Performance Factory v. Atl. Ins., (2003) 227 Nfld. & P.E.I.R. 138 (NFTD)

• Judge: Easton, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 07, 2003
• Jurisdiction: Newfoundland and Labrador
• Citations: (2003), 227 Nfld. & P.E.I.R. 138 (NFTD);2003 NLSCTD 91

Performance Factory v. Atl. Ins. (2003), 227 Nfld. & P.E.I.R. 138 (NFTD);

    677 A.P.R. 138

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. JN.028

The Performance Factory Inc. (plaintiff) v. Atlantic Insurance Company Limited (respondent)

(2001 05 T0259; 2003 NLSCTD 91)

Indexed As: Performance Factory Inc. v. Atlantic Insurance Co.

Newfoundland and Labrador Supreme Court

Trial Division

Easton, J.

June 24, 2003.

Summary:

The plaintiff company owned and operated a business. Its principals were a husband and wife. The company's business was destroyed by fire on October 19/20, 2000. On October 25, 2000, the husband and his father were charged with arson. Their solicitors advised them to remain silent. The father was acquitted on July 4, 2002. The charges against the husband were withdrawn on September 10, 2002. The plaintiff issued a statement of claim on September 10, 2002, which was served on the defendant insurer on September 19, 2002. The defendant filed its defence on September 27, 2002 and an amended defence on October 9, 2002. On October 11, 2002, a "fire proof of loss" form, signed by the wife, was faxed to the defendant's solicitors. The defendant argued that: the plaintiff did not file a proof of loss as soon as practicable in accordance with the policy's statutory conditions and the relevant legislative provisions; it was prejudiced by the plaintiff's failure to file in a timely manner; the filing of a proof of loss was a condition precedent to the issuance of a statement of claim; and the plaintiff's action was a nullity.

The Newfoundland and Labrador Supreme Court, Trial Division, held that relief from forfeiture was available respecting delayed notices of claim, the failure to give notice of claim within the prescribed time period amounted to "imperfect compliance" rather than "non-compliance", the insurer was not prejudiced and the plaintiff was entitled to relief from forfeiture.

Insurance - Topic 3139

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - Claims - Notice and proof of loss - The plaintiff company owned and operated a business - Its principals were a husband and wife - The business was destroyed by fire and the husband and his father were charged with arson - Their solicitors advised them to remain silent - After the father was acquitted and the charges against the husband were withdrawn, the plaintiff sued the defendant insurer and, shortly thereafter, submitted a "fire proof of loss" form - The defendant argued that the statement of claim was a nullity because the plaintiff failed to file a proof of loss as soon as practicable in accordance with the policy's statutory conditions and the relevant legislative provisions - The Newfoundland and Labrador Supreme Court, Trial Division, held that relief from forfeiture was available respecting delayed notices of claim, the failure to give notice of claim within the prescribed time period amounted to "imperfect compliance" rather than "non-compliance", the insurer was not prejudiced and the plaintiff was entitled to relief from forfeiture.

Insurance - Topic 3140

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - Limitation period - [See Insurance - Topic 3139 ].

Cases Noticed:

Elance Steel Fabricating Co. v. Falk Bros. Industries Ltd. and Canadian Surety Co. (1989), 99 N.R. 228; 80 Sask.R. 22 (S.C.C.), folld. [para. 21].

Hogan v. Kolisnyk and Security Mutual Casualty Co., [1983] 3 W.W.R. 481; 43 A.R. 17 (Q.B.), refd to. [para. 26].

Thomas v. Hickey (1995), 22 O.R.(3d) 331 (Gen. Div.), refd to. [para. 28].

Minto Construction Ltd. v. Gerling Global General Insurance Co. (1978), 19 O.R.(2d) 617; 86 D.L.R.(3d) 147 (C.A.), refd to. [para. 29].

Canadian Equipment Sales & Service Co. v. Continental Insurance Co. (1975), 9 O.R.(2d) 7; 59 D.L.R.(3d) 333 (C.A.), refd to. [para. 31].

Morrone v. CAA Insurance Co. (Ontario), [1995] O.J. No. 3024 (Gen. Div.), refd to. [para. 32].

Whelan v. Beothic General Insurance Co. (1992), 103 Nfld. & P.E.I.R. 230; 326 A.P.R. 230; 16 C.C.L.I.(2d) 277 (Nfld. T.D.), refd to. [para. 36].

Permaform Plastics Ltd. et al. v. London & Midland General Insurance Co. et al. (1996), 110 Man.R.(2d) 260; 118 W.A.C. 260 (C.A.), refd to. [para. 37].

Quon v. British & European Insurance Co., [1928] 3 W.W.R. 545; 23 Sask. L.R. 180; [1929] 2 D.L.R. 609 (K.B.), appld. [para. 41].

Gautron v. Wawanesa Mutual Insurance Company, [1995] B.C.J. No. 257 (S.C.), refd to. [para. 41].

Campbell v. Waterloo Mutual Insurance Co., [1983] O.J. No. 910, dist. [para. 48].

Statutes Noticed:

Insurance Contracts Act, R.S.N. 1990, c. I-12, sect. 10 [para. 19].

Counsel:

James D. Hughes, for the plaintiff;

John Dawson, for the defendant.

This application was heard on May 7, 2003, by Easton, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on June 24, 2003.