TGP Decisions

Vincent v. The Economical Insurance Group, 2021 ONSC 7169

Tim Crljenica was successful in a motion to compel the plaintiff to participate in an appraisal of his property damage claims, pursuant to the Insurance Act.

The plaintiff sustained three distinct property losses at his home in 2010. He commenced litigation in 2011, suing his insurer under his homeowner’s policy in relation to two of the losses. In 2018, the plaintiff was granted leave to amend his claim to add the third loss to the statement of claim. Following further examinations for discovery of the plaintiff and the insurer, Economical requested that the plaintiff participate in an appraisal by appointing his own appraiser and jointly agreeing on the appointment of an umpire. The plaintiff refused to comply, arguing that the request was made too late in the process.

Justice Carey granted the relief requested by Economical, that the plaintiff provide a sworn proof of

  • loss within 14 days; that the plaintiff appoint an appraiser
  • seven days thereafter, failing which Economical may proceed with appraisal
  • in his absence; that the plaintiff’s appointed an appraiser, jointly agree with Economical’s appraiser as to an umpire within 15 days; and that if the parties fail to
  • agree on an umpire within 15 days, Glenn Gibson shall be appointed as umpire

The first issue Justice Carey had to address was whether leave should be granted to Economical to bring the motion. The matter had been set down prior to the 2018 amendment to add the third water loss, and a six-week trial had been scheduled. The trial was adjourned upon the amendments and no new trial had yet been scheduled due to COVID.

Justice Carey accepted that leave ought to be granted due to a substantial change in circumstances. He wrote that the COVID-19 pandemic had substantially interfered with the Court’s ability to deal with trials. The need for finite judicial resources to deal with criminal matters left less availability for civil matters to proceed in a timely fashion. This met the requirements to grant leave, in Justice Carey’s opinion.

The ongoing effect of the pandemic also weighed on Justice Carey’s decision to order the plaintiff to proceed with appraisal. The plaintiff insisted that he was entitled to his “day in Court” in arguing against the appraisal. Justice Carey reasoned that it would be “an egregious misuse of the Court’s resources” to schedule a six week trial for the plaintiff’s property damages claim when there was a legislated alternative in the form of an appraisal. Moreover, the appraisal process would permit for an expeditious result and utilize appraisers with expertise in the valuation of the property damage loss. The expertise available from the appraisal was greater than the Court’s experience in valuing a person’s home contents.

Justice Carey also addressed the plaintiff’s request for his litigation costs incurred to date. Economical argued that because the appraisal did not end the litigation, the plaintiff’s right to seek costs was not extinguished. Justice Carey agreed and was satisfied that the plaintiff could pursue costs from the trial judge at the end of a trial (if the matter continued following appraisal), which would be necessary to address the limitations defence raised by Economical.

This result was in line with case law addressing section 128 of the Insurance Act and the appraisal process. As the law currently stands, appraisal under the Insurance Act is a mandatory process if requested by either the insurer or the insured following the submission of a Proof of Loss. There is little recognized leeway by the Courts in rejecting the request for appraisal. As seen in Justice Carey’s decision, the passage of years does not eliminate the right to request appraisal. The Courts recognize that appraisal is a much more convenient and expedient manner to value a property damage claim, and allows the Court to focus its limited resources on matters it is required to hear or where it has the appropriate expertise.

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