265 Commercial Street Ltd. v. ING Insurance Co. of Canada et al., 2010 NSSC 14

• Judge: Edwards, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 14, 2009
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 14;(2010), 286 N.S.R.(2d) 316 (SC)

265 Com. Street v. ING Ins. (2010), 286 N.S.R.(2d) 316 (SC);

    909 A.P.R. 316

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JA.027

265 Commercial Street Ltd. (plaintiff) v. ING Insurance Company of Canada (defendant) and The Children's Aid Society of Cape Breton - Victoria and Paul Macdonald (third parties)

(SH No. 205933; 2010 NSSC 14)

Indexed As: 265 Commercial Street Ltd. v. ING Insurance Co. of Canada et al.

Nova Scotia Supreme Court

Edwards, J.

January 15, 2010.

Summary:

A fire damaged property owned by the plaintiff. The plaintiff filed a Proof of Loss with the defendant insurer. The defendant rejected the claim. The plaintiff commenced an action. The parties disputed the extent of the damage. Both parties appointed appraisers. The defendant also raised the issue of an umpire under the policy provisions. The defendants proposed Dyke, regional manager of Special Property Evaluation Control Services (SPECS). The plaintiff proposed MacRae, a contractor. The plaintiff moved for the appointment of an umpire under s. 32 of the Insurance Act.

The Nova Scotia Supreme Court held that a determination of the matters in dispute between the parties required the expertise of an appraiser. The umpire nominated by the plaintiff was a contractor and lacked the necessary familiarity and experience with the appraisal process. The defendant's nominee, Dyke of SPECS, was a duly qualified appraiser and was competent to act as umpire. The court granted an order confirming Dyke as umpire pursuant to s. 32(5)(c) of the Insurance Act.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See Insurance - Topic 3423 ].

Insurance - Topic 3423

Payment of insurance proceeds - Appraisal or arbitration - Appraisal or umpire - When required - A fire damaged property owned by the plaintiff - The plaintiff filed a Proof of Loss with the defendant insurer - The defendant rejected the claim - The plaintiff commenced an action - The parties disputed the extent of the damage - Both parties appointed appraisers - The defendant also raised the issue of an umpire under the policy provisions - The defendants proposed Dyke, regional manager of Special Property Evaluation Control Services (SPECS) - The plaintiff proposed MacRae, a contractor - The plaintiff argued that SPECS was an unsuitable umpire because it was not disinterested, as required by the Insurance Act - The basis of the allegation was that SPECS had a history of providing services for the defendant - This showed a reasonable apprehension of bias - The plaintiff moved for the appointment of an umpire under s. 32 of the Insurance Act - The Nova Scotia Supreme Court held that a determination of the matters in dispute between the parties required the expertise of an appraiser - The umpire nominated by the plaintiff was a contractor and lacked the necessary familiarity and experience with the appraisal process - The defendant's nominee, Dyke of SPECS, was a duly qualified appraiser and was competent to act as umpire - The concern raised by the plaintiff regarding the prior retention of SPECS by the defendant was insufficient to lead an informed person to conclude that Dyke would not be disinterested or impartial - The court granted an order confirming Dyke as umpire pursuant to s. 32(5)(c) of the Act.

Cases Noticed:

Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Co. et al. (1986), 56 Sask.R. 217 (Q.B.), revd. in part (1990), 85 Sask.R. 54; 71 D.L.R.(4th) 681 (C.A.), refd to. [para. 23].

Matti v. Wawanesa Mutual Insurance Co., [2009] A.R. Uned. 523 (Q.B.), consd. [para. 28].

McPeak v. Herald Insurance Co. et al. (1991), 115 A.R. 83 (Q.B.), refd to. [para. 44].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 45].

Brink (J.A.) Investments Ltd. v. BCR Properties Ltd., [2009] B.C.T.C. Uned. 1369 (S.C.), refd to. [para. 50].

Statutes Noticed:

Insurance Act, R.S.N.S. 1989, c. 231, sect. 32 [para. 22].

Counsel:

Andrew Gray, for the plaintiff;

Lee Anne MacLeod Archer, for the defendant.

This motion was heard on December 14, 2009, at Sydney, Nova Scotia, by Edwards, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 15, 2010.