Summary judgment not appropriate for dispute regarding proof of loss in fire policy claim when credibility issues require a full trial to explore

Summary judgment not appropriate for dispute regarding proof of loss when there are credibility issues requiring a full trial to explore.

Insurance law – Property insurance – Proof of loss – Practice – Summary judgments – Evidence – Legal vs. evidentiary burden

Gebara v. Economical Insurance Group, [2017] O.J. No. 458, 2017 ONSC 801, Ontario Superior Court of Justice, February 1, 2017, A. Doyle J.

The insured moved for summary judgment for losses sustained as a result of a fire. The insured claimed the loss of items and additional living expenses under an insurance policy with the defendant insurer.

The insurer opposed the motion on the basis there was not a proper evidentiary record, there were genuine and material issues in dispute requiring trial, and the court would be required to make credibility findings and could not do so on the evidentiary record before it.

The insurer took the position the insured had not proven the existence of the items in the proof of loss nor that they were lost in the fire. The insurer identified a number of inconsistencies with respect to the evidence before the court including when the insured moved into the premises and the value of the items lost.

The court was ultimately satisfied there were credibility issues which would require a trial. Accordingly, the insured’s application for a summary judgment was dismissed.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at celder@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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