Application for Property Inspection Granted to Insurer

Insurance law – Property insurance – Appraisal – Practice – Discovery

Arvanitopoulos v. Wawanesa Mutual Insurance Co., [2021] O.J. No. 6230, 2021 ONSC 7309, Ontario Superior Court of Justice, November 4, 2021, B. McAfee Associate J.

The insurer sought an order under Rule 32 of the Ontario Rules of Civil Procedure that its experts be allowed access to the insured’s property to conduct an inspection. The action arose out a fire that occurred on February 16, 2015. The insurer had inspected the property following the fire, but not since the insured had commenced an action for damages. The insurer had triggered the appraisal process under the Insurance Act, R.S.O 1990, c.I.8, after initial procedural steps were taken in the action. The insureds subsequently served six expert reports. On the application, the insureds took the position that the insurer had already had access to the property, that the condition of the property had not changed since, that the inspections proposed would delay proceedings, and that any reports generated by the insurer would force them to incur significant expense obtaining responding reports.

The court noted that the intent of Rule 32 is to level the playing field between the parties where one party has exclusive access to property and should only be denied if there is some evidence of prejudice arising from the order. In this case, the court agreed that the insurer ought to be entitled to inspect the property and make its own determination with regard to its current state and determined that allowing the inspection would not result in any delay or prejudice. The court noted it would be up to the umpire to determine if any reports generated by the insurer’s experts were admissible in the appraisal process. With the exception of one of the insurer’s experts, who was alleged to have damaged the property on a previous visit, the application was granted.

This case was digested by Michael J. Robinson, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Michael J. Robinson at [email protected].

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