A decision from the New Brunswick Court of Appeal in favour of a client whose home was damaged by fire, has denied the insurer in the case the stay of proceedings it sought, and has declined to force the client to submit further proof of loss.
When the Saint-Arthur, New Brunswick client’s home was damaged by fire in May 2023, the client’s proof of claim was not accompanied by an inventory. The client in question, Denise Bernard, acknowledged that the proof of loss was deficient and later hired an adjuster to assist with her claim.
During the course of her attempt to provide a new, compliant proof of loss, the client requested various documents from her insurer, The Personal Insurance Company (The Personal), including a cause and origin report, all available photographs and estimates. The Personal refused to produce most of the documents requested.
“Bernard maintained she could not produce a complete, compliant proof of loss without the requested documents, resulting in an impasse,” the judgement in the case states. “Bernard’s council indicated that she would have no choice but to commence an action to obtain the requested documents.”
When Bernard commenced the action, she claimed the damage to her house and its contents. The Personal defended the action, saying it never denied the claim and that it has been prevented from fully investigating the loss.
In its written submissions, The Personal’s counsel cited a legal reference which notes that the determination of whether or not a proof of loss is as complete as reasonably possible, depends on the circumstances. “That is, it is case-specific,” they write.
“In response to the motion, Ms. Bernard swore an affidavit, dated January 19, 2025. In it she swears that she does not know the extent of the damage to her home and its contents because she was advised by the insurer’s contractor that the premises were unsafe and that she should not enter the home,” the judgment continues. “She does not know how the fire started; (and) the windows to her home have been barricaded by representatives of The Personal.” Her affidavit additionally states that she completed the proof of loss in 2023 to the best of her ability and that her own adjusters have advised of the need for the additional requirements requested from The Personal.
No obligation to disclose investigation files
Although the judge agreed with The Personal that there is no obligation, either under the province’s Insurance Act or under the policy in question to disclose its entire investigation file to the client as a matter of course, they also note that the motion judge made no such order.
“Contrary to the contention in the cross-appeal, the motion judge did not order The Personal to disclose the requested documents to Ms. Bernard. He simply refused to order her to submit a more detailed proof of loss because she needed additional documents from the insurer to do so,” they write.
Ultimately, in the case which examined the court’s jurisdiction and the differences between a notice of motion and a notice of application, Bernard’s appeal of the decision which required her to submit to an examination by the insurer under oath was allowed. The Personal’s cross-appeal challenging the decisions related to the proof of loss and the stay of proceedings were dismissed. The Personal was ordered to pay costs in the amount of $2,500.
“The evidence, in my view, was sufficient to permit the motion judge to conclude as he did, and his conclusion is owed deference, regardless of how this court might have assessed that same evidence. There is no palpable and overriding error. I would therefore dismiss the cross-appeal in respect of the proof of loss,” they write.
