conduct. Ms. Arvanitopoulos complains that the umpire did not allow her to give evidence concerning the quantification of losses and her views of errors in the insurer’s brief. But that was the role of the experts who testified for the applicants. An umpire avoiding witness duplication and refusing to hear opinion evidence from lay witnesses is not problematic.
[25] Based on the applicants’ evidence, I cannot find any basis to say that they were denied the opportunity to make their case as they saw fit through their appraiser Mr. Milne.
[26] The applicants’ concerns seem to have more to do with understanding the roles of various participants rather than any actual limits on the content of evidence that could be adduced. It was open to the umpire to require that the proceeding be carried by the appraiser for each side. The applicants’ appraiser could take instructions from the applicants and manage witness presentation for them.
[27] But then the applicants submit that the umpire gave more leeway to the insurer’s corporate representative, Mr Baker, to assist the insurer’s appraiser Mr. Valeriote than was allowed to Ms. Arvanitopoulos. There is some discussion in the record of Mr. Baker being treated as an assistant of sorts to Mr. Valeriote. This may have been a simple recognition that Mr. Baker had substantial experience in these types of proceedings. But even if Mr. Baker was actually allowed to participate somewhat more than Ms. Arvanitopoulos, it did not affect the ability or entitlement of the appraisers for each side, Messrs. Milne and Valeriote, to present their parties’ respective evidence and submissions as they saw fit.
[28] The applicants submit that the umpire allowed the insurer to delay for two years before filing its appraisal brief. But during those two years, the insurer had to go to court twice to obtain access to the applicants’ house. The applicants chose to try to limit the insurer and its experts from attending the house to prepare for the valuation. The insurer says the applicants tried to avoid the appraisal. The applicants initially refused to even appoint their appraiser. Then they tried to limit the insurer’s appraiser and experts from viewing the house. In this proceeding, they are again trying to avoid the appraisal and to move the issue of damage to their civil litigation.
[29] I see no issue of fairness in the delay of the delivery of the insurer’s brief while the applicants took their strategic steps. Those who play by the procedural sword cannot complain when the thrusts and parries of their strategic fencing cause delays that could have been readily avoided by cooperation.
[30] The applicants then say that despite the site inspections held by the insurer over the two years, the insurer did not challenge their costing evidence with costing evidence of its own. That goes to the substantive outcome to be sure. But it does not make the delay caused by the insurer’s requests to exercise its right to inspect the house an issue of procedural fairness.
[31] Ms. Salvatore is a highly experienced property appraiser/valuator. She and her firm were retained initially by the insurer to evaluate the applicants’ alleged losses. They did so.
[32] The applicants incorporated Ms. Salvatore’s costing into their appraisal brief and advised the insurer that they intended to call Ms. Salvatore as their witness.
[33] While much of the evidence surrounding Mr. Valeriote’s conduct toward Ms. Salvatore is hearsay, it appears that he and the insurer took offense to Ms. Salvatore testifying for the insured at the appraisal.
[34] It seems that prior to the appraisal hearing, Mr. Valeriote called Ms. Salvatore’s sister and business partner to assert that they were violating their duties to the insurer and to threaten their future livelihoods. The applicants’ evidence is also that Mr. Valeriote and Mr. Baker mocked Ms. Salvatore while she gave evidence so that she did not feel safe on her Zoom feed.
[35] Subject to the law of privilege, there is nothing wrong with a party calling as a witness an expert consulted by the other side. Mr. Himelfarb quite rightly chose not to mention this issue during the hearing before the court.
[36] Ms. Salvatore wrote a formal complaint to the umpire in which she clearly laid out all of her concerns. She gave the explanations that she wanted to give. I do not have the benefit of any findings that could have been made on the issues by the umpire. But I am satisfied that Ms. Salvatore gave her testimony truthfully and had the opportunity to make her concerns heard plainly and cogently.
[37] Similarly, the umpire declined to allow Ms. Salvatore to volunteer explanatory evidence that she had hoped to give concerning back-up charts and calculations in the record. The umpire said he had read the charts. There were no limits on Mr. Milne’s entitlement to ask Ms. Salvatore questions or to use the charts and calculations as part of the applicants’ case. That is, the umpire controlled the scope of oral testimony volunteered by an expert witness. He did not impair the applicants’ entitlement to know or make their case.
[38] At one point, the umpire is said to have admonished a witness for the applicants to keep his evidence within relevancy limits. The applicants submit that the umpire never admonished any of the insurer’s witnesses likewise. But they do not assert that any of the insurer’s witnesses sought to give evidence of the sort that their witness was precluded from giving. So, apparently, in the umpire’s view, none of the insurer’s witnesses needed such admonishment.
[39] It is not the court’s task to determine whether the hearing was conducted perfectly like a trial in court (assuming a perfect trial exists) or as a perfect appraisal hearing. The issue is whether the applicants were unfairly limited or precluded from participating in the appraisal process.
[40] The most applicable factors from Baker suggest a moderate degree of procedural formality was required. The appraisal process in this case was important to the parties. The values are substantial and the circumstances of the efforts to restore the house are unusual. The parties reasonably expected a degree of procedural formality with an oral hearing process required by the umpire.
[41] The applicants had the opportunity to produce full and complete written documentation. There were six days of oral hearing. Although appraisals are hoped to be at the less formal end of litigation proceedings, it is well understood that litigation is not for the faint of heart. The stakes are high. A lot of money can be involved. The applicants seem to feel harshly treated by the insurer. The conduct of the appraiser whom the insurer chose to represent it exacerbated the applicants’ concerns. But, at the end of the day, I am satisfied that the applicants had a full and fair opportunity to know the case they had to meet and to participate in it fully.
The Umpire Did Not Display Bias
[42] Procedural fairness also requires that a decision maker be impartial and that he or she make the decision free from a reasonable apprehension of bias.
[43] In this case, there is no independent source of the bias allegations. That is, to make their case of bias, the applicants rely on the same issues as were discussed above about the umpire’s tolerance of Mr. Valeriote’s conduct and the umpire’s alleged unequal treatment of the parties and their witnesses. The applicants submit that the umpire’s behaviour produced a reasonable apprehension that he was biased against the applicants.
[44] I do not agree.
[45] As I have already found, the umpire’s control of the oral hearing was within the scope of his discretion. Limiting the participation of parties and witnesses and requiring the parties’ cases be run by their appointed representatives – the two appraisers – is not a sign of bias. Neither is admonishing a witness to keep his testimony within the bounds of relevancy.
[46] The umpire apparently did not believe that it was in his jurisdiction to discipline Mr. Valeriote. The umpire has no inherent jurisdiction. Neither does he have jurisdiction to consider issues of contempt of court whether in the face of the court or before the hearing. But he certainly has the ability and duty to control the process before him. An umpire can and should insist on proper and respectful decorum. But even assuming that he could have and should have reigned in Mr. Valeriote’s conduct, I fail to see how, on the full record, the umpire can be said to have approached the matter with a closed or biased mind or for a reasonable, informed observer to conclude so.
The Umpire’s Site Visit and Personal Property Valuation
[47] The applicants put forward the only costing evidence for their personal property. The insurer adduced no evidence to compete against the detailed costing evidence adduced by Ms. Salvatore. The insurer did not object to the costs ascribed to individual items. It was prepared to agree to the costing evidence. But the insurer disagreed with the assumption made by Ms. Salvatore as to how much of the personality was damaged beyond repair or cleaning. That is, the insurer did not necessarily contest that a particular item, if thrown away due to fire damage, had a value of $X as opined by Ms. Salvatore. Rather, it submitted that significant proportion of the applicants’ items could have been cleaned.
[48] The applicants’ costing evidence was that the building loss was estimated by their contractor at $611,000 (which equated to over $950,000 by the time of the hearing). Ms. Salvatore valued the applicants’ personal property loss at $837,854.42. By April 29, 2020, the insurer has paid almost $750,000 for additional living expenses for the applicants.
[49] The applicant submits that after the oral hearing the umpire made a fundamental error by going to the storage facility to view the applicants’ personal property himself. Thereafter the umpire rejected Ms. Salvatore’s value of the personal property of $837,854.42 and valued the damage to the applicants’ goods at $372,900 on a replacement cost basis and $335,610 actual cash value.
[50] The umpire’s award describes this aspect of the process as follows:
As part of Deliberations it was determined that none of the panel members had inspected the Personal Property.
Arrangements were made for inspection of Personal Property at Rathlin's.
The umpire inspected the Personal Property, neither appraiser took the opportunity to inspect.
After the Inspection of the Personal Property, appraisers were again asked if they wished to attend and inspect with the umpire for an in-person assessment.
Appraisers chose not to inspect and asked that the umpire proceed in giving an opinion.
Consideration in deliberations extended to a review of submissions, information presented, reports, photographs and the site inspection.
Appraisers agree with the values listed on the Rathlin's report, but do not agree that all the personal property is damaged or damaged beyond repair.
The insured is agreeable that 118 boxes of contents are acceptable and to be returned to them. An Inventory of the acceptable Items has not been made available to the panel.
On the schedule provided by Rathlin's, appraisers agree with the values categorized as fire and asbestos damage. (fire - $22,803.56, asbestos -$16,330.76) Appraisers agree that these should be included in the valuation of the personal property loss.
The items not accepted by the insured and items where the existence of which is in dispute are the basis for the dispute as to value of this personal property loss.
The award amount listed below includes consideration for damages that may have been caused in moving or handling of contents.
After discussing a proposed valuation with the panel, the umpire noted that HST had been missed, and should be added to the valuation. An email was sent to the panel advising of the oversight. HST is included in the valuation listed below.
Actual Cash Value has been included in the award.
[Emphasis in original.]
[51] The umpire identified the parties’ agreement on the valuation of the goods in total and their disagreement as to how much of the goods were salvageable.
[52] In his affidavit for this proceeding, Mr. Milne testifies that he reported on his discussion with the umpire after the inspection as follows:
- In my email dated November 17, 2022, I wrote to the insured that the Umpire had inspected the contents. The Umpire informed both appraisers that he had viewed a small sample of items, completed a visual inspection of 4 hours, and concluded that not all of the personal property appeared to be damaged beyond repair. He stated he was accompanied by another representative from Claimspro as well as Bernadette Martinuzzi. Attached here and marked as Exhibit "W" is a copy of the email dated, November 17, 2022.
[53] Unfortunately, Exhibit “W” was not actually appended to the affidavit filed with the court.
[54] I disagree with the applicants’ submission that the umpire impermissibly turned himself in to a fact witness. He identified the issue between the parties and notified them of his desire to attend the warehouse to view the goods for the purpose of advancing the resolution of the issue. Neither side chose to attend. The umpire then reported his impression about the state of the goods. The parties then had the opportunity to make submissions.
[55] While the award does not provide any detail at all as to how the umpire came to his final conclusion, it is self evident that he reduced the agreed value of the goods by a factor of more than 50% to reflect his finding on the salvageable state of the goods or as a compromise of the parties’ positions. The insurer’s appraiser agreed and signed the appraisal.
[56] Appraisers appointed by parties are generally not lawyers. They bring valuation expertise to the insurance claim. If the appraisers cannot agree, they appoint an umpire who is empowered to bring the appraisers to a resolution that he and at least one of them accept. The umpire is expected to have expertise and to bring it to bear. Here, the umpire did nothing unilaterally. He told the appraisers of his concern and invited them to attend with him. He then told them of his finding and invited submissions. He explained the process in his award. This was as it should be.
The Building Loss Value
[57] There was competing evidence brought by the appraisers to the umpire. The applicant provided a detailed current costing. The insurer relied on reports obtained shortly after the fire, remediation estimates, amounts actually paid, and an engineering report written in 2022 as a result of site visits ordered by the court. The insurer submitted it had fully indemnified the applicants by paying $312,038.04 toward the building claim.
[58] It is apparent from the award that the umpire accepted the insurer’s position.
[59] The values determined are questions of fact. The applicants seem to be arguing that because only they submitted an up-to-date costing, the umpire was bound to accept their position. That is not the law however. The umpire was entitled to accept as fact the more limited scope of work and other materials submitted by the insurer.
[60] Judicial review is generally not available on facts unless the decision maker fundamentally misapprehends the evidence or fails to take into account relevant evidence before it. The court is not to reweigh the evidence: see Vavilov, at paras. 125-126. I see no basis to reweigh the evidence in this case.
Additional Living Expenses
[61] In the award, the umpire was very clear as to the panel’s approach. He recited the parties’ agreement that the reasonable time to repair the house was 30 weeks. The panel then considered scenarios for a reasonable starting date for the repairs. With those two periods set, the panel was able to determine a reasonable total time for planning and repair for which additional living expenses ought to have been needed. They then arrived at a valuation by looking at the actual expenses paid by the insurer for that aggregate period.
[62] The applicants may well claim in their litigation that they were required to be housed elsewhere for a much longer period due to the negligence of the insurer or its contractors. The umpire acknowledged:
30, Any dispute between the parities [sic] beyond what would be considered a reasonable time to repair the dwelling, has not been considered by the panel. This would be beyond the scope of appraisal and better deal with in another venue. [Emphasis in the original.]
[63] The applicants’ submission that this issue was not part of the appraisal is simply not correct. The applicants dedicated a volume of their five-binder appraisal brief to the issue. The insurer likewise dealt with it expressly in its appraisal submissions.
Application of Vavilov Standard of Review
[64] For the reasons discussed above, I find that each of the values determined by the majority of the appraisal panel was justifiable, transparent, and intelligible. I can trace the panel’s logic without finding any fatal flaw. Moreover, the appraisal did what it was supposed to do under s. 128 of the Insurance Act. It resolved disagreements between the parties about the cash and replacement values of the applicants’ insured losses as claimed. And it did so in a process that was detailed, intensive, and procedurally fair.
[65] In all, I find no basis to interfere with the decision in this case. The application is therefore dismissed
Improper Affidavits with Opinion Evidence
[66] The insurer has delivered affidavits of two lawyers and a public appraiser all very experienced in the s. 128 appraisal process. None of these witnesses was involved in the appraisal in this case. They offer no first-hand evidence about the proceeding from their own knowledge or observations. Rather they all provide opinions about the purpose and process of appraisal proceedings generally. They also offer opinions on the conduct of this appraisal based on what they have been told about it.
[67] None of these three affidavits is admissible. I have not relied on anything said in them. They are not delivered as expert witness evidence supported by appropriate certification of independence by the witnesses. I do not need to assess the need for expert evidence in this case in the absence of any effort by the respondent to put the witnesses forward as expert witnesses: see: R. v. Mohan, [1994] 2 S.C.R. 9.
Costs
[68] In their factum, the applicants seek costs on a substantial indemnity scale on the basis that if they succeeded the court may make findings that the insurer engaged in reprehensible misconduct. They quantified their all-inclusive costs claims at approximately $102,000 on a partial indemnity basis and $114,000 on a substantial indemnity basis.
[69] For its part, the insurer seeks its costs on a partial indemnity basis if it succeeds. It quantifies its all-inclusive costs at approximately $28,400 on a partial indemnity basis and $31,000 on a substantial indemnity basis.
[70] In this court, parties are expected to agree on costs prior to the hearing. In this case, given the parties’ continued antipathy they would not agree. I expected counsel to lead their clients to agreement. Their experience should have left them in no real doubt about the costs outcome one way or the other.
[71] Under the normative approach in Ontario, costs follow the event on a partial indemnity basis unless here is good reason to do otherwise. Costs must be fair and reasonable based on the time expended and the hourly rates claimed. They must also fall within the range of risk to which the paying party ought reasonably to have expected to be exposed.
[72] I have reviewed the parties’ respective costs claims. The insurer’s counsel spent a reasonable amount of time on the proceeding and delegated work to lower cost colleagues appropriately. The hourly rates claimed are modest. With applicants incurring almost three times the costs of the insurer, I have no concern that the applicants might be surprised or dissuaded from seeking access to justice by the costs award sought.
[73] The applicants shall therefore pay the insurer its costs of this application fixed in the amount of $28,400 all-inclusive.
Myers J.
I agree _______________________________
Lococo J.
I agree _______________________________
Matheson J.
Released: June 28, 2024
2024 ONSC 3718
DIVISIONAL COURT FILE NO.: 073/23
DATE: 20240628
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Matheson, and Myers JJ.
BETWEEN:
GEORGE ARVANITOPOULOS, DESPINA ARVANITOPOULOS, ELENI ARVANITOPOULOS, MICKAEL ARVANITOPOULOS
Applicants
– and –
THE WAWANESA MUTUAL INSURANCE COMPANY
Respondent
REASONS FOR DECISION
Myers J.
Released: June 28, 2024
[^1]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[^2]: Turkiewicz (c.o.b. Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421.