Roy v. TD Home and Auto Insurance Co., (2016) 324 Man.R.(2d) 255 (QB)

JudgeSimonsen, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateJanuary 08, 2016
JurisdictionManitoba
Citations(2016), 324 Man.R.(2d) 255 (QB);2016 MBQB 9

Roy v. TD Home & Auto Ins. (2016), 324 Man.R.(2d) 255 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.029

Clara Roy and Barry Roy (plaintiffs) v. TD Home and Auto Insurance Company (defendant)

(CI 11-01-74524; 2016 MBQB 9)

Indexed As: Roy v. TD Home and Auto Insurance Co.

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

January 8, 2016.

Summary:

The plaintiffs sued for payment under their policy of insurance for losses resulting from a fire at their residence on May 13, 2010. The defendant denied liability on the basis that the plaintiffs deliberately set the fire. The defendant also counterclaimed for amounts already paid to or on behalf of the plaintiffs under the policy pursuant to a non-waiver agreement and for damages sustained as a result of the alleged arson.

The Manitoba Court of Queen's Bench allowed the plaintiffs' action for the agreed upon amount of $398,723.63, but denied their claims for punitive and mental distress damages. The court dismissed the defendant's counterclaim.

Damages - Topic 1305.1

Exemplary or punitive damages - Insurance claim denial - [See Insurance - Topic 6046 ].

Damages - Topic 1532

General damages - Elements of general damages - Mental distress or emotional upset - [See Insurance - Topic 6046 ].

Evidence - Topic 7000.1

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Conflict of interest - The Roys (husband and wife) sued for payment under their policy of insurance for losses resulting from a fire at their residence on May 13, 2010 - The defendant denied liability on the basis that the Roys had deliberately set the fire - The Manitoba Court of Queen's Bench allowed the Roys' action for the agreed upon amount of $398,723.63, but denied their claims for punitive and mental distress damages - The Roys' claim for punitive damages was based on, inter alia, the lack of independence of Matei, the defendant's expert - The essential complaint about Matei, and the basis for an objection to the admissibility of his evidence at trial, was that he lacked independence because Crawford Canada, the defendant's adjuster's employer, owned 67% of Matei's employer, Origin and Cause, and the two companies shared five directors - The court found no basis for a finding of lack of independence - The undisputed evidence was that Crawford Canada and Origin and Cause operated entirely independently and did not have an exclusive relationship, nor did Crawford Canada have an exclusive relationship with the defendant - Further, Matei was clear that no one else had any input in the preparation of his reports - See paragraph 76.

Insurance - Topic 6046

Fire insurance - Defences - Deliberate act by insured - General - The Roys (husband and wife) sued for payment under their policy of insurance for losses resulting from a fire at their residence on May 13, 2010 - The defendant denied liability on the basis that the Roys had deliberately set the fire - The Manitoba Court of Queen's Bench allowed the Roys' action for the agreed upon amount of $398,723.63 - The court stated that "while the very limited opportunity for entry into the house through the window is cause for careful scrutiny - and I recognize that it must be considered in the assessment of the Roys' credibility - it is not the only factor. I generally found them to be frank and genuine. Their son was in the house at the time. The evidence of motive is tenuous at best. Although I wonder why someone would enter the house and set three separate fires in the basement when the Roys were unaware of anyone attempting to harm them, and when there was no evidence of a robbery, vandalism or any disturbance on the counter under the window, the evidence also raises many unanswered questions which call into question the Roys' alleged involvement. In all, it is not clear what happened here. When I consider all of the evidence, I am not satisfied that the defendant has met its burden of establishing, on a balance of probabilities, that one or more of the plaintiffs started the fire or directed someone else to do so." - The court denied the Roys' claims for punitive damages (defendant's conduct not "malicious, oppressive or high-handed") and mental distress damages (no medical evidence as to psychological or emotional problems, nor did the Roys explain in any detail how the denial had impacted their lives).

Insurance - Topic 6047

Fire insurance - Defences - Deliberate act by insured - Standard of proof - [See Insurance - Topic 6046 ].

Insurance - Topic 6055

Fire insurance - Defences - Burden of proof - [See Insurance - Topic 6046 ].

Cases Noticed:

Rizzo et al. v. Hanover Insurance Co. (1993), 64 O.A.C. 230; 14 O.R.(3d) 98 (C.A.), refd to. [para. 4].

Lancer Enterprises Ltd. v. Saskatchewan Government Insurance (2011), 366 Sask.R. 267; 506 W.A.C. 267; 2011 SKCA 28, refd to. [para. 4].

Richardson v. State Farm Mutual Automobile Insurance Co. et al. (2012), 393 N.B.R.(2d) 95; 1017 A.P.R. 95; 354 D.L.R.(4th) 355; 2012 NBCA 75, refd to. [para. 4].

R. v. Imrich, [1978] 1 S.C.R. 622; 15 N.R. 227; 34 C.C.C.(2d) 143, refd to. [para. 5].

Savoie v. General Accident Assurance Co. (1999), 210 N.B.R.(2d) 74; 536 A.P.R. 74 (C.A.), refd to. [para. 5].

R.C. v. McDougall - see F.H. v. McDougall.

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 6].

T.D. v. Director of Child and Family Services (2015), 323 Man.R.(2d) 29; 657 W.A.C. 29; 2015 MBCA 74, refd to. [para. 6].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 75].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 80].

Counsel:

Gene E. Zazelenchuk, for the plaintiffs;

David I. Marr and Harmanjit S. Mavi, for the defendant.

This case was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 8, 2016.

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1 practice notes
  • Fire Losses And Investigations
    • Canada
    • Mondaq Canada
    • 2 October 2017
    ...inquiry is whether on the basis of all the evidence, arson has been proven on a civil standard" (Roy v TD Home and Auto Insurance Co., 2016 MBQB 9). In the past, courts have required a higher standard of civil proof in cases involving allegations of moral misconduct or dire consequences. Ho......
1 firm's commentaries
  • Fire Losses And Investigations
    • Canada
    • Mondaq Canada
    • 2 October 2017
    ...inquiry is whether on the basis of all the evidence, arson has been proven on a civil standard" (Roy v TD Home and Auto Insurance Co., 2016 MBQB 9). In the past, courts have required a higher standard of civil proof in cases involving allegations of moral misconduct or dire consequences. Ho......

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