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Courts Have Little Leeway When Statutory Conditions Are Clear and Unambiguous

Kutlarovski v Aviva Insurance Company, 2021 ONSC 6850.

Reading Time: 4 minutes

Weston McArthur (Student-at-Law)

Lambrini and Zoran Kutlarovski (hereinafter the “Plaintiffs”) owned a cottage which was badly damaged in a windstorm. They filed a claim with their insurer, the Aviva Insurance Company (hereinafter the “Defendant”).

A dispute arose between the parties as to the valuation of the claim. Both sides undertook their own assessments; upon completion, it was clear that the parties still disagreed. The Defendant sought an appraisal to determine the valuation of the claim, but the Plaintiffs refused.

The Defendant brought a motion seeking orders to appoint an appraiser and to require the Plaintiffs to participate in the appraisal. The Defendant submitted that this was required pursuant to Section 148, Statutory Condition 11 of the Insurance Act.

Statutory Condition 11 read as follows:

“In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under the Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.”

Justice Conlon stated that the issue before the Court was not whether to grant the requested orders, but rather “Does this Court, on these facts and on the wording of Statutory Condition 11 […] have any choice but to grant the relief sought by Aviva?” [para 8, my emphasis].

The Plaintiffs were of the position that an appraisal was costly and unnecessary given that the disputed items between the parties were few, and that some of the items were related to the scope of work, which likely could not be addressed by an appraiser. While he agreed with both points, Justice Conlon found them to be irrelevant given the clear and unambiguous wording of Statutory Condition 11.

Consequently, the Court granted the Defendant’s motion. “[T]hat is what the policy says, and the policy governs,” Justice Conlon stated, “I have been given no jurisprudential or statutory authority to determine otherwise” [para 17].

Link: https://www.canlii.org/en/on/onsc/doc/2021/2021onsc6850/2021onsc6850.html?searchUrlHash=AAAAAQALImluc3VyYW5jZSIAAAAAAQ&resultIndex=8

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