Court File and Parties

Court File No.: CV-17-568804 Date: 20220429 Ontario Superior Court of Justice

Between: GEORGE ARVANITOPOULOS, DESPINA ARVANITOPOULOS, ELENI ARVANITOPOULOS, and MICKAEL ARVANITOPOULOS Plaintiffs - and - THE WAWANESA MUTUAL INSURANCE COMPANY Defendant

Counsel: Alfred M. Kwinter and Susan K. Dhaliwal for the Plaintiffs Daniel M. Himelfarb for the Defendant

Heard: April 7, 2022

PERELL, J.

Reasons for Decision

[1] This debacle involves a fire loss appraisal procedure under the Insurance Act [1] and a fire insurance action under the Rules of Civil Procedure [2]. The debacle will make a fine attraction at Ripley’s Believe or Not Museum in Niagara Falls, Ontario.

• Believe it or not, with a fire that occurred on February 16, 2015 to a home, in Toronto, Ontario, seven years later, the appraisal process under s. 148 of the Insurance Act remains stalled just outside the starting gate.

• Believe it or not, with a fire insurance claim action in the Superior Court of Justice commenced on February 1, 2017, five years after the launch of the action, it has not got beyond the pleadings stage.

• Believe it or not, with a fire that occurred on February 16, 2015, seven years later, the repairs have not been completed and the fire damaged home remains uninhabitable.

• Believe it or not, Wawanesa’s fire repair contractors caused structural and environmental damage to the premises while undertaking repairs of the fire damaged home.

• Believe it or not, with Additional Living Expense (“ALE”) coverage for $79,000, for seven years, Wawanesa has spent $749,326.06 to house the Plaintiffs George and Despina Arvanitopoulos in one furnished premises and the Plaintiff Mickael Arvanitopoulos and sometimes the Plaintiff Eleni Arvanitopoulos in a second furnished premises. Why two residences? Because Wawanesa cannot get the repairs completed on the single-family home, and it chose to pay for two furnished rentals for the displaced family until it recently changed its mind and requested that the Arvanitopoulos family accept single accommodation.

• Believe it or not, after seven years of ALE payments, Wawanesa then abruptly decided to turn off the tap, prompting the Arvanitopoulos family to bring an interlocutory mandatory injunction motion to continue the ALE payments.

• Believe it or not, the appraisal process and the court action have been flummoxed by uncooperative and officious litigants.

[2] Thus, believe it or not, the Insurer, Wawanesa brings a motion for the following relief:

a. an Order that Wawanesa be allowed to forthwith conduct an inspection of the Arvanitopoulos family’s property, 459 Delaware Avenue, Toronto, under Rule 32 of the Rules of Civil Procedure ;

b. an Order that Wawanesa be permitted to have said inspection completed by an environmental engineer of its choosing;

c. an Order that Wawanesa be permitted to have said inspection completed by a Matterport (3D video photography) technician of its choosing;

d. an Order that Wawanesa and its experts/professionals be permitted to use measuring, surveying and photography and video during said inspection;

e. an Order that Wawanesa be permitted to share all information and evidence obtained from said inspection with any and all experts and professionals of its choosing; and,

f. an Order requiring the costs of this Motion to be paid on a partial indemnity basis by the Arvanitopoulos family to Wawanesa within 30 days.

[3] Thus, believe it or not, the Arvanitopoulos family, the Insured, brings a motion for the following relief:

a. an Order dismissing Wawanesa’s motion for an inspection pursuant to Rule 32 with their appraiser, structural engineer, environmental engineer and Matterport technician;

b. an Order granting the Arvanitopoulos family a mandatory injunction requiring Wawanesa to continue payments of the Arvanitopoulos family’s ALE totaling between $8,640.00 to $9,000.00 a month until judgment, settlement of the within action, or repair of the property is completed, whichever occurs first;

c. an Order directing the appraisal to proceed in accordance with Statutory Condition 11 of s. 148 of the Insurance Act, to determine valuation only to restore the dwelling building and unscheduled personal property to their pre-loss values on both a replacement cost value (RCV) and actual cash value (ACV) basis and directing that the causation and extent of damages are outside the jurisdiction of the umpire to determine;

d. an Order directing that the appraisal award be written to include only one amount for the RCV and one amount for the ACV to repair the damage to the dwelling and to repair or replace the damaged unscheduled personal property however caused. (This is to include emergency services and demolition costs associated with damage to the dwelling building; cleaning, repair, replacement, moving and storage costs associated with unscheduled personal property incurred by the Arvanitopoulos family or paid to others on behalf of them by Wawanesa);

e. an Order directing the parties to proceed forward forthwith with the appraisal on the basis that partial matters in disagreement have been identified and agreed to by the appraisers in accordance with s. 128(3) of the Insurance Act as “any amount over and above what has been paid to or on behalf of the Arvanitopoulos family”;

f. an Order directing that Wawanesa provide a list of all payments made to date along with invoices and supporting documentation so that the appraisers may identify items remaining in dispute and determine valuation between themselves or with the umpire;

g. an Order directing that ALE is a legal issue that should not be dealt with through the appraisal in accordance with Statutory Condition 11 of s. 148 of the Insurance Act; and

h. an Order awarding the Arvanitopoulos family costs on full indemnity basis of this motion payable within 30 days.

[4] For the reasons that follow, I dismiss both motions with costs in the cause on terms that the payment of the ALE for May, June, and July 2022 be made by Wawanesa.

A. Facts

[5] The following account of the facts is made strictly for the purposes of the two motions now before the court. It shall be for the umpire and a trial or summary judgment judge to believe or not and make the binding factual determinations.

[6] In February 2015, George and Despina Arvanitopoulos and their adult daughter Eleni, and their adult son Mickael were living in a three upstairs-bedroom, one basement-bedroom, semi-detached home of approximately 1,500 square feet at 459 Delaware Avenue in Toronto.

[7] The 459 Delaware Ave. home was insured with the Wawanesa Mutual Insurance Company (Insurance policy No. HPC734022). In the event of a loss, the policy provided guaranteed replacement cost and the following coverages: (a) dwelling - $395,000; (b) private Structures - $59,350; personal property - $316,400; and (d) Additional Living Expenses (“ALE”) - $79,100.00.

[8] On February 16, 2015, there was a fire at the Arvanitopoulos family’s home.

[9] After the fire, the Arvanitopoulos family moved out of the family home into accommodation arranged by Wawanesa. Wawanesa did not arrange lodging in one residence.

[10] Believe it or not since the fire, George and Despina have lived at a furnished residence in Etobicoke at Wawanesa’s expense. Meanwhile Eleni and Mickael lived at a different furnished residence. Then Mickael married, and he now lives with his wife and their children in a furnished residence on Front St. in downtown Toronto at Wawanesa’s expense. Eleni lived at the Front St. premises from June 2015 to January 2017; then she moved out. Eleni has paid her own rent since January 2017. But she is keeping her receipts ($1,500 per month), and she expects being reimbursed by Wawanesa.

[11] Wawanesa has spent over $750,000 to house George and Despina in one furnished unit and Mickael Arvanitopoulos, his wife, and their children, and sometimes Eleni in a second furnished residence.

[12] During the events, described below, Wawanesa gave the Arvanitopoulos family numerous assurances that it would pay ALE until restoration of the 459 Delaware Ave. home was completed - which to date has not happened.

[13] For approximately a year after the fire until mid-February 2016, when the Arvanitopoulos family denied Wawanesa access to the property, Wawanesa hired contractors to undertake urgent remedial and repair work, to inspect the property, to assess the damage, and to prepare environmental and engineering and construction reports and cost estimates. There were reports from Parcel Laboratories Ltd., Maple Environment Inc., Di Scipio Inc., and Giffin Koerth Inc. (9 reports). Contractors that worked on the property included CDN Restoration, Rathlin Contracting Ltd., Rob Young, and Burkes Restoration Inc.

[14] The first year after the fire, an inspection and reconstruction debacle began, and it has continued to this date. During the first year after the fire, Wawanesa lost 18 containers of clothing and personal belongings including jewelry, family heirlooms, and religious artifacts before completing an inventory. During the first year after the fire, while making repairs, a contractor disturbed asbestos wrap on the heating ducts. The disturbance contaminated the premises with airborne asbestos particles. Environmental testing confirmed the contamination. During the first year after the fire, there were construction accidents that caused new damage to the premises. Water pipes burst. Floors were damaged. There was more contamination with the removal of the furnace. Unauthorized work was performed, some of it negligently. George Arvanitopoulos’ signature was forged. There were heated exchanges between the workers and the Arvanitopoulos family. Serious allegations of negligence, dishonesty, and misfeasance were made against Burkes Restoration Inc., one of Wawanesa’s contractors.

[15] On the first anniversary of the fire, in mid-February 2016, the Arvanitopoulos family barred any of Wawanesa’s contractors from 459 Delaware Ave. The repair work stopped. Believe it or not, the state of the property has not changed since 2016.

[16] Another year passed. On February 1, 2017, the Arvanitopoulos family commenced this action against Wawanesa. George and Despina claim: (a) damages for breach of contract of $2.0 million; (b) general damages of $2.0 million; (c) aggravated and punitive damages of $1.0 million; and (d) damages for mental distress of $500,000 each. Eleni and Mickael claim: (e) damages for mental distress of $500,000 each; and (f) aggravated and punitive damages of $300,000 each.

[17] Believe or not, an insurance claim under an insurance policy with approximately $750,000 of coverage on a semi-detached home that I assume was worth no more than $1.0 million in 2015 is a $7.5 million breach of contract and negligence action that has only completed pleadings with examinations for discovery scheduled for May 2022.

[18] In their Statement of Claim, the Arvanitopoulos family claim that notwithstanding repeated requests to it, Wawanesa did not carry out repairs and failed to pay the amounts due under the policy. The Arvanitopoulos family claim that Wawanesa breached the terms of the policy and that its agents caused additional damages to the property and misled the family as to the nature of the repairs required to the property. The Arvanitopoulos family claim that Wawanesa failed to carry out a necessary environmental assessment to ensure that the property was safe for entry and thereby endangered the family’s health. In paragraph 11 of the pleading, there is a claim for damages for mental distress. Paragraph 11 states:

11. The Plaintiffs claim that the conduct of the Defendant in failing to carry out its obligations under the policy in a fair, prompt and expeditious manner has caused the Plaintiffs, and in particular Eleni Arvanitopoulos, severe mental distress for which the Plaintiffs claim they are entitled to damages.

[19] Before Wawanesa delivered its Statement of Defence, in an email message dated August 8, 2017, Wawanesa wrote:

In response to your concerns regarding the value of coverage or compensation available to you and your family, I can advise that Wawanesa is committed to payment or compensation on this claim for any loss or damage suffered that is directly attributable to the fire, or to any loss or damage that is attributable to any work performed by any Wawanesa recommended vendors regardless of the stated policy limits.

[20] Before Wawanesa delivered its Statement of Defence, in a letter dated November 21, 2017, Wawanesa acknowledged losing 15 bags of clothing.

[21] Before Wawanesa delivered its Statement of Defence, in a letter dated July 11, 2018, Wawanesa wrote:

In response to your inquiries regarding policy limits, Wawanesa has previously advised your clients that we are committed to payment of their claims for any loss that resulted directed 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 such through the appraisal process.

[22] On December 6, 2018, Wawanesa delivered a Notice of Intent to Defend.

[23] On December 19, 2018, Wawanesa delivered a Demand for Particulars.

[24] On February 4, 2019, the Arvanitopoulos family delivered a Response to the Demand for Particulars.

[25] On February 15, 2019, on the eve of the fourth anniversary of the fire, Wawanesa invoked the appraisal process of s. 148 of the Insurance Act.

[26] On September 11, 2019, Wawanesa delivered its Statement of Defence.

[27] In its Statement of Defence, among other things, Wawanesa denies failing to carry out replacements and repairs. It pleads that it fulfilled all the terms of the policy including providing accommodation to the Arvanitopoulos family. It pleads that if Eleni suffered from mental distress, it was a pre-existing condition. It pleads that the family failed to mitigate its damages and that they failed to make available particulars of their damages and prevented Wawanesa for evaluating the claim.

[28] On November 26, 2019, George and Despina Arvanitopoulos filed an Interim Fire Proof of Loss Claim indicating that the “damages exceed policy limits as agreed upon with insurer.”

[29] The initiation of the appraisal process under the Insurance Act did not have an auspicious start. It was necessary for Wawanesa to bring a motion and to obtain an endorsement from Justice Schabas on November 29, 2019 to organize the appraisal process. [3]

[30] At the time of the motion before Justice Schabas, there was a disagreement between the parties about the effect, if any, of Wawanesa’s correspondence about insurance limits. To settle the motion, the parties agreed that the appraisal should go forward without prejudice to any rights, claims or defences the parties may raise under the terms of the policy. The parties agreed that the appraisal could determine damages beyond the policy limits including damages attributable to work performed by Wawanesa’s vendors and contractors.

[31] As will become more apparent from the discussion below, it now appears, however, that there is a difference between the parties in their understanding of the umpire’s task. In particular, there is a disagreement about whether the umpire should differentiate the damages caused by the fire from the damage caused by Wawanesa’s vendors and contractors.

[32] Wawanesa appointed John Valeriote as its appraiser. George Milnes was appointed as the Arvanitopoulos family’s appraiser and together they selected Mr. Stephen Agnew as the umpire.

[33] On February 11, 2020, there is a conference call meeting in the appraisal process. The umpire, Mr. Agnew, directs the appraisers to exchange briefs by April 30, 2020 for a site meeting on May 4, 2020 and the appraisal to proceed on May 6, 2020.

[34] In relatively short order, it appears that the appraisal process did not follow the script directed by Mr. Agnew, and in the summer of 2020, on June 30, 2020, Mr. Milnes delivered the Arvanitopoulos family’s five-volume appraisal brief of documents and reports. Wawanesa did not deliver its documents. There was a dispute about Wawanesa’s desire to reinspect the premises from which it had been barred for four years.

[35] The parties could not agree about Wawanesa’s request to inspect the fire-damaged premises and on August 14, 2020, Mr. Agnew set a new timetable. He scheduled an in-person appraisal hearing from October 15 to October 31, 2020, a false hope as it turned out.

[36] On September 15, 2020, Mr. Agnew went by himself to visit 459 Delaware Ave.

[37] Not being able to resolve the dispute about inspecting the property, on October 14, 2020, Wawanesa serves a Notice of Motion pursuant to Rule 32 of the Rules of Civil Procedure for an inspection of 459 Delaware Ave.

[38] The Rule 32 motion is scheduled for December 21, 2020. However, the motion is adjourned due to technical difficulties with Ontariocourts.caselines.com. The Rule 32 motion is rescheduled for March 30, 2021. However, the motion is again adjourned because Wawanesa omitted to confirm the motion. The Rule 32 motion is rescheduled for October 7, 2021.

[39] While the inspection motion is pending, on July 27, 2021, Wawanesa writes the Arvanitopoulos family to point out that they have been had paid ALE far in excess of the policy limits. Wawanesa wishes to explore reducing the payment by having the family look for a single residence. The family rebuffs Wawanesa’s wishes.

[40] On October 7, 2021, the Rule 32 motion is heard by Associate Justice McAfee. It is vehemently contested. The Arvanitopoulos family opposes Mr. Valeriote bringing any representatives of Burkes Restoration Inc. onto the property because they have numerous allegations of misfeasance by that contractor.

[41] Associate Justice McAfee releases her Reasons for Decision on the Rule 32 motion on November 4, 2021. [4] Her Reasons for Decision indicate that she permits Mr. Valeriote to conduct an inspection pursuant to Rule 32. She permits him to bring with him an engineer from Roar Engineering. She denies Wawanesa’s request for a contractor to participate in the inspection.

[42] Following the release of Associate Justice McAfee’s decision, Wawanesa’s counsel has a bad epiphany. It becomes apparent to Wawanesa’s counsel that two engineers, a structural and an environmental engineer, are required for Mr. Valeriote to adequately represent Wawanesa in the appraisal process. It dawns on Wawanesa’s counsel that if a contractor like Burkes Restoration Inc. cannot not attend then Wawanesa needs a Matterport (3D video photography) technician to film the inspection. In his epiphany, it, however, does not dawn on Wawanesa’s counsel, that there could be a re-attendance on Associate Justice McAfee to ask her pursuant to Rule 59.06 to vary or amend her Order or to address matters not considered, or if resort to that rule was inappropriate, then there could be an appeal of her order. However, there was no re-attendance. There was no appeal of Associate Justice McAfee’s decision. Moreover, to date neither party has even bothered to take out a formal order of Associate Justice McAfee’s decision.

[43] Although Wawanesa was unsatisfied and disappointed by Associate Justice McAfee’s order, it mistakenly believed it could not do anything about it. So, Wawanesa decided rather than go ahead with what it had achieved, Wawanesa’s counsel attempted to negotiate a better result.

[44] The motions now before the court are the procedural fiasco that followed the attempt to settle the terms of engagement for an inspection.

[45] The failed negotiations are the run-up to the dueling motions before the court. It seems that the Arvanitopoulos family is prepared to agree to additional experts for the inspection, but the family is seeking to impose terms and conditions on the inspection and obligations on the umpire. In the discussions between the parties, the Arvanitopoulos family sought terms and conditions: (a) on the ways and means of Wawanesa’s inspection; (b) on the use to be made of the inspection reports in the action; (c) on the use to be made of the inspection reports in the appraisal process; (d) to direct the umpire on what he may or may not appraise and on how he should report his appraisal results; (e) to require the umpire to make determinations with respect to the ALE; and (f) to require Wawanesa to deliver evidence and reports.

[46] Wawanesa rejected the terms and conditions as unreasonable and decided to bring a second Rule 32 motion and to take the nuclear option of terminating the ALE. On January 22, 2022, Wawanesa wrote to the Arvanitopoulos family that ALE payments would cease effective April 1, 2022. Since the fire, Wawanesa has paid $749,326.06 on ALE for the Arvanitopoulos family. On January 22, 2022, Wawanesa advised the Arvanitopoulos family that it was terminating the ALE.

[47] The Arvanitopoulos family responded with its motion for a mandatory interlocutory injunction compelling Wawanesa to continue paying ALE. Eleni Arvanitopoulos deposed that Wawanesa’s termination of the ALE and its seven-year insurance claim adjustment adversely affected the psychological health of her whole family. Eleni deposed that she was experiencing suicidal ideation. She deposed that the stress was the cause of her resigning the job she adored on March 24, 2022. She produced some of her own medical records, including notes from her treating psychiatrist since 2017. There are also double perhaps triple hearsay medical notes from doctors for other members of the Arvanitopoulos family. George’s, Despina’s and Mickael’s doctors have expressed concerns about the negative impact of the termination of the ALEs on their health and “recommended” that it continue.

[48] On February 2, 2022, as the seventh anniversary of the fire approached, the parties attended in Civil Practice Court, and Justice Dow made the following endorsement:

This involves an Additional Living Expense (ALE) and variation of an Order for inspection of the subject property. The parties’ motion shall proceed on April 7, 2022 for 4 hours with the payment of the ALE for April 2022 to be made (subject to further order of this Court) because the payments have been made for the last 7 years and are about $8,000 which will facilitate the hearing of these motions on the first mutually convenient date.

[49] I heard the dueling motions on April 7, 2022 and reserved judgment. I made an interim interlocutory order that the ALE payments continue until the release of the reserved decision.

B. Discussion and Analysis

[50] The analytical starting point for determining the two motions now before the court is to keep the appraisal process separate and distinct from the court action.

[51] I will explain the relationship between the appraisal process under the Insurance Act and court actions in Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hall Inc., 2021 ONSC 1684 [5], and there are very useful discussions in Campbell v. Desjardins General Insurance Group, 2022 ONCA 128, aff’g 2020 ONSC 6630 [6], and 854965 Ontario Ltd. v. Dominion of Canada General Insurance Co. (2003), 64 O.R. (3d) 234 at para. 25 [7].

[52] For present purposes, the points to emphasize about the separation of the appraisal process and the court process are as follows:

• The appraisal process under the Insurance Act is a free-standing mandatory process that must proceed if either party requests it. [8]

• The appraisal process is intended to be a final and binding determination of the loss. [9] The appraisal process is mandatory, and unless waived by both parties or unless impossible to perform, there must be an appraisal before there can be recovery under the policy. [10] The appraisal process is intended to a facilitate a quick resolution of a dispute about the value of the property insured, the value of the salvage, or the quantification of the damage to the property, but it is not intended to be an arbitration or an alternative dispute resolution method that will resolve all the issues between the parties; all other non-valuation issues are outside the province of the appraisers and umpire to resolve. [11]

• The appraisal process is not an arbitration or an adjudication but is considered to be a binding valuation that determines the value of loss before there can be any recovery on the insurance contract. [12]

• Where there is a dispute about the value of the insured’s loss, s. 148 of the Insurance Act requires that the determination of the loss must be resolved before there can be any recovery on the insurance contract, and a court action may in appropriate circumstances be stayed pending the completion of the appraisal process. [13] However, the appraisal process is typically available while the court proceedings are proceeding, and the appraisal process and the court proceeding may run concurrently, especially when there are issues outside the province of the appraisal process. [14] The court will decide the interpretation and coverage issues and the interpretation can then be applied to the values as appraised. [15]

• In 854965 Ontario Ltd. v. Dominion of Canada General Insurance Co. [16], Justice Kennedy described the appraisal process under the Insurance Act as follows:

The appraisal process is contemplated, by the terms of statutory condition # 11, to take place prior to any recovery under the contract, whether there is any dispute as to the ability to recover on the contract, and independently of all other questions. The appraisal process commonly determines value but leaves question[s] of entitlement and defences to recovery under the contract to a lawsuit under the contract of insurance. The appraisal process can take place concurrently with a lawsuit dealing with the insured's claim to recover under the contract and an insurer's defences to payment.

• The appraisal process is subject to judicial review, but it is not subject to the provisions of the Statutory Powers Procedure Act. [17] The umpire decides the procedure for the appraisal process on a case-by-case basis. [18]

• The court has inherent jurisdiction to make such procedural orders as are necessary to give effect to the statutory appraisal scheme in the Insurance Act and to prevent adjudication by ambush, to promote efficient and meaningful discovery as a means of reaching a just result, and to equip both sides as well as the umpire with the information needed to present a full answer and defence. [19]

[53] Keeping the separation of the appraisal process and the court process in mind, in the immediate case, Wawanesa’s reprise or misadventure Rule 32 motion can be quickly dealt with. As already mentioned above, if Wawanesa was disappointed with the outcome of that motion, it ought to have appealed or it might have been able to resort to Rule 59.06 which states:

Amending, Setting Aside or Varying Order

Amending

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

Setting Aside or Varying

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[54] After Associate Justice McAfee released her decision, a motion under Rule 59.06 or an appeal were Wawanesa’s procedural choices. It did not have the choice of a reprise or misadventure Rule 32 motion, which is what I am now seized with. To be clear, I am not seized of a Rule 59.06 motion and there has been no appeal of Associate Justice McAfee’s order, which has not even been taken out. I am seized of a motion for which there is no authority under and that does not exist under the Rules of Civil Procedure. Wawanesa’s attempt to get a second helping of a procedural meal from the court was ill-advised.

[55] After Associate Justice McAfee’s decision, Wawanesa, however, was not ill-advised to attempt to resolve the matter of the inspections directly with the Arvanitopoulos family. After Associate Justice McAfee’s decision, what was ill-advised was the Arvanitopoulos family’s response to that initiative. The parties should have been able to resolve their differences about the appraisal process with the umpire, but they didn’t.

[56] While Wawanesa’s appraiser’s performance in the appraisal process was dilatory and deficient; the response of the Arvanitopoulos family was officious, uncooperative, and overreaching. Wawanesa was owning the problems caused by the contractors, and it had taken responsibility for providing housing for the family. The response of the family to Wawanesa’s efforts to defend itself in the appraisal process was inappropriate. The matter of the contractor’s damage could not be ignored. It was for Wawanesa to decide how to give full answer and it was for the umpire to decide how the appraisal should be conducted. The family’s demand for terms and conditions on the appraisal process and on the umpire interfered with a fair appraisal process and offended rudimentary principles of due process. The family’s demand for terms and conditions interfered with the authority of the umpire.

[57] These observations bring me to the matter of the Arvanitopoulos family’s two-part motion for: (a) directions as to the conduct of the appraisal; and (b) a mandatory injunction for the continuation of ALE.

[58] Addressing the first part of the motion, it is entirely for the umpire to determine the manner of the conduct of the appraisal, which it is worth repeating, is not an arbitration but a sui generis and malleable procedure to be determined by the umpire.

[59] Mr. Agnew should be afforded the opportunity to determine the procedure and decide the appraisal. If he errs, then there can be a judicial review. At this juncture, the court’s involvement is premature. The factual backdrop of the motion before Associate Justice McAfee may have been the appraisal, but she was deciding a Rule 32 motion for the purposes of the concurrent court proceedings, not deciding matters for the umpire. On the Arvanitopoulos family’s motion for directions now before the court, I shall also not interfere with or intrude upon the umpire’s role. That being the situation, I should and shall dismiss items c, d, e, f, and g of their claim for relief.

[60] This brings me the Arvanitopoulos family’s motion for a mandatory injunction. The parties agreed about the applicable law, but they disagreed about its application to the circumstances of the immediate case.

[61] The judgment of the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) [20] sets out the test to be applied by a court in deciding whether to grant an interlocutory injunction. [21] Under the RJR-MacDonald test for an interlocutory injunction, the court considers three factors: (1) whether the plaintiff has presented a serious issue to be tried or, in a narrow band of cases, a strong prima facie case; (2) whether the plaintiff would suffer irreparable harm if the remedy for the defendant’s misconduct were left to be granted at trial; and (3) where does the balance of convenience or inconvenience lie in the granting or the refusing to grant an interlocutory injunction.

[62] The presence of a meaningful undertaking from the plaintiff to pay damages to be available should it later be determined that the interlocutory injunction ought not to have been granted, is another factor that the court considers before granting or refusing a request for an interlocutory injunction. The Rules of Civil Procedure stipulate that the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party. [22] No undertaking was given in the immediate case, and if I needed to, then I would dismiss the Arvanitopoulos family’s request for a mandatory injunction on this ground alone.

[63] I, however, do not need to rely on the failure to provide an undertaking because the family members severally fail to satisfy the test for a mandatory injunction.

[64] A mandatory injunction is an order requiring a party to perform its legal obligations or to take steps to restore a previously existing situation. A mandatory injunction can be worded in a way that makes it seem to be a prohibitory injunction, but its substance will be to compel conduct, and thus the injunction compels as opposed to restrains conduct and may therefore be classified as mandatory. The RJR-MacDonald test applies to mandatory injunctions, but a more stringent test is applied, and it is much more difficult to obtain a mandatory injunction. [22] Interlocutory mandatory injunctions are truly exceptional relief. [23] Courts impose a higher standard on a plaintiff seeking a mandatory injunction to compel action by the defendant than on a plaintiff seeking a prohibitory injunction that would simply restrain the defendant from performing defined acts. [24]

[65] In the immediate case, the Arvanitopoulos family relies on the circumstance that Wawanesa has paid over $750,000 in ALE as satisfying the first factor of showing a strong prima facie case for a continuation of the ALE. The problem with this argument is that Wawanesa’s payments may be more a matter of commendably honourable corporate conduct or uncommendably stupid corporate behaviour. It is far from clear what is the basis for an ongoing obligation to pay tenfold ALE. As a contractual matter of the insurance policy, the ALE has been paid tenfold. As a tort matter, the ongoing ALE may be a type of damage, but there has been no judgment making this award payable. I rather doubt - but make no finding in this regard - that the ALE may be recoverable or clawed back by Wawanesa, but subject to giving proper notice, which I shall impose as a term of the dismissal order, I know no legal basis and was not told any for compelling Wawanesa to continue paying the ALE.

[66] The legal basis for continuing the ALE for Eleni, who has not been the beneficiary of it since 2017, is non-existent. In my opinion, the legal basis for continuing ALE for Mickael is surreally non-existent. He does not qualify for ALE. He has established a home of his own. In the normal life cycle of family, adult children leave to establish a family home of their own, which is what he has done. He is not waiting to return to live at 459 Delaware Ave. to live with his parents. He has moved on, just as Eleni has moved on.

[67] Moving on to the irreparable harm part of the test for an interlocutory injunction, the alleged irremediable harm in the immediate case is an exacerbation of the poor mental health of the various Arvanitopoulos family members caused by the termination of the ALE.

[68] In my opinion, there is no irreparable harm. Putting Eleni aside for the moment, there is no evidence to infinitesimal that George, Despina, and Mickael will suffer irreparable mental harm or be unable to cope with the termination of the ALE. A damage award after a trial or a summary judgment is more than adequate to do justice in the immediate case.

[69] As for Eleni, she has not been the recipient of ALE and she can continue keeping her monthly receipts. She has no irreparable harm from the discontinuance of ALE – which she has not been receiving since 2017 - and she cannot dovetail on the alleged angst of her family members.

[70] That is enough to dismiss the motion for a mandatory interlocutory injunction. I need not go on to consider the balance of convenience in a case where the parties seeking an extraordinary mandatory injunction have not shown a strong prima facie case, have no irreparable harm, and have not given an undertaking as to damages.

[71] I, therefore, dismiss the Arvanitopoulos family’s motion for a mandatory injunction.

[72] Rule 37.13(1) provides that on the hearing of a motion, the presiding judge may grant the relief sought or dismiss or adjourn the motion, in whole or in part and with or without terms. In the immediate case, I dismiss Wawanesa’s motion and the Arvanitopoulos family’s motion on terms that the payment of the ALE for May, June, and July 2022 be made by Wawanesa. Given that these payments have been made for seven years, there may be the basis for a promissory estoppel in the immediate case.

[73] The cases about promissory estoppel establish the following elements: (a) an existing legal relationship; (b) a clear and unambiguous representation; (c) an intention to affect the legal relationship; and (d) detrimental reliance upon the representation. [23] Promissory estoppels may not be fully enforceable because it may be possible for the contracting party that made the representation or assurance to retract with proper notice. [24]

C. Conclusion

[74] For the above reasons, I dismiss both motions with costs in the cause on terms that the payment of the ALE for May, June, and July 2022 be made by Wawanesa.

Perell, J. Released: April 29, 2022