2011 QCCQ 907, 2011 QCCQ 907

Dhaliwal c. Desjardins General Insurance 2011 QCCQ 907 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL LOCALITY OF GATINEAU Civil Division No. 550-32-017180-081 DATE: February 16, 2011 ______________________________________________________________________ PRESENT: THE HONOURABLE RICHARD LAFLAMME J.C.Q. ______________________________________________________________________ MAGHAR S. DHALIWAL […] Gatineau (Québec) […] Plaintiff v.

DESJARDINS GENERAL INSURANCE 6300, boulevard de la Rive Lévis (Québec) G6V 6P9 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is claiming $3021.25 from the defendant. That amount represents the difference between the amount received from the insurance company and the amount he feels he should have received further to the total loss of his vehicle. [ 2 ] The plaintiff owned a 2003 Buick Le Sabre. He bought it new for $37 454.

The preponderant evidence shows that the plaintiff had a traffic accident with his motor vehicle on November 22, 2007. At the time, he was insured with the defendant. He was slightly injured in the accident. His spouse sustained three rib fractures. Nevertheless, the insured was discharged from the hospital the same day. He filed his claim with the insurance company, which declared the vehicle to be a total loss. The plaintiff made several complaints about the problems he had with his insurer after the accident. The vehicle was moved twice.

He was able to retrieve his personal belongings in Vars, a suburb of Ottawa. He also reproached the company for abruptly ending the rental contract for the replacement vehicle. [ 3 ] The plaintiff's testimony showed that a first offer was presented to him by the defendant in the days following the accident. He was offered $13 742 as compensation. He refused on the pretext that the amount did not correspond to the value of his vehicle. On December 5, 2007, he was offered $12 126, which he refused. Finally, on December 6, he was offered $14 028.

The insurance adjuster allegedly told him that it was a take-it-or-leave-it offer. However, the adjuster informed the plaintiff that he could go to arbitration, as provided for in the insurance contract. He refused the offer of arbitration. On December 10, 2007, he accepted the settlement offer of $14 028.

The following appeared in the document: The payment shall constitute the full and final settlement of all damages related to the claim described above. [ 4 ] The plaintiff contended that he had no choice but to sign the document since he needed another vehicle quickly, all the more so given that the company had abruptly ended the rental contract for the replacement vehicle. Furthermore, he was traumatized by the accident he had had a few weeks earlier. [ 5 ]

Article 2490 of the Civil Code of Québec provides that “ the value of the insured property is determined in the ordinary manner unless a special valuation formula is contained in the policy”. In this case, the damage was evaluated by appraiser Mike Shouman. He established the amount of the loss at $11 800 plus taxes. That method is an ordinary means of valuation.

The contract expressly provided that “I n the event of disagreement as to the nature extent or amount of the loss or damage or as to the adequacy . . . shall be determined by arbitration before recovery can be made”. [ 6 ] The plaintiff refused arbitration. The indemnity was increased, however, when he protested against the proposed amount. The contract constitutes the law of the parties. It expressly provides that in the event of disagreement on the amount of the loss, the parties can go to arbitration before payment of the claim.

The evidence shows that the plaintiff refused arbitration and that the claim has been

fully settled by the defendant. Moreover, it cannot be concluded that the plaintiff did not freely consent to the settlement offer. Admittedly, he may have felt somewhat caught by the fact that he no longer had a vehicle, but his consent cannot be considered vitiated. He knew what he was agreeing to. He accepted because it was very convenient. Under the circumstances, the Court must give full effect to the final settlement offer, which he accepted voluntarily and in an enlightened manner. [ 7 ] Consequently, the plaintiff’s proceeding must fail.

Usually, the losing party must pay for the court costs of the opposite party. However, given the circumstances specific to the case, in particular, the fact that the plaintiff had to go to Vars in order to retrieve his personal belongings, each party will pay their court costs. THEREFORE, THE COURT: DISMISSES the plaintiff’s claim; THE WHOLE , each party paying their own costs. __________________________________ RICHARD LAFLAMME J.C.Q. Date of hearing: January 10, 2011