2712270 Manitoba Ltd. et al. v. Grain Insurance and Guarantee Co. et al., 2010 MBQB 233

• Judge: Kaufman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 22, 2010
• Jurisdiction: Manitoba
• Citations: 2010 MBQB 233;(2010), 257 Man.R.(2d) 271 (QB)

2712270 Man. v. Grain Ins. (2010), 257 Man.R.(2d) 271 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. NO.011

2712270 Manitoba Ltd., carrying on business as Pizzey's Milling and Baking Company and 2712270 Manitoba Ltd., carrying on business as Pizzey's Milling (plaintiffs) v. Grain Insurance and Guarantee Company, The Wawanesa Mutual Insurance Company and Red River Valley Mutual Insurance Company (defendants)

(CI 05-01-40895; 2010 MBQB 233)

Indexed As: 2712270 Manitoba Ltd. et al. v. Grain Insurance and Guarantee Co. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Kaufman, J.

October 22, 2010.

Summary:

A fire occurred at the plaintiffs' business premises. The defendants, together, insured the plaintiffs. All claims had been settled except the claim for loss sustained as a result of business interruption. The defendants denied the quantum of loss and invoked the appraisal provisions under s. 121 of the Insurance Act. The appraisers had not been able to agree on an umpire. The plaintiffs moved to have their nominee, experienced as an insurance litigator and a long-term judge, as the umpire. The defendants proposed chartered accountants. The plaintiffs asserted the issues to be resolved were merely factual. The defendants argued that the factual issues were but a precursor to the accounting/appraisal issues.

The Manitoba Court of Queen's Bench selected a chartered accountant as the umpire.

Insurance - Topic 3424

Payment of insurance proceeds - Appraisal or arbitration - Appointment of appraiser (incl. umpire) - The plaintiffs moved to have their nominee as the umpire to determine the value of their business interruption loss - They argued that the accounting matters would easily follow from a resolution of the factual dispute, and that their nominee's experience as an insurance litigator and a judge would be the appropriate skill set - The defendant insurers disagreed that the accounting analysis would automatically follow once the factual issues were resolved, and proposed chartered accountants, including Paterson - The Manitoba Court of Queen's Bench selected Paterson as the umpire - "[T]he expertise should be sufficient to perform the task ... Furthermore, if the decision to be made is to choose between two sets of skills, the one that is more likely to achieve the object of quick settlement should be selected" - The plaintiff did not provide details of their nominee's familiarity with business interruption loss and of the extent of his experience - Paterson's expertise provided a better assurance that accounting matters that might arise could be dealt with expeditiously - See paragraphs 11 to 14.

Insurance - Topic 5856

Fire insurance - The loss - Appraisal of - [See Insurance - Topic 3424 ].

Cases Noticed:

Matti v. Wawanesa Mutual Insurance Co., [2009] A.R. Uned. 523; [2010] A.W.L.D. 128; 2009 ABQB 451, consd. [para. 9].

Ice Pork Genetics Inc. v. Lombard Canada Ltd. et al. (2010), 252 Man.R.(2d) 82; 2010 CarswellMan 111; 2010 MBQB 77, consd. [para. 10].

Statutes Noticed:

Insurance Act, R.S.M. 1987, c. I-40; C.C.S.M., c. I-40, sect. 121 [para. 7].

Counsel:

Dave Hill, for the plaintiffs;

David M. Skwark, for the defendants.

This motion was heard before Kaufman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment, dated October 22, 2010.