



COURT OF APPEAL FOR ONTARIO

CITATION: Lauzon v. AXA Insurance
    (Canada), 2013 ONCA 664

DATE: 20131031

DOCKET: C56684

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Daniel Lauzon

Plaintiff (Appellant)

and

AXA Insurance (Canada), Darlene Skinner and Ron
    Williams

Defendants (Respondents)

and

The Corporation of the City of Waterloo

Third Party

Morris Manning, Q.C., for the appellant

Peter W. Kryworuk and Tyler A. Kaczmarczyk, for the
    respondents

Heard and released orally: October 29, 2013

On appeal from the order of Justice C. Stephen Glithero
    of the Superior Court of Justice, dated February 13, 2013.

By the Court:

[1]

Mr. Lauzon is an insured homeowner whose property was damaged by a flood
    in January 2008.  He made a claim against his insurer, AXA Insurance (Canada)
    (AXA), for the flood damage.  He provided AXA with a proof of loss for
    approximately $172,000.  However, the proof of loss provided only a summary of
    the heads of loss being claimed with some estimated costs.  There was no
    documentation to support or explain the amounts claimed.

[2]

AXA initiated the appraisal process under s. 128 of the
Insurance
    Act
, R.S.O. 1990, c. I.8 (the Act). Because Mr. Lauzon refused to attend
    an examination under oath or to answer any questions relating to the quantum of
    claimed losses, AXA moved for an order compelling him to be examined on the
    scope and quantum of his damages, and to produce documentation in support of
    his claim (the Motion).  A second motion was also disposed of but that motion
    is not the subject of this appeal.

[3]

By order dated February 13, 2013 (the Order), the Motion was granted
    and Mr. Lauzon was ordered to produce documentation in support of his claim and
    to submit to an examination on the scope and quantum of his damages.

[4]

By order dated May 27, 2013 (the Costs Order), AXA was awarded costs
    of the Motion.

[5]

Mr. Lauzon appeals.  He claims that the motions judge lacked
    jurisdiction to make the Order because AXAs invocation of the appraisal
    process extinguished its right to examine him.  He also seeks to appeal the
    Costs Order.

[6]

We do not accept these submissions and would dismiss the appeal.

[7]

The motions judge gave thorough, compelling reasons for the Order.  We
    agree with those reasons, which can be summarized as follows.

[8]

The appellants proof of loss is substantially deficient and falls
    far short of that required.

[9]

Statutory Condition 6 of the AXA policy requires the insured, where the
    loss or damage is covered by the contract, to give a complete inventory of the
    destroyed and damaged property and to give the details associated with the
    amount of the loss claimed.  This was not done.

[10]

Further,
    part ix of the Additional Conditions section of the AXA policy, entitled
    Duties After Loss, requires the insured to submit to examinations under
    oath.  The fact that the insurer invoked the appraisal process in an attempt to
    resolve issues related to the loss does not oust its contractual right to
    compel the appellant to attend to be examined.

[11]

If
    the appellants position were accepted, resort to the appraisal process would
    oust the insurers contractual right to examine the insured under oath, thereby
    effectively insulating the insured from having the quantum of his or her claim
    inspected.  There is no basis on which to oust the insurers contractual right
    to examine the insured under oath on his or her claim.

[12]

Further,
    the court has the jurisdiction to require Mr. Lauzon to attend for
    examination.  Support for this can be found in
Baig v. Guarantee Co. of
    North America
(2007), 88 O.R. (3d) 161 (C.A.).

[13]

As
    well, the court has inherent jurisdiction to make such procedural orders as are
    necessary to give effect to the statutory appraisal scheme in the Act and to
    prevent an interpretation that flies in the face of the basic concepts of
    modern litigation, namely, to prevent adjudication by ambush, to promote
    efficient and meaningful discovery as a means of reaching a just result, and to
    equip both sides (as well as the umpire in the present case) with the
    information needed to present a full answer and defence.

[14]

We
    would not accede to the appellants request that we grant leave to appeal the
    Costs Order.

[15]

Leave
    to appeal a costs order will not be granted, save in obvious cases where the
    party seeking leave convinces the court that there are strong grounds upon
    which the appellate court could find that the judge erred in exercising his [or
    her] discretion:  see
Brad-Jay Investments Ltd. v. Village Developments
    Ltd.
(2006)
, 218 O.A.C.
    315 (C.A.), at para. 21.

[16]

We
    see no basis for granting leave.  The appellant has not shown any error in the
    motions judges exercise of discretion.

DISPOSITION

[17]

Accordingly,
    the appeal is dismissed with costs to the respondent fixed at $7,000, inclusive
    of disbursements and applicable taxes.

Released: October 31, 2013 (J.C.M.)

J.C. MacPherson J.A.

E.E. Gillese J.A.

C.W. Hourigan J.A.


