COURT FILE NOS.: CV-19-80411; CV-20-82568; CV-19-82139
DATE: 2020/10/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Court File No.: CV-19-80411
Ruth Campbell et al., Plaintiffs
AND
Desjardins General Insurance Group et al., Defendants
Court File No.: CV-20-82568
Desjardins General Insurance Group et al., Applicants
AND
Derek and Alissa van Gaal, Respondents
Court File No.: CV-19-82139
Desjardins General Insurance Group et al., Applicants
AND
Ruth and Leonard Campbell et al., Respondents
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Joseph Y. Obagi and Sarah E. Russell, Counsel for the Plaintiffs (Court File No.: CV-19-80411) and the Respondents (Court File Nos.: CV-19-82139 and CV-20-82568)
Kevin P. Nearing, Counsel for the Defendants (Court File No.: CV-19-80411)
Pat C. Peloso, Counsel for the Applicants (Court File No.: CV-20-82568)
Pasquale Santini, Counsel for the Applicants (Court File No.: CV-19-82139)
HEARD: September 8 and 9, 2020 by video conferencing
DECISION AND REASONS
M. Smith J
[1] The matters before this Court pertain to three separate insurance claims arising from the tornado that hit the City of Ottawa on September 21, 2018.
[2] Ruth Campbell and Leonard Campbell (“Campbell Family”), Grace Blazejewski and Thomas Blazejewski (“Blazejewski Family”) and Alissa van Gaal and Derek van Gaal (“van Gaal Family”) (collectively referred to as the “Insureds”) each own homes that were damaged by the tornado. They are insured by Desjardins General Insurance Group (“Desjardins” or the “Insurer”). The parties are unable to agree on the value of the Insureds’ respective damages.
[3] The Insurance Act, R.S.O. 1990 c. I.8 (the “Act”) provides that in the event of a disagreement regarding the value of the loss, any of the parties can trigger an appraisal mechanism to determine the amount of the loss.
[4] In the Campbell Family matter, the appraisal has been triggered and Mr. William Neville was appointed as the umpire (the “Umpire”). Desjardins has requested an appraisal in the Blazejewski Family and van Gaal Family matters, but no proofs of loss have yet been delivered. The Insurer has issued two Applications in respect to the three insurance claims, seeking the Court’s assistance regarding the appraisal that has been triggered and those that have been requested.
[5] The Insureds have issued a Statement of Claim against Desjardins, an adjuster and the Insurer’s preferred vendors alleging breach of its duty of good faith, fraud and conspiracy (the “Claim”). At the outset of the Motion, the Court was advised that, on consent, the action against the Defendant First General Services URA (“First General”) was dismissed.
[6] The Insurer brings a Motion seeking to stay these proceedings pending the completion of the appraisals in the three claims.
[7] These matters have come to a halt for several reasons, ranging from an Umpire’s ruling on a conflict of interest, the selection of the appraiser, the timing for the filing of a proof of loss, the evidence to be relied upon at an appraisal (estimates versus actual costs), and the interplay between the appraisal and the Claim (which legal proceeding/process needs to occur first).
[8] The relief sought in the Motions and Applications before the Court are set out in the paragraphs that follow.
Insurer’s Motion (Claim No.: CV-19-80411)
[9] Desjardins seeks the following:
a. An Order requiring the Claim and the Applications to be referred to Civil Case Management;
b. An Order staying the Claim until after the appraisals being sought by Desjardins in the Applications have been resolved; and
c. An Order staying the Examinations for Discovery in the Claim until the appraisals have been completed.
Insureds’ Cross-Motion (Claim No.: CV-19-80411)
[10] The Plaintiffs (Insureds) seek the following:
a. An Order compelling all of the Defendants to attend at Examinations for Discovery, to be held by video conference, at the next available date; and
b. Costs thrown away from the failed Examinations for Discovery scheduled for the week of May 4, 2020.
Desjardins’ Application (CV-19-82139 and CV-20-82568)
[11] Desjardins seeks the following against the Campbell Family and the Blazejewski Family (CV-19-82139) as well as the van Gaal Family (CV-20-82568):
a. A declaration that the appraisal process pursuant to section 128 of the Act proceed before William Neville as Umpire;
b. A declaration that John Valeriote of Crawford Inc. be appointed as the appraiser for the applicants;
c. A declaration that Joseph Obagi be removed as the appraiser for the Insureds and that the Insureds appoint an appraiser who is not a member of the firm Connolly Obagi LLP within seven (7) days of the date of such Order;
d. A declaration that the Insureds deliver their proofs of loss within a reasonable time as determined by this Honourable Court; and
e. A declaration that the appraisal process begin within thirty (30) or sixty (60) days of the date of the delivery of the proofs of loss.
[12] The parties rely upon their affidavits as well as the evidence that was adduced at the comprehensive cross-examinations that took place over the course of four days.
THE ISSUES
[13] The issues raised in the Motions and the Applications can be categorized as follows:
a. Issue #1 – The Appraisal Process
i. The choice of appraiser; and
ii. Statutory Condition 6
b. Issue #2 – Stay of Proceedings / Case Management
BACKGROUND
[14] A tornado hit the Ottawa area on September 21, 2018 causing major damage and destroying homes.
[15] The Campbell Family’s home was a total loss. Mr. Leonard Campbell passed away before the loss, on August 2, 2018.
[16] The Blazejewski Family’s home was a total loss.
[17] The van Gaal Family’s home sustained damages to the second floor, requiring the roof to be demolished and rebuilt.
[18] Desjardins is the insurer for all three losses. The adjusters appointed to investigate and deal with the losses were first Mr. Stephen Keane, followed by Mr. Michael Martin.
[19] It is undisputed that the losses are covered under the policies of insurance, subject to some minor coverage issues that may need to be adjudicated in the future.
[20] Desjardins engaged the services of JPL Construction Services (“JPL”) and First General to provide estimates for the rebuild of the Insureds’ homes. Desjardins also estimated the rebuild by using internal resources. A summary of these estimates is set out below:
a. Campbell Family: $427,976.94 from Desjardins on December 7, 2018; and $468,315.54 from JPL on January 17, 2019.
b. Blazejewski Family: $473,858.47 from Desjardins on November 20, 2018; and $533,434.40 from JPL on May 3, 2019 which was subsequently increased to $561,794.11 in late May 2019 and then to $598,768.51 towards the early part of June 2019.
c. van Gaal Family: $319,000.00 from First General on December 12, 2018; $334,079.66 from Desjardins on February 20, 2019; and $382,606.07 from JPL on March 29, 2019.
[21] For all three insurance claims, JPL or First General were not selected by the Insureds to rebuild their homes.
[22] In or around May 2019, the Insureds agreed to retain Mr. Obagi to commence the Claim. It was issued on June 6, 2019.
[23] Desjardins has already advanced significant funds to the Insureds for dwelling, content and additional living expense coverages. It is my understanding that the Insureds’ claims for contents and additional living expenses have been resolved. The most significant issue remaining is the valuation of the costs to rebuild the Insureds’ homes.
The Campbell Family
[24] The Campbell Family home was deemed a total loss.
[25] On February 13, 2019, the Campbell Family advised Desjardins that they would be entering into a contract with Omega Builders to rebuild their home. On March 1, 2019, the Campbell Family entered into an agreement with Omega Builders for the rebuild of their home in the amount of $623,760.00, excluding the basement and landscaping.
[26] On April 3, 2019, the Campbell Family advised Desjardins, through their lawyer, Mr. Joseph Obagi, that they were demanding an appraisal under the Act. Desjardins advised that Mr. Keane would be its appraiser while Mr. Obagi was appointed on behalf of the Campbell Family.
[27] On May 7, 2019, the Campbell Family submitted an interim proof of loss in the amount of $750,000.00. This amount was qualified as follows: “estimated damage and indemnity based on quotes received (excluding costs related to negligent protection of the foundation to be pursued separately as damages for negligence)”.
[28] In or around early May 2019, the appraisers in the Campbell Family matter agreed to appoint the Umpire. An agreement entitled “Acceptance of Appointment as Umpire” was circulated and accepted by the parties.
[29] On May 23, 2019, the appraisers and the Umpire participated in their first case conference. In an email of the same day, the Umpire expressed some concerns regarding the Insureds’ intention of issuing the Claim. He wrote, in part, the following: “Based on the previous experience that I shared with you both, I am certain you will appreciate that I would be less inclined to proceed with the appraisal if there was going to be a lawsuit with “bad faith” elements imbued within it about to be launched as between the insured and insurer”.
[30] On June 7, 2019, Mr. Obagi provided a copy of the issued Claim to the Umpire and Mr. Keane. The Umpire responded in part, as follows: “All to say, I would be very disinclined to continue with the appraisal process unless and until the Superior Court of Justice directed the parties, by court order, to continue the current appraisal process”.
[31] On June 14, 2019, the Umpire wrote to Mr. Obagi and Mr. Keane proposing to take no further steps to advance the appraisal until such time as the Superior Court of Justice provides directions on whether: “(a) Mr. Obagi can reasonably function as an appraiser on behalf of Ruth Campbell while continuing to act as her counsel in the lawsuit (my view is that he cannot); and if not, who his replacement should be; (b) Mr. Keane can reasonably function as an appraiser on behalf of his nominating insurer while remaining a party in the lawsuit (my view is that he cannot); and if not, who his replacement should be”.
[32] On June 26, 2019, despite the appraisal having already been triggered, Desjardins sent a form letter to the Campbell Family invoking the appraisal process to settle their differences.
[33] On July 8, 2019, the Umpire advised the appraisers that he was not prepared to proceed with the appraisal if the Campbell Family maintained their wish to have Mr. Obagi (or a member of his firm) act as an appraiser and similarly, where Desjardins sought to have an employee serve as an appraiser. He stated: “Surely the Tribunal must be seen to function as an independent panel under the Insurance Act where there is no actual or perceived conflict of interest”.
[34] Desjardins responded to the Umpire’s concerns. It removed Mr. Keane as the appraiser and appointed Mr. Martin. This change did not alleviate the Umpire’s concerns because Desjardins was a party in the Claim. Desjardins therefore appointed Mr. John Valeriote of Crawford & Company. The Campbell Family did not wish to change Mr. Obagi as their appraiser.
[35] No further steps were taken in respect to the Campbell Family appraisal.
[36] On December 3, 2019, Desjardins issued its Application seeking directions from the Court.
[37] The Campbell Family resumed occupancy of their home in May 2020. The basement and landscaping rebuild have yet to be completed, estimated to cost $72,320.00 and $120,000.00, respectively. Despite having triggered the appraisal, the Campbell Family have now advised Desjardins that for the purposes of the appraisal, they wish to rely upon the actual costs incurred and as such, they will deliver a final proof of loss once the rebuild has been completed.
The Blazejewski Family
[38] The Blazejewski Family home was deemed a total loss.
[39] On May 24, 2019, the Blazejewski Family entered into an agreement with Patterson Homes to rebuild their home for the sum of $682,609.27.
[40] On May 27, 2019, the Blazejewski Family met and retained Mr. Joseph Obagi in respect to pursuing the Claim.
[41] On June 26, 2019, by way of letter, Desjardins requested that the parties proceed to an appraisal for the Blazejewski Family’s loss.
[42] On December 3, 2019, Desjardins issued its Application seeking directions from the Court.
[43] The Blazejewski Family resumed occupancy of their home in April 2020. Prior to the tornado, the landscaping was extensive and included multiple walkways, tiered steps to the house (front and back), a stone lounge area, a stone dining area, hot tub area, and numerous gardens. The landscaping is not yet finished.
[44] Desjardins has been advised that the Blazejewski Family will deliver a sworn proof of loss once the full costs of the rebuild has been determined.
The van Gaal Family
[45] The damage to the van Gaal Family home included the second floor and the roof.
[46] Mr. van Gaal is an electric engineer. He is familiar with the construction industry and its construction practices.
[47] On May 27, 2019, the van Gaal Family met and retained Mr. Joseph Obagi in respect to pursuing the Claim.
[48] On June 24, 2019, by way of letter, Desjardins requested an appraisal to resolve the Blazejewski Family’s loss.
[49] On or about October 29, 2019, the van Gaal Family resumed occupancy of their home.
[50] On January 20, 2020, Desjardins issued its Application seeking directions from the Court.
[51] Mr. van Gaal acted as his own general contractor in the rebuild.
[52] The landscaping has not yet been completed. The van Gaal Family were unhappy with extras being charged by their landscaper and therefore changed landscaping companies.
[53] Similar to the other insureds, the van Gaal Family have advised the Insurer that they wish to finalize the repairs before submitting a proof of loss.
THE POSITION OF THE PARTIES
[54] I have reviewed and considered the parties’ evidence, which is extensive. The parties’ positions have been thoroughly outlined in their factums as well as skillfully articulated by all counsel during submissions. I do not intend on reciting each and every point raised in the materials or during the hearing. Rather, I propose to provide a general overview, which I believe captures the essence of their arguments.
The Insurer
[55] The appraisal process is meant to be a cost effective and expeditious method to resolve a dispute regarding the value of the loss. The administrative tribunal that is tasked with this valuation is comprised of two appraisers and an umpire, all of whom must be impartial. Although the Ontario legislature has not specifically stated in the statute that an appraiser should be impartial and/or disinterested, it is implied that they should be.
[56] In the Campbell Family matter, the Umpire expressed his view that Mr. Obagi was in a conflict of interest because he acted in two capacities, namely as an appraiser in the appraisal process and as counsel in the Claim. The Umpire had the authority to suspend the appraisal pending the directions from the Court on the issue of the conflict of interest.
[57] Desjardins agrees with the Umpire’s decision. It argues that the appraiser should be a disinterested and impartial person. Mr. Obagi is too closely connected and lacks the independence that is required to act as an appraiser.
[58] In the Blazejewski Family and van Gaal Family matters, the Court has the inherent jurisdiction to appoint an appraiser and umpire, despite the appraisal not having been triggered.
[59] It is common practice in the appraisal process to establish the loss on the basis of estimates. It is akin to a personal injury claim where the Court is often asked to assess the plaintiff’s future loss of income or future care expenses based on opinions and estimates.
[60] The Insureds are required to file a proof of loss as soon as practicable. It is situationally determined and practicable when the parties have gathered the necessary information to have intelligent estimates to describe the loss.
[61] The Insureds have substantially completed all of the repairs to their respective homes and they have a lot of information on the value of the loss. They should be in a position to proceed with the appraisal and be required to file proofs of loss.
[62] The Insureds cannot frustrate the appraisal process when it has been appropriately invoked. The delivery of the proofs of loss is entirely within the Insured’s control.
[63] On the van Gaal Family matter, the Insurer argues that the insured is in breach of Statutory Condition 6, while on the Campbell Family and Blazejewski Family matters, the Insurer says that a finding of a breach of Statutory Condition 6 is not required. Rather, in these latter cases, the Insurer is seeking the Courts’ assistance in the determination of rights pursuant to Rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[64] Case Management is appropriate in these circumstances because there are multiple parties, one Claim, two Applications, and one to three appraisals proceeding all together. The parties are unable to reach a consensus and the matters are not proceeding in an ordinary fashion.
[65] It would be most efficient, and it makes sense procedurally to first finalize the appraisals before proceeding to an Examination for Discovery.
The Insureds
[66] The Insureds argue that they have done everything they can to rebuild their homes as quickly as possible and that at each step, in line with their duty of good faith, they have kept the Insurer apprised of any and all developments. The pandemic has created some delays in finalizing the rebuild.
[67] The Insureds have never asked to stay the appraisal process. They wish to complete the rebuilds, before proceeding to an appraisal, in order to determine the full and accurate value of the costs incurred. Since the loss, the Insurer’s estimates have wildly fluctuated. The Insureds do not wish to rely on inaccurate estimates but rather, they want clear and accurate invoices evidencing their true respective losses.
[68] The Insureds deny that they have breached their Statutory Condition 6 obligations.
[69] The Insurer has admitted that there is no alleged or actual prejudice in support of the relief being sought.
[70] The Campbell Family acknowledges that the appraisal process has been triggered but they submit that the Proof of Loss delivered to Desjardins was only interim and that a final one has yet to be provided. The appraisal process was started to bridge the gap between the JPL estimates and their own. However, in consultation with the Blazejewski Family and van Gaal Family, they realized that all of the estimates provided by JPL were “way off”, raising questions about its accuracy.
[71] The Umpire stopped the appraisal process in the Campbell Family matter. It is argued that he has over stepped his authority, stepping into the judicial and quasi judicial role of an arbitrator. It is argued that the Umpire’s authority is tightly controlled and limited to procedural issues. The removal of an appraiser is not procedural but substantive.
[72] A stay of proceedings is an extraordinary relief and the test has not been met.
THE LEGISLATION
[73] The relevant provisions of the Act are sections 128, 148, Statutory Conditions 6 and 11, reproduced below:
Contracts providing for appraisals
128 (1) This section applies to a contract containing a condition, statutory or otherwise, providing for an appraisal to determine specified matters in the event of a disagreement between the insured and the insurer. R.S.O. 1990, c. I.8, s. 128 (1).
Appraisers, appointment
(2) The insured and the insurer shall each appoint an appraiser, and the two appraisers so appointed shall appoint an umpire. R.S.O. 1990, c. I.8, s. 128 (2).
Appraisers, duties
(3) The appraisers shall determine the matters in disagreement and, if they fail to agree, they shall submit their differences to the umpire, and the finding in writing of any two determines the matters. R.S.O. 1990, c. I.8, s. 128 (3).
Costs
(4) Each party to the appraisal shall pay the appraiser appointed by the party and shall bear equally the expense of the appraisal and the umpire. R.S.O. 1990, c. I.8, s. 128 (4).
Appointment by judge
(5) Where,
(a) a party fails to appoint an appraiser within seven clear days after being served with written notice to do so;
(b) the appraisers fail to agree upon an umpire within fifteen days after their appointment; or
(c) an appraiser or umpire refuses to act or is incapable of acting or dies,
a judge of the Superior Court of Justice may appoint an appraiser or umpire, as the case may be, upon the application of the insured or of the insurer. R.S.O. 1990, c. I.8, s. 128 (5); 2006, c. 19, Sched. C, s. 1 (1).
Statutory conditions
148 (1) The conditions set forth in this section shall be deemed to be part of every contract in force in Ontario and shall be printed in English or French in every policy with the heading “Statutory Conditions” or “Conditions légales”, as may be appropriate, and no variation or omission of or addition to any statutory condition is binding on the insured.
Statutory Condition 6 - Requirements After Loss
- (1) Upon the occurrence of any loss of or damage to the insured property, the insured shall, if the loss or damage is covered by the contract, in addition to observing the requirements of conditions 9, 10 and 11,
(a) forthwith give notice thereof in writing to the insurer;
(b) deliver as soon as practicable to the insurer a proof of loss verified by a statutory declaration,
(i) giving a complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value and particulars of amount of loss claimed,
(ii) stating when and how the loss occurred, and if caused by fire or explosion due to ignition, how the fire or explosion originated, so far as the insured knows or believes,
(iii) stating that the loss did not occur through any wilful act or neglect or the procurement, means or connivance of the insured,
(iv) showing the amount of other insurances and the names of other insurers,
(v) showing the interest of the insured and of all others in the property with particulars of all liens, encumbrances and other charges upon the property,
(vi) showing any changes in title, use, occupation, location, possession or exposures of the property since the issue of the contract,
(vii) showing the place where the property insured was at the time of loss;
(c) if required, give a complete inventory of undamaged property and showing in detail quantities, cost, actual cash value;
(d) if required and if practicable, produce books of account, warehouse receipts and stock lists, and furnish invoices and other vouchers verified by statutory declaration, and furnish a copy of the written portion of any other contract.
(2) The evidence furnished under clauses (1) (c) and (d) of this condition shall not be considered proofs of loss within the meaning of conditions 12 and 13.
Statutory Condition 11 - Appraisal
- In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under the Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.
THE ANALYSIS
ISSUE #1 – THE APPRAISAL PROCESS
[74] The appraisal process under section 128 of the Act has been in existence for quite some time and it has been the subject of many disputes before the Courts in the Province of Ontario. The legal principles that have emerged include the following:
a. The determination of the disputed value of the loss is mandated in an appraisal mechanism under section 148, Statutory Condition 11 of the Act (Greer v. Co-operators General Insurance Co., [1999] O.J. No. 3118);
b. The appraisal process is triggered when the following conditions are met: (1) a specific demand for appraisal is made in writing; and (2) the insured has delivered a proof of loss (56 King Inc. v. Aviva Canada Inc., 2016 ONSC 7139);
c. Statutory Condition 6 provides that the insured must deliver a proof of loss as soon as practicable. The Court’s assessment of whether the insured has complied with this requirement of delivery “as soon as practicable” is a question of fact, to be decided under the circumstances of each case (Regal Films Corporation (1941) Limited v. Glen Falls Insurance Company, 1946 CanLII 60 (ONCA));
d. Statutory Condition 6 requires that the insured give a complete inventory of the destroyed and damaged property and provides the details associated with the amount of loss claimed (Lauzon v. AXA Insurance (Canada), 2013 ONCA 664);
e. Statutory Condition 11 is unambiguous and cannot be unilaterally waived by either party in the event of a disagreement (Seed v. ING Halifax Insurance, 2002 CanLII 79669 (ON SC), [2002] O.J. No. 1976 (S.C.J.));
f. The appraisal process is an efficient and cost saving measure available to the parties to effectively resolve their dispute (Greer v. Co-operators General Insurance Co.);
g. There are no stipulated timelines in the Act upon which an election for appraisal must be made (56 King Inc. v. Aviva Canada Inc., 2016 ONSC 7139);
h. The appraisal process is not an arbitration but rather a property valuation process. It is designed to provide the parties with a valuation of the loss and not a determination of legal rights (Madhani v. Wawanesa Mutual Insurance Company, 2018 ONSC 4282);
i. The appraisers and the umpire are not to determine legal questions. They are valuators who are to use their expertise in assessing the loss (Madhani v. Wawanesa Mutual Insurance Company);
j. The Act does not set out the training, knowledge or experience that is needed for an appraiser to carry out his/her functions as set out in section 128 of the Act (Letts v. Aviva Canada Inc., 2010 ONSC 6999);
k. Substantial deference to an appraisal under the Act and the appraisal process is given by the Court, unless there is evidence of misconduct or jurisdiction has been exceeded (Birmingham Business Centre v. Intact Insurance Company, 2018 ONSC 6174 (Div. Ct));
l. An appraisal does not require a hearing, a consideration of evidence or reasons to be given in the determination of the value of the loss (Birmingham Business Centre v. Intact Insurance Company);
m. The decision is final and a binding determination of the loss (Birmingham Business Centre v. Intact Insurance Company);
n. Section 128 of the Act gives the Court the discretion to curb abuse (56 King Inc. v. Aviva Canada Inc., 2017 ONCA 408); and
o. The Court has inherent jurisdiction to make such procedural orders as are necessary to give effect to the statutory appraisal scheme in the Act, including equipping the appraisers and the umpire with the information needed to present a full answer and defence (Lauzon v. AXA Insurance (Canada)).
[75] Despite the body of caselaw that has developed over the years, there are two areas that do not appear to have been considered with any significance by the Courts in the Province of Ontario, namely:
a. A party’s right to choose an appraiser of his/her choice; and
b. The insured’s right to rely upon actual costs incurred as opposed to estimates.
Choice of Appraiser
[76] The choice of appraiser became an issue after the issuance of the Claim. In the Campbell Family matter, the Umpire suspended the appraisal process as he did not find it appropriate that an appraiser, who is a member of the appraisal tribunal also represent the insured in a Court proceeding. Similarly, he found it improper that the Insurer appoint an employee to act as an appraiser. The Umpire stated: “I am not inclined to have the appraisal tribunal (“the Tribunal”) proceed where Mrs. Campbell wishes to have Mr. Obagi or any member of his law firm serve as her appraiser or where the Insurer seeks to have any employee of it serve as its appraiser. Surely the Tribunal must be seen to function as an independent panel under the Insurance Act where there is no actual or perceived conflict of interest”.
[77] The Insurer supported the Umpire’s views and appointed an independent adjuster, John Valeriote of Crawford Inc. instead of its own employee.
[78] The Insurer argues that the appraiser is a decision maker and it is implied that he/she should be independent. It refers to other jurisdictions (Nova Scotia, Prince Edward Island, Newfoundland and Labrador, British Columbia and Florida) where the term “disinterested” has been statutorily used to describe the type of appraiser that can be appointed. It submits that the appraiser must possess a level of impartiality to facilitate a fair process with a view of assisting the umpire.
[79] The Campbell Family disagreed with the Umpire and refused to remove Mr. Obagi as their appraiser. They argue that the appraiser appointed by either party need not be neutral. They go further and submit that the appraisal process is not an administrative tribunal.
[80] I reject the suggestion that no administrative tribunal exists. Once the appraisers and umpire have been appointed, an administrative tribunal has been created for the limited purposes of establishing the value of the loss. It removes the quantification of the loss from the Court.
[81] Section 128(2) of the Act provides that both parties shall appoint an appraiser. No restrictions are imposed upon the parties regarding who can act as an appraiser. I accept that it is common practice that the insurer appoints an employee (property adjuster) to act as its appraiser while it has been seen and accepted that the insured appoints a lawyer, a public adjuster or even himself/herself to act as an appraiser.
[82] The appraisers’ duties are set out in section 128(3) of the Act. They are to “determine the matters in disagreement”. The disagreement is the value of the loss. Each appraiser will set the value of the loss and attempt to convince the other that their value is appropriate in the circumstances. It is only where they are unable to reconcile their differences that the umpire will be called upon to perform his/her own duties.
[83] As noted in the dissent decision of Seed v. ING Halifax Insurance, the Act is silent regarding the umpire’s role and responsibilities. Section 128(3) of the Act simply says that the appraisers shall “submit their differences to the umpire, and the finding in writing of any two determines the matters”.
[84] Each appraisal process is different, dependent upon the complexities of the loss or the manner upon which the umpire chooses to proceed. There is no requirement for a hearing, nor is there a prohibition that one takes place. If oral evidence is presented, contractors and/or insureds can be called to testify, and cross-examinations can occur. Experts can also be asked to attend a hearing and provide his/her opinion. The hearing can last a few hours, one day or span over many days. The valuation can also be entirely based upon written documentation. In sum, the appraisal is an informal valuation process and it is run entirely by the umpire, as he/she sees fit.
[85] I accept that the appraisal process is a valuation and not an arbitration. However, practically speaking, I find that the umpire acts as the sole decision maker when he/she is called upon to resolve a dispute between the appraisers. After hearing and considering all of the evidence (oral and/or documentary), as presented by the appraisers, it is the umpire alone that shall decide between two competing valuations (insurer or insured) and his/her selection will determine the value of the loss in question. It is the umpire’s choice, and nothing else, that creates the majority decision that determines the value of the loss.
[86] In he Campbell Family matter, the Umpire defined his services to include: “the presiding of any informal hearing, if, indeed, oral evidence or information is provided and any deliberation needed to consider all information/evidence and carry out any determinations as required by the Act”. The Umpire is to “deliberate”, which I find is the weighing of the two competing positions as advanced by the appraisers, followed by a “determination” which is synonymous to a decision. In my view, the services described by the Umpire are precisely those that are carried out by a decision maker. And as the decision maker, it goes without saying that the umpire must be (and perceived by the public to be), impartial and independent. On the other hand, the appraisers play a different role in the valuation process and I find that they do not have a requirement, statutorily or otherwise, of being impartial and/or independent.
[87] Interestingly, Desjardins’ evidence regarding its understanding of the functioning of the appraisal aligns with the conclusion that the umpire is the sole decision maker. The following is an excerpt of the cross-examinations of Desjardins’ witnesses (questions 396-397 of the cross-examination of Mr. Michael Martin dated July 23, 2020; and questions 150-151 of the cross-examination of Mr. David Wong dated July 24, 2020):
Mr. Michael Martin
- Q. Are you saying that the umpire has the authority under the Insurance Act under an appraisal, to determine which of those two costs are payable under the policy?
MR. PELOSO: Go ahead and answer that.
THE WITNESS: Yes, sir. And just to reclarify using your same metaphor, we both agree the house needs a new roof. We say that roof is going to cost 50 grand to replace. Your insureds feel it costs 100,000 to replace. We both present our sides of the argument to the umpire, who makes a binding decision, and we get an appraisal award. We are then compelled to pay the sum of that award.
- Q. So I want to talk about this case, because the example that you gave talks about two estimates going forward, and both estimates being weighed. Is it the same scenario in your mind whether or not the cost was incurred by the insured as if it was part of an estimate? Same answer?
A. Same answer, and that would be from the umpire's perspective on evidence. Their own, how they evaluate that situation. And certainly, just also to clarify, sometimes they choose one or the other, sometimes they come up with a number in-between. They come up with the valuation of the loss.
Mr. David Wong
- Q. Mr. Neville would be, to use the term, I think you might have used it, he’s a wholly independent umpire in the middle. So he’s the true independent voice at the table; correct?
A. That’s correct.
- Q. The other two parties are really advocates, if you will, and Mr. Neville is the independent umpire; correct?
A. That’s correct.
[88] Once the umpire has been appointed and the hearing is underway, I find that the appraiser’s role is to present the evidence that supports his/her valuation of the loss. The appraiser does not give evidence. The appraiser will merely plead the case on behalf of the client and present the evidence in a manner that is meant to persuade the umpire that his/her valuation of the loss is reasonable and appropriate in the circumstances. The ultimate goal is to convince the umpire that the appraiser’s assessment of the loss is the correct one. To me, that can only be described as advocacy. I find that the appraisers are invariably advocates, while the umpire is the sole decision maker who must remain neutral.
[89] A review of the legislative history confirms that the legislature may once have intended to restrict the type of appraiser that could be appointed but this has not been the case for over half a century and the common practice has supported this change in the legislation.
[90] Sections 128(2) and (3) of the Act have never stipulated that appraisers must be competent or disinterested. These sections were introduced to the Act through An Act to Amend the Insurance Act, S.O. 1966, c. 71, s. 8 (“Act to Amend”).
[91] A previous version of the Statutory Condition 11 at section 148 of the Act used to stipulate that both appraisers and umpires had to be competent and disinterested. It read as follows:
Appraisal
11.—(1) If any difference arises as to the value of the property insured, the property saved or the amount of the loss, that value and amount shall, whether the right to recover on the contract is disputed or not, be ascertained by two competent and disinterested appraisers, the insured and the insurer each selecting one, and the two so chosen then selecting a competent and disinterested umpire.
(2) The appraisers together shall then estimate and appraise the loss or damage, stating separately the sound values and damage and, failing to agree, shall submit their differences to the umpire, and the finding in writing of any two determines the value of the property insured, the property saved and the amount of loss.
(3) The parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expense of the appraisal and umpire.
[92] This section was amended in 1966 by the Act to Amend. The new changes have remained ever since.
[93] A review of the parliamentary debates does not provide any explanations or reasons for removing the terms “competent and disinterested” from the Statutory Condition 11. The debates that took place prior to the enactment of the Act to Amend focused primarily on the amendments to automobile insurance (Official Report of the Legislature of Ontario debates (Hansard), June 3, 1966 – July 8, 1966, pp. 4429, 4867-4874, 5222, 5438).
[94] If the Ontario legislature truly intended that the appraiser be independent and impartial, an insured would not be able to self-represent nor would the insurer be permitted to appoint an employee. I find that a self-represented appraiser would be the most partial person of all. Such a restriction does not exist in the Province of Ontario.
[95] There must be public confidence in the appraisal process. The umpire must always be independent and impartial. If the umpire finds it appropriate to hold a hearing, it must be conducted in a manner that ensures procedural fairness.
[96] In sum, the choice of the appraiser belongs to the party. It is expected that the chosen appraiser will vigorously advocate the client’s position, with the goal of convincing the other appraiser, or more importantly, the umpire as the sole decision maker of the appraisal process. Selecting an advocate as an appraiser does not eliminate the integrity of the appraisal process. Rather, it ensures that the party’s respective positions are properly advanced before the umpire, in the best interest of the client.
Actual Costs Incurred vs Estimates
[97] It is trite to say that a property loss may affect an insured’s well-being, either financially and/or psychologically. The greater the loss, the greater the impact it will have on the insured.
[98] While it is true that the appraisal process does not determine the rights of the parties, the decision (valuation of the loss) is of significant importance to the parties, especially an insured. An improper valuation can represent a loss of thousands and thousands of dollars.
[99] One of the principles of indemnity is to put back the insured into the same position that he/she was before the loss. In the context of a personal injury claim, as Desjardins properly articulated, it is accurate to say that some of the damages claimed must be estimated, such as a future loss of income or future health care expenses. The Court must embark on some form of crystal balling exercise, with the assistance of experts, to determine the value of the insured’s loss. It is an inexact science but one that is necessary because the injured party’s loss can be ongoing and last until his/her death. Without a mechanism to assess the loss in a personal injury claim, one would never be able to determine the damages.
[100] In my view, property losses are different. In many circumstances, such as in the case at bar, the loss has an end date in the not so distant future, either once you have replaced, repaired or rebuilt what you have lost. With this finality comes knowledge of the actual costs incurred. It removes the guessing or the estimating in determining the damages.
[101] Statutory Condition 6 clearly obliges the insured to deliver a proof of loss “as soon as practicable” but it also requires the insured to provide a “complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value and particulars of amount of loss claimed”.
[102] The term “as soon as practicable” has not been defined in the statute, leaving some flexibility in its interpretation. It is fact based and situationally determined.
[103] The Insurer’s position is that the delivery of the proof of loss is in the unique control of the insured, beyond the control of the insurer. The Insurer says that there is no jurisprudence that recognizes that the insured can wait until the rebuild is complete. It argues that this is not the standard and it is not a reasonable approach to Statutory Condition 6.
[104] The Insurer further says that, historically, the Courts have found that as long as the information provided permits an intelligent estimate of the loss, it meets the particulars needed in a proof of loss and this information, along with the proof of loss should be delivered to the insurer.
[105] The Insureds argue that it is not unreasonable to wait to deliver the sworn proof of loss until such time as all costs are known. It is only upon the completion of the repairs that the Insureds will be in a position to truly know the “complete inventory” of the loss and the amount claimed. The Insureds wish to calculate their loss with precision.
[106] One must be reminded that the main objective with insurance law legislation is consumer protection (Smith v Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129). With this in mind, an appraisal process cannot be undertaken if it is done to the detriment of the consumer. If an insured wishes to rely upon actual costs incurred and the insured has acted diligently and in good faith throughout, with full transparency to the insurer, I am of the view that requiring that an appraisal proceed on the basis of estimates only would be contrary to the objective of consumer protection.
[107] I accept the proposition that the appraisal process has been historically based upon estimates. However, that does not mean that it is appropriate in each case nor that it should be a steadfast rule. Some insureds will be satisfied to proceed to an appraisal on the basis of estimates and if they so desire, they should not be precluded from doing so. For those insureds that believe that it is more prudent to proceed to an appraisal with better evidence (i.e. the actual expenses incurred) should they be prohibited from relying upon this type of evidence? I think not.
[108] I find that there is no statutory prohibition in delivering a sworn proof of loss that is based upon actual expenses incurred. There is no doubt that the insured has a duty to provide a sworn proof of loss. The statute requires that it be delivered “as soon as practicable” and as mentioned earlier, the determination of whether the insured has met this requirement is fact based. If an insured chooses to deliver a proof of loss on the basis of actual expenses incurred, he/she may do so but it cannot be done in a manner that frustrates the appraisal process or promotes abuse.
[109] The insured must act diligently and in good faith. The insured must not engage in unjustified conduct that has the effect of unreasonably delaying the repair and/or rebuild of the property.
[110] The insured has a duty to cooperate. The insured cannot act in a manner that impedes the insurer’s ability to investigate, monitor and assess the progress of the repair and/or rebuild of the property. In other words, the insurer cannot be prejudiced by the insured’s choice of relying upon actual expenses for the purposes of the appraisal process.
[111] Once the repair and/or rebuild of the property has been completed, the insured must deliver his/her sworn proof of loss to the insurer forthwith. That means that the insured must deliver it promptly upon the completion of the repair and/or rebuild and without any further delays.
[112] If an insured chooses to rely upon actual costs incurred, there is no doubt that this will delay the triggering of the appraisal process because it cannot be commenced until the last condition is met, namely the delivery of the proof of loss. In my view, this delay does not offend the principle enunciated by the Court that the appraisal mechanism is an efficient and cost saving measure available to the parties to effectively resolve the dispute. Once the final proof of loss is delivered and the appraisal process is officially triggered, there is no reason that the determination of the value of the loss cannot be dealt with in an efficient, expeditious and cost saving manner.
[113] I find that reliance upon actual expenses incurred enhances the efficiency of the appraisal process. It eliminates most of the guessing and/or estimating in the quantification of the loss and equips the parties with the best possible evidence. With this type of evidence (based more so on reality than prediction), the appraisers may be able to reach an agreement with more ease. If not and a hearing is required, then the evidentiary record before the umpire will be more complete, which will undoubtedly assist the umpire in determining a value of the loss that is just and reasonable.
Application to the cases at bar
[114] Before I address each case individually, I wish to acknowledge that it has now been over two years since the date of loss and that this may be seen as a lengthy period of time. I also recognize that in some previous cases, a delay of fifteen months in delivering a proof of loss has been found to be unreasonable and unacceptable, in breach of the insured’s duty to deliver a sworn proof of loss “as soon as practicable”.
[115] It is important to recall that the Court’s assessment in determining if an insured has delivered a proof of loss “as soon as practicable” is a question of fact.
[116] As noted below, I have found that each of the Insureds have acted diligently in their attempts to rebuild the property as quickly as possible. None of the Insureds are deliberately frustrating the appraisal process. The rebuild is significant on all three claims.
[117] An explanation for the delays, which is not present in previous cases but has significant merit, is of course the pandemic. Not only has it been a factor in delaying these legal proceedings, but it has impacted the construction industry as a whole and has delayed some projects, on the basis of labour shortages and supply chain issues.
[118] The Insurer asks that the Court set a timeline for the delivery of the proofs of loss, as they would like finality. I can appreciate this position but in the current state of flux that we find ourselves in as a result of COVID-19 and considering the facts of this case, I find that it would be inappropriate to impose a strict timeline that must be adhered to. The Insureds are motivated to complete the rebuild as soon as possible. It is in their best interest to move matters along as quickly as possible in order to obtain a final determination on the value of their losses and I am confident that they will take the required steps to complete the rebuild.
[119] I agree however that once the proofs of loss have been delivered by the Insureds at the completion of the rebuild, the appraisal process should begin within a certain reasonable period of time. Given the passage of time since the loss, I find that for all three claims, the appraisal process should begin (or continue in the case of the Campbell Family matter) within thirty (30) days of the delivery of the proofs of loss.
The Campbell Family
Choice of Appraiser
[120] The Campbell Family have appointed Mr. Obagi to act as their appraiser. Desjardins has appointed Mr. Valeriote of Crawford Inc.
[121] For the reasons outlined above, both parties can appoint the appraisers they deem fit. The fact that Mr. Obagi represents the Campbell Family in the Claim or that the insurer’s appraiser is an employee and/or a preferred contractor are not appropriate grounds to remove an appraiser. Mr. Obagi is not in a conflict of interest. He represents the Campbell Family in both the appraisal and the Claim. His duty is owed to the Campbell Family. There is no basis to remove Mr. Obagi.
[122] The Umpire has expressed a view that if the Court finds that Mr. Obagi is to remain as the Campbell Family appraiser, he will “consider it wiser that the two appraisers nominate a different umpire”.
[123] If the Umpire maintains his position, a new umpire will have to be appointed. In the event that the appraisers are unable to agree on the Umpire’s replacement, an Application would have to be commenced, pursuant to section 128(5)(c) of the Act for the appointment of an umpire.
Breach of Statutory Condition 6
[124] It is undisputed that the Campbell Family has delivered a sworn Proof of Loss in the amount of $750,000.00 with the proviso that it was an estimation. It is also undisputed that the appraisal process has been triggered.
[125] The Campbell Family wish to rely upon actual expenses incurred for the following reasons. First, post triggering of the appraisal process, the Campbell Family discovered that the repairs were more substantial (replacement of the foundation). Second, the Campbell Family began to compare notes with other insureds who had similar dealings with Desjardins and the JPL estimates. As a result of those discussions and comparisons, they were no longer comfortable in proceeding to an appraisal with only an estimate. They felt that other insureds had been “slighted in their quotes”, they lacked the “sense of trust” to move forward and they had an “uneasy sense” that something was wrong.
[126] The appraisal process was suspended by the Umpire on July 8, 2019.
[127] The Campbell Family continued with the rebuild. Despite being able to move into the new home in late May 2020, the rebuild is still not complete with the remaining items being the fireplace, the basement and the landscaping.
[128] There have been some delays in completing the rebuild but I do not find that it is attributable to a lack of diligence on the part of the Campbell Family. The pandemic has played a large part in this delay, which has been acknowledged by the Insurer.
[129] The Insurer does not argue that it has been prejudiced by the delay. It also acknowledges that it has had frequent communication with the Campbell Family up until recently, as the items to resolve have dwindled.
[130] In sum, I find the Campbell Family are not in breach of Statutory Condition 6.
Disposition
[131] The Campbell Family shall deliver their proof of loss forthwith upon the completion of the rebuild.
[132] The Insurer has requested that the appraisal process begin within thirty (30) days of the delivery of the proof of loss. Given that the appraisal process has already been commenced, I shall order that the appraisal process be continued within thirty (30) days of the delivery of the final proof of loss.
[133] The balance of the relief sought in the Application is dismissed.
The Blazejewski Family
Choice of Appraiser and Breach of Statutory Condition 6
[134] Pursuant to section 128 of the Act, Desjardins wrote to the Blazejewski Family requesting that their dispute be resolved through the appraisal.
[135] The Blazejewski Family have not yet delivered a sworn proof of loss because they are awaiting the completion of the repairs and do not wish to proceed to an appraisal in reliance on estimates only.
[136] The Blazejewski Family have not appointed an appraiser. They do not feel that they are at a stage of having to appoint an appraiser.
[137] Similar to the Campbell Family, the Blazejewski Family have an uneasy feeling about the estimates being provided by JPL and wish to rely upon actual costs incurred. As an example of their uneasiness, they point out that the original scope of work, as estimated by JPL, did not include the cost of fixing problems with the foundation.
[138] The Blazejewski Family resumed occupancy of their home in April 2020. However, the landscaping remains outstanding. Prior to the tornado, the landscaping was extensive and to date, the only items completed are the grading, the sod and a paved driveway. The landscaping work was to be finished by June 26, 2020 but there have been delays. Again, the pandemic appears to be adding to the delays.
[139] On the evidentiary record before me, I do not find the Blazejewski Family to be in breach of Statutory Condition 6. I find that the Blazejewski Family have been acting diligently in completing the rebuild of their home and accept their evidence that they are not pleased with the delays and would have wished to finalize the rebuild much sooner.
[140] The Insurer does not say that it has been prejudiced by the delay. Further, the Insurer acknowledges that communication with the Blazejewski Family regarding the status of their reconstruction has been frequent.
[141] The Insurer urges me to exercise my inherent jurisdiction in appointing an appraiser for the Blazejewski Family and order that they deliver a proof of loss within a reasonable period of time. I decline to do so.
[142] As set out earlier, the appraisal process can only be triggered once two conditions have been satisfied. Having found that the Blazejewski Family are entitled to delivery their proof of loss at the completion of their rebuild, the second condition has not yet been fulfilled. Consequently, the appointment of an appraiser or an umpire is not required at this time.
Disposition
[143] The Blazejewski Family shall deliver their proof of loss forthwith upon the completion of the rebuild.
[144] The Insurer’s request that the appraisal process begin within thirty (30) days of the delivery of the proof of loss is granted.
[145] The balance of the relief sought by the Insurer in the Application is dismissed.
The van Gaal Family
Choice of Appraiser and Breach of Statutory Condition 6
[146] Similar to the Blazejewski Family matter, Desjardins wrote to the van Gaal Family and requested that their dispute be resolved through the appraisal in accordance with section 128 of the Act.
[147] The van Gaal Family resumed occupancy in October 2019. The remaining items to complete include the landscaping to the front of the yard, retaining wall, driveway, walkway, lawn and plants. The evidence of the van Gaal Family is that they were hopeful to have it completed in mid-September 2020, but it may only be finalized in April 2021. There have been delays associated with the pandemic as well as a change of landscaping contractors.
[148] Although I accept that there is some evidence to suggest that the van Gaal Family previously wished to resolve the matter, it is now clear that they want to wait upon the completion of the landscaping. I am satisfied that they have acted with due diligence.
[149] The van Gaal Family have not yet appointed an appraiser. They have also indicated that they may self-represent themselves in the appraisal process.
[150] The Insurer does not allege that it has been prejudiced by the delay in receiving the proof of loss. Further, it acknowledges that its communication with the van Gaal Family (and the other insureds) have been pleasant and forthcoming.
[151] The Insurer argues that it is not a reasonable approach to interpret Statutory Condition 6 as being that an insured can defer the delivery of the proof of loss as long as the insured thinks that it is necessary. On the evidentiary record before me, I do not find that the van Gaal Family are deliberately postponing or failing to work diligently towards the finalization of their reconstruction. I accept the van Gaal Family’s evidence that they were concerned with the estimates being provided, there have been changes along the way and they now wish to provide a final proof of loss once the reconstruction has been finalized. Therefore, I do not find that van Gaal Family are in breach of their obligations under Statutory Condition 6.
[152] The appraisal process has not been triggered because the last condition (delivery of a proof of loss) has not yet been fulfilled. At the present time, the van Gaal Family are not required to appoint an appraiser or an umpire.
Disposition
[153] The van Gaal Family shall deliver their proof of loss forthwith upon the completion of the rebuild.
[154] The Insurer has requested that the appraisal process begin within sixty (60) days of the delivery of the proof of loss. In the interest of consistency, there shall be an order that the appraisal process begin within thirty (30) days of the delivery of the proof of loss.
[155] The balance of the relief sought by the Insurer in the Application is dismissed.
ISSUE #2 – STAY OF PROCEEDINGS / Case managment
Case Management
[156] Desjardins seeks an Order that the Claim and the Applications be assigned to Case Management. It argues that the parties have been unable to reach a consensus on any of the procedural issues in the litigation or the appraisal process.
[157] Rule 77.05(4) of the Rules of Civil Procedure sets out the applicable criteria to consider whether a proceeding should be case managed.
[158] Desjardins submits that the complexity of the issues raised in the appraisal process as well as the number of parties involved (three Plaintiffs, four Defendants, with three defence counsel) warrants the Court’s intervention.
[159] The Insureds argue that this decision will resolve the Applications, either that the relief is granted or dismissed. Once the decision has been rendered, the Claim is the only legal proceeding before the Court, which they describe as not being complex. Further, it is submitted that the parties had previously agreed upon a course of action and a timeline with respect to the Claim, but it was derailed as a result of the issuance of the Applications.
[160] As noted above, Desjardins’ Applications have been dismissed, save and except one relief that has been granted. Once the Insureds submit their proofs of loss upon the completion of their respective rebuilds, the appraisal process will continue (Campbell Family) or begin (Blazejewski Family and van Gaal Family), assuming that no agreements have been reached on the valuation of the loss. Therefore, at this time, there are no further issues before the Court regarding the appraisal process.
[161] Although I agree that there are multiple parties involved in the Claim, three experienced lawyers are representing the parties, the issues in the Claim are not complicated and the interplay with the appraisal process is no longer an issue before the Court. The Claim may not have moved along as quickly as the parties may have wished but it was due to the issues surrounding the appraisal process as well as the pandemic.
[162] Applying the factors set out in Rule 77.05(4) of the Rules of Civil Procedure, I find that the Claim does not require Case Management.
Disposition
[163] The Insurer’s Motion that the Claim and the Applications be referred to Case Management is dismissed.
Stay of Proceedings
[164] In its Notice of Motion, Desjardins seeks an Order staying the Claim until after the appraisals have been resolved and an Order staying the Examinations for Discovery until after the appraisals have been completed.
[165] The evidence confirms that in or around October 2019, the parties agreed to proceed to Examinations for Discovery, either during the week of February 10, 2020 or May 4, 2020, subject to counsels’ respective trial commitments. The parties also scheduled a Mediation to occur on June 25, 2020.
[166] The Insurer says that in or around January 2020, it became apparent that the appraisal in the Campbell Family matter was not proceeding as planned and there was lack of progress with regards to the appraisal on all three claims. The Insurer took the position that the Examinations for Discovery should be delayed until such time as the appraisal process has been completed in all three claims. The Insureds disagreed and advised that they were proceeding to the Examinations for Discovery during the week of May 4, 2020. The Insureds indicated to the Insurer that if they wish to bring a Motion for a stay of proceedings, it would be strenuously opposed. The Insureds served the Notices of Examinations.
[167] On May 4, 2020, the Insureds proceeded to the Examination for Discovery, by Zoom. The Insurer did not attend.
[168] The Insurer argues that the parties cannot conduct an Examination for Discovery without going through all of the receipts and estimates, which is the same process that will take place during the appraisal. It would be a duplication and waste of time. The Insurer submits that the result of the appraisal may affect the Bad Faith claim. If the umpire accepts the Insurer’s valuation, the Insureds’ Claim may be more difficult to prove. The opposite outcome (the umpire accepts the Insureds’ valuation) is also true, meaning that the Insurer’s case may be more difficult to defend. In any event, it is submitted that it makes more procedural sense to postpone the Examinations for Discovery.
[169] The Insureds submit that a stay of proceeding is an extraordinary relief. They say that it is not a novel concept that an appraisal process can be allowed to proceed in parallel with an action for bad faith.
[170] The Insureds argue that the Claim is not an action for the recovery under the policy. It relates to the alleged fraud and breach of the Insurer’s duty of good faith. The result of the appraisal process will only determine the quantum of the loss, nothing more.
[171] Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that a Court may stay any proceeding on such terms as are considered just. A defendant may move to have an action stayed pursuant to Rule 21(3) of the Rules of Civil Procedure, on four grounds: (a) lack of jurisdiction; (b) a party lacks legal capacity; (c) another proceeding is pending between the same parties in respect to the same matter; and (d) the action is frivolous or vexatious.
[172] The applicable principles on the issue of a stay of proceedings can be summarized as follows:
a. The right to invoke the appraisal process continues to exist despite the commencement of an action including claims, other than the issue of quantum of recovery under the policy (56 King Inc. v. Aviva Canada Inc.);
b. The appraisal process is not a bar to the institution of legal proceedings, nor does it give rise to a stay of proceedings (Agro’s Foods Inc. v. Economical Mutual Insurance Co., 2016 ONSC 1169);
c. A stay of proceedings should only be ordered in the clearest of cases when the following elements are met: (1) continuing the action would substantially prejudice the moving party beyond mere inconvenience or expense; (2) the stay would not cause an injustice to the responding party (Bnei Akiva Schools v. Sovereign General Insurance Co., 2016 ONSC 383);
d. The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case (Birdseye Security Inc. v. Milosevic, 2020 ONCA 355); and
e. Factors to be considered in determining prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay (Birdseye Security Inc. v. Milosevic).
[173] There is no dispute that the Claim and appraisals involve the same parties. Where it differs is the subject matter. The appraisal addresses only the quantum of the loss. At the completion of the appraisal process, the parties shall be given the value of the loss. Nothing more. Conversely, the Claim deals with matters such as contractual obligations, fiduciary duty, bad faith, conspiracy, fraud and dishonesty.
[174] While it may be true that similar evidence will be reviewed (i.e. estimates) in both the appraisal and the Claim, the reason for doing so is entirely different. During the appraisal, the umpire will assess the evidence, including the JPL estimates, for the sole purpose of determining the value of the loss.
[175] In the context of the Claim, the Examinations for Discovery will allow the parties to procure admissions and determine the case that they need to meet regarding the various allegations of breach of contractual and fiduciary duty, bad faith, conspiracy, fraud and dishonesty. There is no doubt that some of the same evidence will be reviewed with the witnesses, but it will be for different purposes, as set out above.
[176] The outcome of the appraisals is not determinative of the issues in the Claim. Although the value of the loss will need to be known when the matter proceeds to trial, I fail to see that such value is required for the purpose of conducting a proper Examination of Discovery.
[177] I simply cannot find the existence of any prejudice or injustice if the Claim proceeds in parallel to the appraisals.
Disposition
[178] The Insurer’s Motion for a stay of proceedings is therefore dismissed.
[179] The Insureds’ motion compelling the Defendants to attend Examinations for Discovery, to be held by video conference, at the next available date, is hereby granted.
Costs thrown away from the failed Examination for Discovery
[180] The Insureds seek costs thrown away from the failed Examination for Discovery that took place on May 4, 2020.
[181] As noted above, the Insureds insisted on proceeding to the May 4, 2020 Examination for Discovery and attended on that day. The Insureds marked a series of correspondences as exhibits and it forms part of the Insureds’ Motion Record.
[182] Putting aside the position of the Insurer that it wished to wait to proceed to the Examinations for Discovery until after the completion of the appraisals, the onset of COVID-19 was very disruptive and it brought on a lot of uncertainty.
[183] The Insurer points out that the productions are voluminous and there was reluctance in proceeding to a virtual Examination for Discovery.
[184] The pandemic was declared in or around mid-March 2020. The impact was significant and there were many unknowns, including how long the pandemic would last or the Court’s direction regarding conducting an Examination for Discovery by way of videoconferencing.
[185] Although it has now become clearer that we will continue to deal with the pandemic for quite some time and that a virtual Examination for Discovery is the norm, at least for the time being, I do not find that this was well known in May 2020.
[186] I can appreciate that the Insureds wished to move matters along, but I cannot fault Desjardins for being reluctant to attend a virtual Examination for Discovery in May 2020, with the limited information that was available during this period of time.
[187] With the circumstances that existed at that time, I find that the Insureds’ insistence to proceed to Examinations for Discovery was not reasonable.
Disposition
[188] Therefore, I am not prepared to grant the Insureds’ request for costs thrown away from the failed Examination for Discovery scheduled for the week of May 4, 2020.
SUMMARY
[189] The Insureds are not in breach of Statutory Condition 6. The Insureds shall deliver their final proofs of loss upon the completion of their respective rebuilds.
[190] In the Campbell Family matter, Mr. Obagi shall remain as their appraiser. The Insurer may keep Mr. Valeriote as its appraiser or appoint Mr. Keane, if it so chooses. If the Umpire maintains his views, as stated earlier, a new umpire will need to be appointed by the parties.
[191] In the Blazejewski Family and van Gaal Family matters, it is premature to appoint appraisers and an umpire. The appraisal process has yet to be triggered.
[192] The Insurer’s request that the appraisal process begin within thirty (30) days of the delivery of the proofs of loss is granted. The balance of the relief sought in the Insurers’ Motion and Applications are dismissed.
[193] The Insureds’ Motion to compel the Defendants to attend at the Examinations for Discovery is granted. Their request for costs thrown away is dismissed.
[194] I wish to express my thanks to all counsel for their very able arguments, the helpful exposition of the issues and for the high quality of the materials filed in these matters.
COSTS
[195] The Insureds have achieved substantial success and are entitled to their costs. While I have received a costs outline from each party, I would urge the parties to agree upon costs, failing which I would invite them to provide costs submissions in writing as follows: the Insureds shall serve and file written submissions of no more than five (5) pages, within thirty (30) days of the date of this Decision; the Insurer shall serve and file written submissions of no more than five (5) pages, within fifteen (15) days thereafter. For the sake of clarity, each counsel representing the Insurer may file written submissions; and if required, within a further five (5) days, the Insureds shall serve and file a Reply, not to exceed two (2) pages.
M. Smith J
Released: October 30, 2020
COURT FILE NOS.: CV-19-80411; CV-20-82568; CV-19-82139
DATE: 2020/10/30
ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-19-80411
Ruth Campbell et al., Plaintiffs
AND
Desjardins General Insurance Group et al., Defendants
Court File No.: CV-20-82568
Desjardins General Insurance Group et al., Applicants
AND
Derek and Alissa van Gaal, Respondents
Court File No.: CV-19-82139
Desjardins General Insurance Group et al., Applicants
AND
Ruth and Leonard Campbell et al., Respondents
decision and reasons
M. Smith J.
Released: October 30, 2020