Winnipeg Regional Health Authority et al. v. Temple Insurance Co., (2011) 264 Man.R.(2d) 150 (QB)

• Judge: McCawley, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 21, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 264 Man.R.(2d) 150 (QB);2011 MBQB 92

Health Authority v. Temple Ins. (2011), 264 Man.R.(2d) 150 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. MY.018

Winnipeg Regional Health Authority, PCL Constructors Canada Inc. and Derksen Plumbing & Heating (1984) Ltd. (plaintiffs) v. Temple Insurance Company (defendant)

(CI 07-01-54379; 2011 MBQB 92)

Indexed As: Winnipeg Regional Health Authority et al. v. Temple Insurance Co.

Manitoba Court of Queen's Bench

Winnipeg Centre

McCawley, J.

April 21, 2011.

Summary:

The plaintiffs commenced an action against the defendant for coverage and indemnity under a builders' risk property insurance policy issued by the defendant. Liability and damages were both at issue. The plaintiffs brought a motion requiring the defendant to nominate an appraiser and proceed with arbitration pursuant to s. 23 of the policy and s. 121 of the Insurance Act.

The Manitoba Court of Queen's Bench granted the motion. The court ordered that the defendant nominate an appraiser within two weeks and proceed to participate in the appraisal process, failing which, the court would make the necessary appointment.

Insurance - Topic 3424

Payment of insurance proceeds - Appraisal or arbitration - Appointment of appraiser - The plaintiffs brought a motion requiring the defendant to nominate an appraiser pursuant to a builders' risk property insurance policy issued by the defendant - The plaintiffs had waited over 6.5 years after the loss date before invoking the appraisal process - The defendant argued that the right of an insured to elect under the arbitration clause or statutory condition to have a quantum of loss determined by an arbitrator did not exist in perpetuity and had to be exercised within a reasonable time of the loss date - The Manitoba Court of Queen's Bench agreed with that position and recognized that "there may well be situations where the court should exercise its discretion against appointing an appraiser or umpire" - However, the court did not find such circumstances in the case at bar, and granted the motion - See paragraphs 16 and 17.

Insurance - Topic 3424

Payment of insurance proceeds - Appraisal or arbitration - Appointment of appraiser - The plaintiffs brought a motion requiring the defendant to nominate an appraiser and proceed with arbitration pursuant to a builders' risk property insurance policy issued by the defendant - The policy provided for an appraisal, at the insured's election, in the event the parties were unable to agree on the amount of the loss - The defendant was opposed on the grounds that: the issue also included a denial of coverage; the plaintiffs waited over 6.5 years after the loss date before invoking the appraisal process; and a proper valuation was not possible without the involvement of the trier of fact - The Manitoba Court of Queen's Bench granted the motion - The authorities supported an appraisal process even where coverage was at issue - The defendant had not been prejudiced because of the passage of time, and the plaintiffs were not estopped by their conduct - The litigation was not at a stage where it was too late to proceed under the policy - It was also preferable to have the matter dealt with by appraisers with some expertise.

Cases Noticed:

Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Co. et al. (1990), 85 Sask.R. 54; 71 D.L.R.(4th) 681 (C.A.), refd to. [para. 8].

Trentmar Holdings Ltd. v. St. Paul Fire and Marine Insurance Co. (1984), 46 O.R.(2d) 222 (H.C.), refd to. [para. 8].

O'Brien et al. v. Non-Marine Underwriters, Lloyd's of London et al. (1991), 128 A.R. 165 (Q.B.), refd to. [para. 8].

Ice Pork Genetics Inc. v. Lombard Canada Ltd. et al. (2010), 252 Man.R.(2d) 82; 2010 MBQB 77, consd. [para. 9].

Arlington Investments Ltd. v. Commonwealth Insurance Co. (1985), 16 D.L.R.(4th) 465 (B.C.C.A.), refd to. [para. 10].

854965 Ontario Ltd. v. Dominion of Canada General Insurance Co., [2003] O.T.C. 201; 64 O.R.(3d) 234 (Sup. Ct.), refd to. [para. 14].

Statutes Noticed:

Insurance Act, R.S.M. 1987, c. I-40; C.C.S.M., c. I-40, sect. 121(1) [para. 6].

Counsel:

Dean G. Giles, for the plaintiffs;

Tim Ryan, for the defendant.

This motion was heard before McCawley, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on April 21, 2011.