Court File and Parties

COURT FILE NO.: CV-17-568804

DATE: 2019-11-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GEORGE ARVANITOPOULOS, DESPINA ARVANITOPOULOS, ELENI ARVANITOPOULOS, MICKAEL ARVANITOPOULOS, Plaintiffs

AND:

THE WAWANESA MUTUAL INSURANCE COMPANY, Defendant

BEFORE: Schabas J.

COUNSEL: Alfred Kwinter and Susan Dhaliwal, Counsel for the Plaintiffs

Daniel Himelfarb, Counsel for the Defendant

HEARD: November 28, 2019

ENDORSEMENT

[1] There are two motions before me in this action arising from a fire which occurred on February 16, 2015 at the plaintiffs’ home at 459 Delaware Avenue in Toronto. The defendant seeks an order appointing an appraiser on behalf of the plaintiff pursuant to s. 128 of the Insurance Act, R.S.O. 1990, c. I.8. The plaintiffs, in a responding motion, seek an order declaring that the appraisal proceed without regard to the limits of the insurance policy issued to the plaintiffs by the defendant, and an order declaring that the appraisal “shall determine damages that are attributable to work performed by the defendant’s vendors and/or contractors.”

[2] The parties essentially agree on all the relief sought. They agree that there should be an appraisal pursuant to s. 128, with appraisers for both sides, and that the appraisal should proceed without regard to the limits of the policy, and that it should include any damages that are attributable to work performed by the defendant’s contractors or vendors.

[3] Unfortunately, the parties have been unable to move ahead with the appraisal process due to a disagreement over the position of the defendant with respect to whether it has agreed to compensate the plaintiffs for all losses, regardless of limits in the policy. In a letter dated July 11, 2018, Wawanesa stated that it “was committed to payment of [the plaintiffs’] claims for any loss that resulted directly from the fire, or to any damages that are attributable to any work performed by any Wawanesa recommended vendor, regardless of the policy limits and are deemed through the appraisal process.” [emphasis added] This is important to the plaintiffs as their claims are well beyond the policy limits.

[4] However, in correspondence earlier this year, counsel for Wawanesa has been unwilling to confirm that the defendant will waive limits under the policy, This has complicated the ability to agree on an appraisal process, as counsel for the plaintiffs has pressed for agreement that the appraisal should proceed not only without regard for the policy limits, but that the damages determined from the process shall be paid by the insurer.

[5] Since the parties have not been able to agree on the terms and conditions of the appraisal, the plaintiff’s designated appraiser has not agreed to participate.

[6] My jurisdiction is quite limited on this motion. I have been asked to appoint an appraiser under s. 128(5) of the Insurance Act, and may do so where a party fails to appoint an appraiser, or an appraiser refuses to act, among other things. As Justice J. Wright stated in Seed v. ING Halifax Insurance, 2005 41991 (ON SCDC):

I have concluded that the process of appraisal is a free standing one which is mandated by the Insurance Act. It must be proceeded with if either party requests it. It is quite distinct from the court action.

[7] I am not in a position, nor have the parties asked me, to find or declare that Wawanesa shall compensate the plaintiffs beyond the limits of the policy. That is for another day. Indeed, this was confirmed at the hearing of this motion when the parties indicated their agreement to have the appraisal process proceed without prejudice to any rights, claims or defences that the parties may raise under the terms of the policy.

[8] The appraisal process is required in this action and should proceed. The parties have agreed on its scope and it seems that there is little left for me to do but to order that the appraisal proceed without regard to the limits in the policy, and without prejudice to any rights, claims or defences that the parties may raise under the terms of the policy, all of which is agreed to by the parties.

[9] Plaintiffs’ counsel objects to an order appointing an appraiser for the plaintiff, saying that it is not necessary, as he has an appraiser ready and has not refused to appoint one. However, the appraiser chosen by the plaintiff has on two occasions refused to act due to the lack of agreement. Accordingly, s. 128(5)(c) applies and I can make the appointment. As the plaintiffs’ chosen appraiser, Mr. George Milnes, is willing to act, I appoint him to conduct the appraisal for the plaintiffs in accordance with the terms set out in the preceding paragraph.

[10] If the parties cannot agree on costs, they may each make a submission no longer than two pages (not including bills of costs) within fourteen days of the release of this Endorsement.

Schabas J.

Date: November 29, 2019