Bernard v. The Personal Insurance Company, 2026 NBCA 94 (CanLII)
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By: Fiona Costello
Denise Bernard’s home was damaged by fire in May 2023. She was insured under a homeowner’s policy issued by The Personal Insurance Company (“The Personal”). Section 127 of New Brunswick’s Insurance Act requires every fire insurance policy to contain certain Statutory Conditions. Statutory Condition 6 requires an insured to deliver, “as soon as practicable,” a proof of loss containing specified information, including “a complete inventory of the destroyed and damaged property” and particulars of the amount claimed.
Ms. Bernard submitted a proof of loss claiming $425,000 for the home and $175,000 for its contents, but it did not include the required inventory. The Personal retained an adjuster who valued the contents at $42,366.46, approximately $130,000 less than Ms. Bernard had claimed. Ms. Bernard then retained her own adjuster to assist in preparing a compliant proof of loss.
Her adjuster requested documents from The Personal, including its cause and origin report, photographs, and repair or reconstruction estimates. The Personal provided some photographs but declined to provide most of the requested documents. Ms. Bernard maintained that she could not complete the proof of loss without them.
A further dispute arose when The Personal relied on a condition in the insurance policy to require Ms. Bernard and her adult son to attend examinations under oath. Ms. Bernard refused, relying on s. 127(1) of the Insurance Act, which provides that “no variation or omission of or addition to any statutory condition shall be binding on the insured.”
With the parties at an impasse, the Personal brought both issues before the Court by way of motion. The motion judge declined to order a further proof of loss, finding that Ms. Bernard required additional documents to complete it, but found that the examination-under-oath requirement did not contravene the Insurance Act and was therefore enforceable. Ms. Bernard appealed the latter finding, while The Personal cross-appealed the proof-of-loss decision.
On appeal, the Court found that the motion judge did not have jurisdiction to decide whether the examination-under-oath requirement was enforceable. The Court explained that Rule 16.04(e), relied on by The Personal, permits an application where the parties’ rights depend on the interpretation of a contract. Although the examination-under-oath issue fell within that Rule, The Personal had brought a motion, not an application. The Rules did not permit the motion judge to treat the motion as an application. The Court therefore set aside his decision without determining whether the requirement violated the Insurance Act.
The Court then considered Rule 23.01, which allows a question of law to be decided by motion before trial where doing so may dispose of the action, shorten the trial, or substantially reduce costs. However, there was no basis to decide the policy issue under that Rule as The Personal was already entitled to examine Ms. Bernard under oath through discovery under Rule 32.02(1), and there was no evidence that deciding the issue would otherwise achieve any of the purposes set out in Rule 23.01.
The Court of Appeal also upheld the motion judge’s refusal to order Ms. Bernard to provide a further proof of loss. Ms. Bernard had been told not to enter the home because it was unsafe and did not know the full extent of the damage. Her adjusters advised that the documents requested from The Personal were necessary to complete the proof of loss. In those circumstances, the Court agreed that Ms. Bernard had done everything reasonably expected of her and found no basis to interfere with the motion judge’s decision.
The decision leaves unresolved whether an insurer may require an examination under oath in addition to the statutory conditions prescribed by the Insurance Act. However, the Court provides useful guidance on the proper procedure for determining such questions and the circumstances in which a court may decline to compel an insured to provide a further proof of loss.
