Timeliness of Appraisals: How Late is Too Late?
by Nicola Brankley | Oct 16, 2017
The appraisal process is an effective and efficient way to quantify a disputed claim under a policy of insurance. It provides an out-of-court mechanism through which qualified individuals can assess and measure the monetary value of a loss. While the commencement of a civil action does not itself preclude the right to trigger the appraisal process, there has been judicial disagreement as to whether the right exists in perpetuity after a civil action has been issued, or whether there comes a point in time at which that right can be lost.
After several years of inconsistent judgments regarding the mandatory nature of appraisal once triggered, the Ontario Court of Appeal has recently provided direction for this area of the law. This guidance includes a reminder that the Court retains the jurisdiction to control its own process, and that the right to utilize the appraisal process can be lost if an abuse of process occurs.
2. WHAT IS APPRAISAL?
The appraisal process is designed as an expeditious procedure to settle claims for indemnity under a policy of insurance. Indeed, the process has been referred to as an “efficient and cost saving measure available to the parties to effectively resolve their dispute”. The appraisal is designed to provide a final and binding determination of the quantum of loss suffered by the insured.
Through this process, each party appoints an appraiser to act on its behalf. Ideally, each of the appointed appraisers will be an expert on the subject matter in question. However, there are no stipulations in the Ontario Insurance Act as to who can be appointed as an appraiser. If the two appraisers are unable to agree upon the dollar value needed to return the damaged property to its original state, then the appraisers appoint an umpire. Both sides then present evidence and the reasons supporting their position; once two of the three individuals agree upon a quantum and sign the Appraisal Award, the matter is resolved.The Appraisal Award is binding, subject to judicial appeal only in limited circumstances such as proof of misconduct or an exceedance of jurisdiction by the appraisers or umpire. The parties to the appraisal are responsible for paying their own costs, and splitting the costs of the umpire. 
A. The Right to the Appraisal Process
The right to appraisal typically flows from section 148 of the Insurance Act, which requires that each contract of insurance made in Ontario contain the following condition:
11. In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under the Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.
The preconditions in section 148 of the Insurance Act therefore require that (a) there be a disagreement as to the value of the property insured, the property saved, or the amount of the loss, (b) a specific demand for appraisal is made in writing, and (c) a proof of loss has been delivered.
While this Statutory Condition is found in the section of the Insurance Act applicable to fire insurance, this condition can apply as a contractual term to all perils in a multi-peril policy if clear and unambiguous policy wording specifically incorporates it for this purpose.
In the event that a party fails or refuses to comply with the appraisal process once triggered, assistance can be sought from the Courts:
128. (5) Where,
(a) a party fails to appoint an appraiser within seven clear days after being served with written notice to do so;
(b) the appraisers fail to agree upon an umpire within fifteen days after their appointment; or
(c) an appraiser or umpire refuses to act or is incapable of acting or dies,
As no provision of the Insurance Act stipulates a deadline by which an election for appraisal must be made or a maximum time within which intervention from the Court must be sought, an initial reading of this statute would appear to indicate that the right to pursue appraisal remains ad infinitum. Over the years, however, the Canadian Courts have taken conflicting positions on a Court’s ability to enforce the use of appraisal after a civil action has been commenced by the insured against its insurer, in the face of an objection that the request was made too late.
3. PAST CASE LAW
A. Court Finds Appraisal Process is Mandatory at any Time
In Greer v. Co-operators General Insurance Co.  O.J. No. 3118 (ONSC), the insurer brought a motion requiring the insured to participate in the appraisal process, and for a stay of the civil action. The motion was brought approximately a year after the action was commenced, and two years from the date of the fire loss.
In granting the insurer’s motion, Justice Shaughnessy held that use of the appraisal process is mandated when the value of the plaintiff’s claim is disputed. All disputed questions of the quantum of loss are to be determined by appraisal, independent of all other questions arising under the policy of insurance. In the Court’s opinion, Statutory Condition 11 evidences a legislative intention that the determination of the disputed value of the loss must be resolved by appraisal before there can be any recovery on the contract. In finding as it did, the Court did not read in any time limitation by which the appraisal process must be triggered and pursued.
In Seed v. ING Halifax Insurance,  O.J. No. 1976 (ONSC), the insured suffered damages from a flooding incident in her home. She brought an action against the insurer claiming indemnity under the insurance policy, as well as seeking non-pecuniary damages for personal injuries, general damages, damages for mental anguish, pain and suffering, and punitive, exemplary, and aggravated damages. The question of indemnity under the policy was being dealt with through the appraisal process, and each party had appointed an appraiser. The civil action for the remaining relief continued at the same time.
As part of the action, the insured brought a motion for an order staying the appraisal proceedings and directing the insurer to proceed with the civil action. The insurer brought an application at the same time for an order requiring the parties to proceed with the appraisal process.
The insured’s motion was dismissed and the insurer’s application was allowed. In so deciding, the Court found that through the Insurance Act and the statutory appraisal process, the legislature had removed the Court’s jurisdiction to assess damages arising under policies of insurance. It further found that the appraisal process is mandatory, and no action for recovery under the policy may be taken until the appraisal process settles the disputed damages issues.
The Court held that the intention of Statutory Condition 11 was unambiguous and incapable of being unilaterally waived by either the insurer or the insured. The Court concluded that the process of appraisal is a free standing one which is mandated by the Insurance Act. It must be used if either party requests it. Once again, the Court made no comments about any time limitation for using this process.
In 854965 Ontario Ltd. v. Dominion Of Canada General Insurance Co., 2003 CanLII 42670 (ONSC) (aff’d  O.J. No. 4471 (Div. Crt.)), the Court was faced with the question of whether the value of professional fees as set out in the Fire Proof of Loss were capable of being determined by appraisal. The Superior Court held that use of the appraisal process was appropriate.
The Divisional Court agreed, clarifying that the action commenced in the court would continue if necessary to determine any questions of law concerning the entitlement to recover these particular fees under the policy. In rendering its decision, the Superior Court discussed the purpose behind the statutory appraisal process, finding that it is contemplated to take place prior to any recovery under the contract, whether there is any dispute as to the ability to recover on the contract, and independently of all other questions. The appraisal process commonly determines value, but leaves question of entitlement and defences to recovery under the contract to a lawsuit. Because of this, the appraisal process can take place concurrently with a lawsuit dealing with the insured’s claim to recover under the contract and an insurer’s defences to payment. The Court found that there is little, if any, discretion to refuse an application for the appointment of an appraiser or umpire under s.128.
In Hog Haven Inc. v North Waterloo Farmer’s Mutual Insurance, 2016 ONSC 5311, a fire loss occurred in 2011. A claim by the insured against the insurer was commenced a year later. Pleadings motions ensued in 2013 and 2014. In March 2015, the insurer indicated for the first time that it intended to invoke the appraisal process. The appraisal proceeded and the quantum was determined in September 2015. In a later motion by the insured to enforce payment, the motion judge commented upon the use of the appraisal process in this action, stating in obiter“the appraisal process was always available” despite litigation:
“ As discussed, the appraisal process could have been invoked by the plaintiff or the defendant at any time. All that was required as a precondition was a proof of loss. When a proof of loss was finally provided and appraisal invoked, the quantum of the loss was completely resolved within five months. I recognize that the parties had both been diligently working on quantifying the claim outside of this process for several years beforehand but it was always open to the parties to advise each other that this would be the mechanism they would pursue rather than litigation.”
B. Court Finds Jurisdiction to Refuse to Allow Appraisal to Proceed
While a number of Ontario cases have found that the appraisal process is mandatory at all times, other Ontario decisions have found to the contrary.
In 1633092 Ontario Ltd. (Re)  OJ No. 2628 (ONSC), the plaintiff’s property suffered damages after a fire loss in February 2007. The plaintiff commenced a civil action against the insurer that same year. In June 2009, the insurer brought a motion for, among other things, a stay of the action until a valuation of the property had been completed through appraisal.
The motion was denied. The Court held that there is no doubt that the appraisal process is designed to be a summary, low cost procedure. However, it assumes that recourse will be had without delay. The Court noted that the fire had occurred two years and four months before the insurer sought to utilize the appraisal provision. In these circumstances, the Court found that it was not reasonable to stay the civil proceeding to permit appraisal after this much delay. It would appear from this decision that the insurer lost its right to use the appraisal process due to delay in pursuing it.
In Ouellette v North Waterloo 2015 ONSC 1651 (leave to appeal denied  O.J. No. 4592 (S.C.J.)), a motion for appraisal was brought six years after the loss occurred and seven months before the trial of the civil action was to commence. The motion judge determined that the insurer had waited too long to trigger the appraisal process, and that it had lost its right. The insurer sought leave to appeal, arguing that the appraisal process was mandatory. In very brief reasons denying leave, the Court dismissed this argument on the basis that the Statutory Conditions in s.148 of the Insurance Act are not mandatory in multi-peril policies. It is unclear from these short reasons whether the policy had attempted to incorporate the condition as a contractual term, or whether the Court hearing the leave application was directed to the case law in which a contractual appraisal provision was applied to all perils in a policy. In any event, the Court clearly held that the right to appraisal can be lost if recourse to the process is not made in a timely manner.
Agro’s Foods v Economical 2016 ONSC 1169 is another recent case in which a request for appraisal was denied. In 2011, severe windstorms caused damage to buildings on a mushroom farm owned by the plaintiffs. A dispute arose about the extent of the damage caused by the wind as opposed to pre-existing damage. One year after the loss, Economical advised the plaintiffs that it was triggering the appraisal process to determine the quantification of windstorm damage. The plaintiffs refused to take part in the appraisal process and commenced a civil action instead. When the plaintiffs brought a motion for summary judgment in the civil action in 2016, Economical argued (among other things) that the quantification of the windstorm damage should be determined by the appraisal process it had triggered, rather than through the lawsuit.
The Court held that while the appraisal process was applicable to the peril in question, this process could not determine whether damage pre-existed a storm. It found that the expertise of the appraisers in the area of issue would only be of assistance after it was determined whether coverage for the property damage resulted from an insured risk, or whether it existed prior to the storm by virtue of faulty construction. In those circumstances, the appraisal process would not achieve its objective of a quick settlement of the insured’s loss and the action should therefore be permitted to continue. Coupled with this determination was the fact that the plaintiffs sought a number of other heads of damages that fell outside the jurisdiction of the umpire. In light of this, Economical’s right to appraisal was denied.
Courts in other Canadian provinces have also found that they retain jurisdiction to refuse a party’s request to utilize the appraisal process.
In Arlington Investments Ltd. v. Commonwealth Ins. Co. (1985), 60 B.C.L.R. 113 (BCCA), a fire damaged the insured’s bowling alley. A civil action was commenced after the insurer denied coverage. In its Statement of Defence, the insurer pleaded that it waived the appraisal provisions of the policy. The insured, however, triggered the process and appointed an appraiser. The insured brought a motion requiring the insurer to appoint an appraiser and utilize the appraisal process, after the insurer refused to voluntarily comply. The motions judge found that the appraisal process was to be followed. In considering its jurisdiction to appoint an appraiser on the insurer’s behalf (given that the BC statute, similar to Ontario, provides that the Court ‘may’ appoint one), the lower Court held that the permissive ‘may’ does not give the Court an absolute discretion to refuse to appoint an appraiser. Rather, it held that this clause must be read in conjunction with Statutory Condition 11, which uses the mandatory ‘shall’ in respect of the use of appraisal to determine the amount of the loss in the event of disagreement.
The insurer appealed. Although the appeal was ultimately denied, the BC Court of Appeal clarified that a judge has discretion to refuse to appoint an appraiser and that this discretion must be exercised judicially, not capriciously. The Court went on to say that a decision will depend on the circumstances of each application and the evidence adduced in support of it, but in making a decision the judge should bear in mind that the purport of the legislation is to have an appraisal.
In Winnipeg Regional Health Authority v. Temple Insurance Co. 2011 MBQB 92, the insureds brought a motion seeking to compel the insurer to comply with the appraisal provisions of the insurance policy. In dismissing the motion, the Manitoba Court of Queen’s Bench upheld the use of the appraisal process, even where the process was not invoked until six and a half years after the date of the loss.
Despite granting the appraisal request, the Court agreed that the right to appraisal does not exist in perpetuity; it must be exercised within a reasonable time of the loss date and before a proceeding on the same issue advances to the point where the object of the provision is no longer obtainable. While the Court further recognized that there would be situations where the Court should exercise its discretion against appointing an appraiser or umpire, it found no compelling circumstances to do so here. The facts before the Court did not support a suggestion that the insurer was prejudiced by the insureds invoking their appraisal rights at this stage of the litigation, nor did they support the insurer’s allegation that the insureds were estopped by their conduct because of the passage of time.
4. RECENT CASE LAW
The most recent pronouncement in Ontario on the ability of the Court to refuse to enforce an appraisal request comes from the case of 56 King Inc. v. Aviva Canada Inc.
In 56 King, the Court was asked to determine whether Aviva was permitted to trigger the appraisal process when the insured had commenced a lawsuit seeking payment under the policy and for bad faith and punitive damages. The objection before the Court was that the request was made too late and that the bad faith claim could not be determined by way of appraisal.
A. Background of Case
The plaintiff owns a commercial property in Waterloo (the “Building”) that was damaged by wind in July 2013. The damage was reported on August 3, 2013 to its insurer, Aviva. Aviva denied coverage that same month, as the damage appeared to be pre-existing rather than having been caused by an insured peril. The plaintiff delivered its Proof of Loss on October 17, 2013.
The plaintiff commenced an action against Aviva on February 14, 2014, seeking indemnification under the policy, along with bad faith and punitive damages purportedly resulting from Aviva’s denial of the claim under the Policy.
Aviva’s Statement of Defence was served on April 8, 2014 and its draft Affidavit of Documents provided on December 18, 2014. The plaintiff did not present any documentation in support of its claim until it served its Affidavit of Documents on August 24, 2015. Following receipt of these documents, settlement discussions were initiated in November 2015 but no resolution was reached.
In response to a Request to Admit, on January 7, 2016 Aviva agreed that there was coverage under the insurance policy. The very next day, the plaintiff elected to waive its right to conduct an examination for discovery of Aviva and indicated its intention to proceed straight to trial. Less than a week later, the plaintiff unilaterally scheduled an April 2016 appearance at trial scheduling court.
On January 25, 2016, Aviva elected to proceed with an appraisal of the quantum of monies recoverable under the policy. An appraiser was appointed on behalf of Aviva this same day. The plaintiff refused to appoint an appraiser on its behalf, taking the position that the appraisal process was not available to Aviva. Aviva therefore brought a motion for a declaration enforcing its election of the appraisal process, in accordance with the Policy terms and the Insurance Act. The plaintiff’s claim for bad faith did not form part of this appraisal request.
The nub of the plaintiff’s argument against this motion was that Aviva waited too long to invoke the appraisal process, and that litigation in this action was so far advanced that it would be unjust to the plaintiff to allow appraisal at this time.
B. The Motion Decision – 2016 ONSC 7139
By reasons dated November 21, 2016, Justice Lofchik granted Aviva’s motion and ordered that the parties proceed to appraisal with respect to the quantification of damages under the policy.
While the plaintiff argued that the Court had no jurisdiction to grant the relief sought because Aviva did not plead s.148 of the Insurance Act in its Statement of Defence, Justice Lofchik held that this was no bar. Section 148(1) of the Insurance Act does not contemplate the matter of appraisal being raised in pleadings, but rather by demand made in writing. As a written demand had been made, Aviva was permitted to pursue this relief.
The plaintiff also argued that Aviva’s request for appraisal should be denied due to undue delay, stemming from the fact that this motion was not brought until two and-a-half years after the loss and two years after the action was commenced. Justice Lofchik rejected this argument, finding that the wording of Statutory Condition 11 and s.148 of the Insurance Act is mandatory, such that the matter of value of property insured, property saved, and the amount of loss must be determined by appraisal. His Honour held that the decisions of 1633092 Ontario Ltd.,  O.J. No. 2628 (SCJ) and Ouellette Estate v. North Waterloo Farmers Mutual Insurance Company, 2015 ONSC 1651 flew in the face of this mandatory wording. Justice Lofchik found that the Insurance Act demonstrated a legislative intent that necessarily implies a continued availability of the appraisal process despite the commencement of any action.
A further argument made by the plaintiff was that the use of the word “may ” in subsection 128(5)(c) suggests that a judge of the Superior Court of Justice has the discretion to refuse to appoint an appraiser or umpire. The Court rejected this argument, considering the use of the word “shall ” in s.148 of the Act and in subsections (2), (3), and (4) of s.128. His Honour held that there was no timeline in either the policy or the Insurance Act that stipulated a deadline by which an election for appraisal must be made and after which the right is lost.
In addition, it was held that there was no prejudice to the plaintiff by having the value of the covered loss adjudicated by the appraisal process, and that it was likely that the appraisal process may enable a determination to be made more expeditiously than determination of the issue by a jury.
Accordingly, it was ordered that the quantum of the plaintiff’s claim for damages under the policy be determined by appraisal and that the parties comply with the provisions of s.148, Statutory Condition 11, and s.128 of the Insurance Act. The plaintiff’s claims for recompense for the amounts covered by the insurance policy were stayed, although the remaining claims were not.
C. Ontario Court of Appeal – 2017 ONCA 408
The Court of Appeal unanimously upheld the decision of Justice Lofchik. Although their reasons were brief, the panel provided further clarity to the lower court decision, agreeing with the motion judge’s conclusion that the appraisal process was available while the plaintiff’s action was proceeding. However, the Court of Appeal disagreed with Justice Lofchik insofar as the panel found that while the legislation signaled a decided preference for appraisal, the language of s.128 gave the Court discretion to curb abuse and to refuse to allow appraisal to proceed.
However, the Court did not utilize its discretion here, due to its finding that Aviva had not delayed in triggering the appraisal process as, on the facts before it, the appraisal was requested within three weeks of Aviva’s admission of coverage.
An application for leave to appeal to the Supreme Court of Canada has been sought in the 56 King case, with the plaintiff asking the Supreme Court to answer the question of whether the Court has discretion to decline to make an order under section 128(5) of the Insurance Act, where the request for appraisal is not made until after litigation has commenced. If so, the plaintiff has asked the Supreme Court to decide how that discretion should be exercised. A decision on leave is expected sometime in the next four to six months.
5. IMPACT OF RECENT LAW
The Court of Appeal’s decision in 56 King is the first from this level of Court in Ontario to address whether a judge has jurisdiction to refuse to permit an appraisal to proceed. The guiding jurisprudence is now that the Court does have discretion to refuse a party’s triggering of the appraisal process, where to allow it would be to permit an abuse of process to occur.
Further clarity from the Court may be required as to when an abuse of process may be found. Context will likely be key to this decision. Consider, for example, if the Court were to decide that – across the board – recourse to the appraisal process ceases to be available once the civil action is scheduled to be set down for trial. This may seem reasonable at first blush, as one would assume that the parties by this time would have gone through the discovery process, as well as possibly mediation and an exchange of expert reports.
However, as the case of 56 King shows us, this assumption will not always hold true. While the plaintiff in 56 King argued sweeping statements such as “Trial Scheduling Court was pending” or that the insurer “wait[ed] until Trial Scheduling Court” before invoking appraisal, such statements must be read in context. Trial Scheduling Court in this matter was only pending because the day after Aviva admitted coverage, the plaintiff waived its right to discovery and set the matter down for trial. Less than one week after Aviva admitted coverage, the plaintiff had scheduled an appearance at Trial Scheduling Court for three months later. With discoveries of the plaintiff outstanding, as well as undertakings and any motions arising therefore, the matter should not truly have been set down for trial at the time that it was, as it could not verily be certified that matters were ready to proceed. The fact that the plaintiff chose to jump the gun and set the matter down prematurely should be taken into account when deciding to curtail another party’s contractual and statutory rights.
What is clear from the Court of Appeal’s recent decision is that appraisal can still be used after litigation has started and even when there are other issues that will still have to be tried (i.e. bad faith, punitive damages). Recall also that theprocess can be used to determine the quantum of the loss when the ultimate question of coverage remains at issue. In such a case, the appraisal process is used to set out the values, while the question of the availability of coverage is left to be determined by the Court.
In light of the Court of Appeal’s decision in 56 King, a party seeking to trigger appraisal should act expeditiously in doing so, as a request for appraisal can be refused if the Court is of the view that there has been too much delay. What amounts to delay is not set in stone and will be fact dependent. However, we would suggest that when a claim is being adjusted or defended, consideration should be given to triggering the process as early as possible. It would be prudent to ensure the request for appraisal is made before examinations for discovery have been held. A Court could be justified in finding that it is an abuse of process to trigger the appraisal process after discoveries, in light of the discovery process not being available through appraisal. Any attempt to gain additional knowledge that would not be available through appraisal is almost certainly to be frowned upon by the judiciary. A further issue of prejudice that the Court could consider would include the amount of money the insured has spent to date in pursuing the civil action, as that money would be unrecoverable through the appraisal process (where each party bears its own costs).
In addition to ensuring that the right to appraisal is preserved, early consideration of using the appraisal process may also help minimize the risk of an insurer having to defend against a two front war. It is not uncommon for an insured to commence a civil action seeking indemnification for damages to which the appraisal process would apply, while also seeking damages which fall outside that process (such as punitive or bad faith damages, or damages for lost rent). While a stay of proceedings has occasionally been granted once appraisal is pursued, this appears to have occurred only in situations where there are no outstanding issues of mixed fact and law. The Courts have typically held that, despite a portion of the civil action being determined by appraisal, the remainder of the action is to continue. In such a case, an insurer may find itself doing battle on two fronts, having to continue to respond to the remaining portions of the civil action while also dealing with the appraisal process. The Courts have recognized that while there may be procedural complications arising from the fact that an appraisal process will be pursued at the same time as a civil action for related relief, it is for the plaintiff to conduct the litigation as it sees fit.
While certainly not insurmountable, it would of course be preferable for such a situation not to arise. It would appear that the most probable way of avoiding this would be to consider early on in a claim whether the dispute is appropriate for appraisal. If it is, further consideration should be given as to the earliest possible time in which appraisal is triggered, so that this process can be commenced prior to a lawsuit being issued by the insured. While such a strategy does not preclude a potential overlap of appraisal and civil suit, it may be a prudent way to minimize such a risk.
Overall, the decision by the Court of Appeal in 56 King is a useful reminder to insurers of the necessity to remain alive to the options available to them when faced with a claim where the value of the property loss is in dispute. It is a further reminder to proactively choose to engage in these options where appropriate, without delay. As the right to utilize the appraisal process is not lost by virtue of a civil action being commenced, timely discussions should be had with defence counsel handling the civil claim about whether the dispute is one which may be appropriate for appraisal. If it is, the insurer should act without delay so as not to be faced with a situation where it finds its right to appraisal has been lost.