Jerry et. al. v. Black et. al, 2023 ONSC 603 (Div. Ct.)

This personal injury action arises from a motor vehicle accident. The defendants arranged for the primary plaintiff to be assessed by a neuropsychologist. Counsel for the parties exchanged correspondence confirming: the date for the 6.5 hour appointment; the plaintiff’s agreement to attend; and that a missed appointment fee would be charged if he failed to attend. The amount of the missed appointment fee was not discussed. The plaintiff did not attend the appointment and the neuropsychologist charged a missed appointment fee of $1,695. The defendants sought reimbursement of the fee, and the plaintiffs refused to pay. The defendants brought an unsuccessful motion for reimbursement in which the motion judge accepted the plaintiffs’ argument that the court did not have jurisdiction to make the order sought, and dismissed the motion.

The defendants obtained leave to appeal, and on appeal the Divisional Court allowed the appeal and ordered the plaintiffs to pay the missed appointment fee. In its reasons the Divisional Court confirmed that the Superior Court has jurisdiction to order that a party pay the costs of an independent medical examination that they failed to attend even in the absence of a court order for the examination.

Diperri v. The Wawanesa Mutual Insurance Company, 2021 ONSC 4680

In Diperri v. The Wawanesa Mutual Insurance Company, Justice Myers of the Ontario Superior Court stayed the action and required the plaintiffs to advance their claim by way of appraisal under s.128 of the Insurance Act RSO 1990, c I.8.


The plaintiff’s home suffered a water loss on July 8, 2013. The defendant, Wawanesa Mutual Insurance Company, insured the plaintiffs for losses to their goods as a result of the flood.

During the restoration, the plaintiffs allege that various items went missing from their home and/or storage. As a result, the plaintiffs sued their insurer in tort and bailment.

The plaintiff’s insurance policy with the defendant is subject to Statutory Condition 11 under the Insurance Act that requires parties to resolve specified disputes by appraisal under s.128 of the statute. Statutory Condition 11 states the following:


11. 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 plaintiffs filed for a proof of loss and the parties then used an appraisal to value some of the plaintiffs’ damaged goods. The plaintiffs also claim that a significant amount of their goods were never returned and sue for this loss as well.

In the statement of claim, the plaintiffs seek $226,000.00 for the damaged and lost goods, as well as other claims with respect to their recovery against the defendant, including aggravated and punitive damages. The claim was made against Wawanesa Mutual Insurance Company, but did not include the adjuster or the company who stored the plaintiffs’ goods. The plaintiffs conclude that their insurer is liable for the sub-bailment or negligent conduct of its sub-bailors, bailee, and contractor.

In an initial appraisal, the umpire stated that it will be up to the plaintiffs to decide whether or not they want to pursue action against any responsible party, including Wawanesa Mutual Insurance Company. Wawanesa Mutual Insurance Company will then advise if they wish to have the appraisal hearing reconvened.

The insurer has attempted to initiate the remainder of the appraisal hearing, but the plaintiffs have claimed that they are not seeking payment under their insurance policy but are instead claiming damages through independent causes of action that are not subject to the appraisal remedy.


Quoting Bnei Akiva School v. Sovereign Insurance Co., 2016 ONSC 383 and 2343697 Ontario Inv. v. Aviva Insurance Company of Canada, 2019 ONSC 3106, Justice Myers stated that an appraisal will be required to value disagreements of the type set out in Statutory Condition 11 even where there are other issues between the parties in litigation.

There isn’t any case law that directly covers the issues in question, but Verlysdonk v. Premier Petrenas Construction Co. Ltd. et al., 1987 CanLII 4217 states that an appraisal to value insured loss does not prevent or preclude the insured from suing in tort the third part who caused the loss. Justice Myers stated that as long as the plaintiffs’ rights to bring a claim for any heads of damages not covered by the appraisal remain intact, the plaintiffs will not be prejudiced by having to resolve the valuation of the lost goods in a quick and affordable manner.

Justice Myers stated that the issue comes down to the interpretation of Statutory Condition 11. Statutory Condition 11 provides for an appraisal to be help when “there is disagreement concerning the value of the property insured, the property saved or the amount of loss.” The missing and damages goods from the plaintiffs’ home were property insured as they were property saved from the effects of the water loss. In another sense, damages caused to the plaintiffs’ goods by the insurer or its contractors as part of the process of determining and mitigating the plaintiffs’ insured loss is an amount of the loss.

Further, the initial appraisal umpire believed that this was a matter that could be dealt with under the process that had already commenced. The umpire stated that Wawanesa Mutual Insurance Company could unilaterally reconvene the appraisal hearing to process and deal with the losses. Therefore, Justice Myers concluded that the claim against Wawanesa Mutual Insurance Company for losses caused to the plaintiffs’ property removed from the house to allow the insured restoration to begin falls within the language of Statutory Condition 11.

Justice Myers granted the insurer’s motion and held that the claim was subject to appraisal under s.128 of the Insurance Act. Justice Myers stayed the action until completion of the appraisal and held that the Statutory Conditions controlled the result. The plaintiffs were ordered to pay the defendant its costs on a partial indemnity basis fixed at $3,000.00.

Hewitson Holdings Inc. v. Bur-Met Contracting and Concrete Walls, 2021 ONSC 3197

This property loss action was commenced under Ordinary Procedure in the Superior Court.

On the eve of trial, the plaintiff sought to amend the claim to have the action converted to Simplified Procedure. The defendants argued that the claim should have been brought under Simplified Procedure at the outset, and sought costs associated with having to defend the matter under Ordinary Procedures. The plaintiff argued that the cost consequences could only be considered at the end of trial. Justice Pierce granted the amendments sought by the plaintiff, but also ordered the plaintiff to pay the defendants a number of claimed costs. She accepted that the plaintiff ought to have known from the outset that the claim was going to total less than $100,000. She ordered payment of $7,500 in substantial indemnity costs for one of the defendants. The other defendant was awarded $8,500 in substantial indemnity costs plus $22,836.74 for an expert report it would not otherwise have obtained. The further consequences of Rule 76.13(3) were left to the trial judge.

Stapper v. Taylor, 2021 ONSC 243

The plaintiffs were involved in two accidents: one took place in Ontario, and the other took place in Georgia, USA. They commenced an Ontario action for damages in relation to both accidents. The Georgia defendants brought a motion to dismiss the action as against them on the basis that Ontario courts did not have jurisdiction over the Georgia loss. Justice Woollcombe considered the Van Breda factors, and held that there were insufficient factors connecting the Georgia matter to Ontario. The claim was dismissed as against the moving defendants. In obiter, Justice Woollcombe noted that Ontario would have been a convenient venue for the claim given that all treatment was received in Ontario, most witnesses were located in Ontario, and proceeding in Georgia would result in a multiplicity of claims.

Hammuri v. Hammuri, 2020 ONSC 6448

The plaintiff was in a motor vehicle accident while a passenger in his brother’s vehicle in Alberta. The plaintiff ordinarily resided in Ontario and his brother resided in Alberta. The plaintiff commenced an action for damages arising from personal injuries in Ontario. The defendant brother brought a motion to stay the action, arguing that Ontario had no jurisdiction over the dispute. Justice McArthur granted the defendant’s motion and stayed the action, holding that Ontario courts did not have jurisdiction. Alberta was the presumptive jurisdiction for this matter, and the plaintiff failed to prove that Alberta would be an inappropriate jurisdiction to litigate the action. Justice McArthur also rejected the plaintiff’s argument that the defendant had attorned to Ontario courts by filing a Notice of Intent to Defend, Jury Notice, and Statement of Defence. Aside from those filings, the defendant acted quickly to have the issue of jurisdiction addressed (it was also pled in the defence).

Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224

The plaintiffs were injured while working in Thailand as ESL teachers. They were involved in an MVA unrelated to the work, and one of them died from her injuries. The plaintiffs commenced an action in Ontario against the defendant, a BC company, which advertised the jobs to the plaintiffs. The plaintiffs claimed damages for breach of contract, breach of fiduciary duty, negligence, negligent misrepresentation, and other torts. The defendant brought a motion to dismiss or stay the action based on lack of jurisdiction and forum non conveniens. The motion judge applied the test in Club Resorts v. Van Breda, and dismissed the motion. The motion judge found that torts committed in Ontario gave rise to a presumptive connecting factor, which the defendant did not rebut. The Court of Appeal upheld the motion judge’s decision.