2017 ONSC 801, 2017 ONSC 801

CITATION : Gebara v Economical Insurance Group , 2017 ONSC 801 COURT FILE NO.: 13-59485 DATE: 2017/02/01 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Fady Gebara, Plaintiff AND The Economical Insurance Group, Defendant BEFORE: Madam Justice A. Doyle COUNSEL: J.L. Lee Mullowney Counsel for the Plaintiff Katherine M. Nelson, Counsel for the Defendant HEARD: January 25, 2017 ENDORSEMENT [ 1 ] The Plaintiff moves for

summary judgment in the amount of $66,283.54 for losses sustained as a result of a fire on December 10, 2011. The Plaintiff claims the loss of items and additional living expenses pursuant to an insurance policy with the Defendant insurer. [ 2 ] The Plaintiff submits that the Court has a full evidentiary record to determine his claim. He has fulfilled his obligations under the policy by notifying the insurer, providing the proof of items lost in the amount of $58,658 (plus HST), submitting to an examination by a representative of the Defendant and providing an inventory of all contents destroyed in the fire.

He abandons his claim of bad faith as against the Defendant. [ 3 ] The Defendant opposes the motion for the following reasons:

i) there is not a proper evidentiary record for the Court to grant

summary judgment; ii) there are genuine and material issues in dispute requiring trial; and iii) the Court will be required to make credibility findings and cannot do so based on the evidentiary record before it. [ 4 ] In the alternative, the Defendant requests a motion for

summary judgment dismissing the claim. [ 5 ] For reasons set out below, the Plaintiff’s motion is dismissed. [ 6 ] The Court grants partial

summary judgment to the Defendant by dismissing the Plaintiff’s claim for additional living expenses.

Background [ 7 ] The Plaintiff rented a unit at 2517 Scrivens Drive, Ottawa which was part of a three condominium property, while the other units were occupied by the owner and the owner’s mother. [ 8 ] The Plaintiff contracted with the Defendant for a Renter’s Insurance policy called a “Gold Package” which provided for additional living expenses (any necessary increase in living expenses, including moving expenses) and replacement cost coverage of contents. [ 9 ] On December 11, 2011, a fire broke out demolishing the building housing his apartment.

On December 13, 2011, he notified the Defendant and on March 12, 2012, he provided the Defendant with a proof of loss setting out the details of his loss. [ 10 ] On December 15, 2011, he submitted to a one hour examination with the Defendant’s representative. [ 11 ] In its letter dated December 22, 2011, the Defendant provided the Plaintiff with a $5,000 advance and advised the Plaintiff that the Defendant was investigating the fire as it suspected it may have been the result of arson.

Upon completion of the Fire Marshall’s investigation, it was determined that the cause was unknown. [ 12 ] In its letter dated April 17, 2012, the Defendant requested that the Plaintiff attend a further examination under oath and produce documents, including his apartment lease, the lease for the moving van; bank records from September to December 2011; cell phone records; earnings received; cash withdrawal records to buy furniture; credit slips; photos of items taken before the policy was taken out; and a list of furniture when the policy was taken out.

[ 13 ] The Plaintiff did not provide the above documents nor did he agree to re-attend an examination. The parties disagree as to whether the insurance policy required the Defendant to re-attend an examination. The Plaintiff believes that the Defendant was being heavy-handed as their demands were disproportionate to what was being claimed.

The Defendant commenced a claim to compel him to re-attend an examination but withdrew its claim upon the Plaintiff bringing his own action for recovery of funds due to the loss of his items and living expenses. [ 14 ] In his letter to the Defendant’s counsel dated November 27, 2012 counsel for the Plaintiff demanded an advance of $25,000 to replace contents and for additional living expenses or they would bring a claim against them. The claim was issued in 2013. [ 15 ] Discoveries took place on August 14, 2014.

Pursuant to the terms of the policy, the parties proceeded to the appraisal process and the Umpire’s award provided for the following: $2,000 value of cash, $42,000 replacement value of items and $27,000 for actual cash value of items. Plaintiff’s position [ 16 ] The Plaintiff submits that as a party of modest means, this matter should be determined as a matter of proportionality, by way of

summary judgment. [ 17 ] He contends that he has proven the existence of items and their value. The evidence indicates that the debris from the fire site was excavated and removed. The Defendant was responsible for the investigation to determine if his items reported lost were there. [ 18 ] He fully cooperated with the Defendant by being examined and authorized the Defendant to speak directly to his employer and Ikea where he purchased the items.

He has completely complied with the requirements under the insurance policy. [ 19 ] He indicates that he had provided the available receipts in his possession and that items were purchased in cash. He has provided proof of the use of a van for moving. Defendant’s position [ 20 ] The Plaintiff cannot obtain a

summary judgment based on the evidentiary record before the Court as there are issues of credibility, along with material and genuine issues requiring a trial. The Plaintiff has not proved the existence of the items in the proof of loss nor that they were lost in the fire. [ 21 ] In

summary, the Defendant indicates that there are a number of inconsistences with respect to the evidence before the Court including when he moved into the premises and the value of the items lost.

The Defendant submits there should be an adverse inference against the Plaintiff for failing to file corroborating evidence. [ 22 ] In the event that the Plaintiff has proven the existence of the items and that they were lost in the fire, he cannot obtain replacement value as he did not, as required by the policy, prove an intention to replace them right after the fire nor that he would have done so. [ 23 ] The Court cannot determine value as the Umpire’s award did not specify the value for each item claimed. [ 24 ] In addition, the Plaintiff has not established that he has incurred additional living expenses as he admitted moving back with his parents following the fire and did not incur expenses except for some payment on cable bills. [ 25 ] Further, the Defendant submits that this is not a case for the Court to use the expanded fact-finding powers to call oral evidence or ask for further written materials as this would not lead to a fair and just result.

The Law [ 26 ] Rule 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules” ) permits the Plaintiff to bring this motion for

summary judgment once pleadings have been exchanged. Affidavit material filed can include information and belief but the Court can draw an adverse inference from a party’s failure to provide evidence with personal knowledge of contested facts. [ 27 ] The responding party must show in the materials that there is a genuine issue requiring a trial. [ 28 ] Rule 20.04 provides that:

(2) The Court shall grant

summary judgment if, (

a) the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by a

summary judgment and the Court is satisfied that it is appropriate to grant

summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).

(2.1) In determining under clause (2) (

a) whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. weighing the evidence;

2. evaluating the credibility of a deponent; and 3. drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by oneor more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).

(3) Where the Court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the Court mayorder a trial of that issue or grant judgment with a reference to determine the amount. R.R.O. 1990, Reg. 1 s 94, r. 20.04 (3); O. Reg.438/08, s. 13 (4). [29] If

summary judgment is refused or granted in part, Rule 20.05 grants the Court powers to outline steps and procedure and settimelines for the action to ensure that the matter proceed to trial expeditiously. [30] In Hryniak v. Mauldin 2014 SCC 7 , [2014] 1 S.C.R. 87, the Supreme Court established principles with respect tomotions for

summary judgment to ensure that cases are dealt with fairly, justly and without the expense and delay of trials if a fairdetermination can be made. The Court held that a

summary judgment can be rendered when the process: (1) allows the Judge to make the necessary findings of fact; (2) allows the Judge to apply the law to the facts; and (3) is proportionate, more expeditious and less expensive means to achieve a just result. Decision Plaintiff’s motion for

summary judgment [31] The Plaintiff has not satisfied its legal and evidentiary burden to satisfy the Court that he is entitled to

summary judgment onhis claim. [32] The Court dismisses the Plaintiff’s motion for the following reasons: − the Court cannot make findings of facts based on the evidentiary record before it; and − there are serious credibility issues which will require a trial. [33] The Court cannot make findings of fact on the material issues of dispute as there is contradictory evidence regarding theexistence of the items and whether they were lost in the fire. In addition, the Court cannot, on the evidence before it, quantify the loss ofthe specific items.

Therefore, there are genuine issues requiring a trial. [34] In his submissions, the Plaintiff admitted that he is a “little thin on evidence to support the purchase of these items” and thatthe Defendant has reason to be skeptical. However, the Defendant investigated this loss “with blinders” as they originally believed thecause to be arson. The Plaintiff submits that the Defendant should have completed a more thorough investigation of the fire site toretrieve the debris to determine the loss of his items. The Court disagrees. [35] As stated in Sagl v.

Cosburn, Griffiths and Brandham Insurance Brokers Ltd., 2009 ONCA 388 , [2009] O.J. No.1879, the Ontario Court of Appeal stated, that the onus to recover for loss is on the insured, on a balance of probabilities, that the lossoccurred and the amount of the loss. “The onus does not shift to the insurer merely because the insurer raises the defence of fraud”.(para. 15.) See also Shakur v. Pilot Insurance Co. (1990) (ON CA), 74 O.R. (2d) 673 (Ont. C.A.). At para. 76, theCourt stated: It is common ground that in the preparation of the proof of loss, an insured owes a duty to the insurer of honesty and accuracy.

Indeed,the policy in this case, reproduced above at para. 30, expressly states that the policy is void if the insured “intentionally concealed ormisrepresented any material fact relating to this policy before or after a loss.” Once fraud is established, no matter the amount, the entireclaim under the proof of loss is forfeited: Britton v. Royal Insurance (1866), 4 F&F 905 at p. 909; Alavie v. Chubb Insurance Co. ofCanada (2005), (ON CA), 195 O.A.C. 7 (C.A.), at para. 5; Dimario v. Royal Insurance Canada, (1987) 26 O.A.C.370 (Ont. Div. Ct.), at para. 7.

This rule follows from the general principle that a contract of insurance is one of utmost good faith: seeInsurance Law in Canada at p. 9-16. [36] In any event, as set out below, the Defendant did contract various individuals to investigate the remnants of the fire. [37] The Plaintiff argues that his financial records were also destroyed in the fire thereby making it impossible to produce thereceipts to the Defendant.

This must be measured against his failure to provide other evidence such as financial records and affidavitsfrom family, friends, owner or neighbours as to the items that he owned prior to the fire. [38] As stated in Sagl v. Cosburn, Griffiths & Broadham Insurance Brokers Ltd. the Court must address the challenges in theinsured’s credibility when his credibility forms the foundation for the proof of loss and whether the insured has fulfilled his obligation toprove his loss.

[ 39 ] The Plaintiff has not proven the existence of the items lost and, as such, the Court cannot make findings of fact on this issue as there is contradictory evidence on their existence. A

summary of the evidence is set out below: − there was only one receipt payable to George and Susan Gebara for a buffet from Malaket (not identified on the proof of loss): − he maintains having paid cash for the items but does not produce any financial records to prove the same; − he states records were lost in the fire; − the Plaintiff authorized the Defendant to speak to his employer and IKEA where he bought some of the items but did not agree to provide the other documents requested; − photos of the Plaintiff’s apartment were allegedly taken by Daniel Buch, on behalf of the Defendant, on September 30, 2011 and showed a sparsely furnished place.

These were taken after a theft at the property . The Plaintiff’s original evidence is that he was living in the apartment on September 30, 2011(during the December 15, 2011 interview with the Defendant’s representative and in discoveries, he indicated having moved in earlier) but his recent affidavit indicates he may have moved in October 1 or 2 nd , 2011 . In addition the photos provided were in PDF format and were not provided to counsel in their native format.

Therefore the Plaintiff cannot determine the precise date they were taken and hence the photos cannot be authenticated; − the Plaintiff also questions how they would have gained entry to his a partment without his consent; − the Plaintiff filed a letter from an individual indicating she lent the Plaintiff a cube van for a weekend in September 2011; − in his letter dated January 16, 2012, Andre Gagne (CKR Global Investigations) stated that he interviewed some neighbours at the Plaintiff’s parents’ home where he originally lived before moving to the Scrivens property.

He found that some neighbours did not see any moves in September 2011 however, some were at work all day and some could not be reached. − Bernard Lefebvre, who investigated the fire two days after the loss was advised by the public sector investigators that there was not much furniture and no contents were removed from the scene but rather pushed to the side in order to determine the origin and cause of the fire. Mr.

Lefebvre observed 2 computers, washer, dryer, electric range, two hot water tanks at the north end of basement; − in an email from Bernard Lefebvre to Marc Latendresse dated October 1, 2015, he stated what he was told by the public sector investigators that the building did not contain much furniture but admitted that he did not go through the piles of debris made by the excavator.

He had a CD containing 99 photographs; − CFS’s (Causation Forensic Specialists ) report of December 15, 2011 prepared for the Defendant states at page 2 under the investigation section: Numerous pile of debris were located around the perimeter of the foundation, revealing no evidence related to being able to ascertain a possible cause for the fire. We did not observe evidence of furniture, however some may have been burned within the larger piles of debris.

In the garage we observed the burnt remains of two computers, and located in the north end of the basement were the burnt remains of a washer and dryer, an electric range, and two hot water tanks (Photograph 6). An outdoor patio set was observed past piles of debris on the east side of the property. − the fire investigation report from the Office of the Fire Marshall released October 4, 2012, stated that they were not able to determine the area of origin nor the cause of the fire; − the E-djuster letter dated January 11, 2012 to Marc Latendresse confirmed Mr.

Roberto Smilovich’s attendance at the site on December 20, 2011, “We found the site to be a total loss, and the contents were completely destroyed and separated in several piles throughout the property. With the use of shovels we attempted to dig through the piles to identify any visible contents. Please note that we went through the contents on 3 separate occasions to assure that no visible contents were missed.

An added factor was that the piles of rubble were frozen, so this made the digging limited;” − the Police occurrence report dated December 2011 on page 30 of 41 stated that: “The remaining debris was continued to be excavated by the heavy equipment shovel with each load observed as it was discarded. There was nothing of evidentiary value located in these piles of debris;” [ 40 ] Regarding the value of the items lost, even with the Umpire’s award, it does not establish the existence of the items and the value of each specific item claimed by the Defendant. Bajuk v.

York Fire & Casualty Insurance Co. [2011] O.J. 2180 , appraisal award does not relieve the Plaintiff from proving the existence of the loss. [ 41 ] There is insufficient evidence before the Court to determine the value of specific items. Furthermore, there is insufficient evidence as to whether the Plaintiff is entitled to replacement value where he must show that he intended to replace the items after the loss and would have done so.

He claims that certain items were replaced but there is an issue as to whether they are the ones in the Plaintiff’s original list in his proof of loss. [ 42 ] The Plaintiff’s original affidavit, with receipts attached, shows a total amount of $42,651. [ 43 ] He submitted a list with description, brand name, where purchased, approximate date of purchase, original price of $58,553.21, replacement value of $65,880.60 and actual cash value of $45,994.39. His supplementary affidavit sworn on December 21,

2016 provided another list of items at exhibit F with a total of $19,854.38. [44] Given the contradictory nature of the details as to the values of the items, and considering that the Court does not have thespecific values of the items valued by the Umpire, the Court cannot render a

summary judgment. Defendant’s Request for

Summary Judgment [45] The Court finds that it has power to grant a

summary judgment in favour of the Defendant, although there is no formal crossmotion for the same. See King Lofts Toronto I Ltd. v. Emmons, 2013 ONSC 6113 , [2013] O.J. 4418. [46] The Court finds that there is no genuine issue requiring trial regarding the Plaintiff’s claim for “additional living expenses” asthe Plaintiff admitted that he did not have living expenses as he moved in with his parents and “helped out with a Rogers’ bill”. [47] The Plaintiff provided a 2012 receipt for Las Vegas and the remainder of the receipts were dated 2013 over one year after thedate of loss. [48] Therefore, the Court grants

summary judgment in favour of the Defendant dismissing this aspect of the claim. The Court’s powers under Rule 20.05 [49] In Hryniak, the Supreme Court stated at page 60: The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as awhole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest ofjustice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment mayrun the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest ofjustice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and bethe most proportionate, timely and cost effective approach. [50] As stated in Nguyen v. SSQ Life Insurance Co. 2014 ONSC 6405 , [2014] O.J.

No. 5253, at para. 28: [28] If, however, there appears to be a genuine issue requiring a trial, then the Court should determine if the need for a trial can beavoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers,provided that their use is not against the interest of justice.

Their use will not be against the interest of justice if their use will lead to afair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [51] At paragraph 22 of Hrnyiak, the Supreme Court stated: 22.

Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companionMauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a

summary judgmentmotion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to applythe law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be agenuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided byusing the new powers provided under Rules 20.04(2.1) and (2.2).

She may, at her discretion, use those powers, provided that their use isnot against the interest of justice. [52] It would not lead to a fair and just result and serve the goals set out in the case, if the Court used the expanded fact-findingpowers to call oral evidence or require further written material. Rather, the interests of just require that this matter can be resolvedeffectively in a short trial.

Findings of fact and credibility can be made by the Court hearing a short trial and hearing viva voce evidenceon the issues to be determined. [53] Therefore, based on the issues of credibility, this is not a case for a

summary trial under Rule 76 where there is limited cross-examination. [54] Pursuant to Rule 20.05(2)(n), this matter should be set down for trial and the parties are to contact the Trial Coordinator’soffice to obtain a trial date. [55] If the parties cannot agree on the issues of costs, the parties will provide a two-page submission along with bill of costs andany offers to settle by February 24, 2017.

Madam Justice A. Doyle Date: February 1, 2017 CITATION : Gebara v Economical Insurance Group , 2017 ONSC 801 COURT FILE NO.: 13-59485 DATE: 2017/02/01 ONTARIO SUPERIOR COURT OF JUSTICE RE: Fady Gebara, Plaintiff AND The Economical Insurance Group, Defendant BEFORE: Justice A. Doyle COUNSEL: J.L. Lee Mullowney Counsel for the Plaintiff Katherine M. Nelson, Counsel for the Defendant HEARD: January 25, 2017 ENDORSEMENT Madam Justice A. Doyle Released: February 1 , 2017