This case illustrates the often-forgotten personal losses in a fire loss claim: the insured’s pain and suffering. This case dealt with a fire loss claim that extensively damaged a home built by the plaintiffs. The recognized culprit, and culpable party, was the manufacturer of the Venmar branded heat recovery ventilator. Common to these types of claims is that they are often brought by the insurance company to recoup the amounts they paid to the homeowner, and this case was no different, but this case illustrates some important points and conclusions:
- In the present case, the Plaintiff (through their insurer) repaired the home in the existing footprint, and the court noted that there was no evidence of a windfall to the plaintiffs. This was a proper way to proceed, as many courts have concluded that damages may properly be fixed at the cost to repair the deficiencies in a home or rebuild a home: Nan v. Black Pine, 55 BCLR (2d) 241 (C.A.); Fors v. Overaker & Mallon, 2014 ONSC 3084; Galan v. Finch, 2015 ONSC 2455; Gemeinhardt v. Babic, 2016 ONSC 4707, 68 RPR (5th) 232, Jarbeau v. McLean, 2017 ONCA 115, 78 RPR (5th) 91;
- The court outright rejected the defence argument that they only had to pay the cash value and not replacement value, with the court relying on Watt v. TD Insurance 2019 ONSC6454; Carter v. Intact Insurance 2016 ONCA 917;
- Given the lack of any real objection being raised to the construction billing (ie: inflated, unnecessary, etc), the funds as paid by the insurance company were accepted as admitted;
- Also to be paid by the defendant was the cost of the hotel to house the plaintiffs during the duration of the rebuild;
- The cost to replace the contents was a little trickier, because the court considered itself to be ill-equipped to fully understand how old (or new) the replaced items were, and as such, how much to discount the items for depreciation, etc. The court reviewed Pennefather v. Pike Estate, [2004] O.J. No. 271 (S.C.), and approved of its approach to simply apply a 15% reduction across the board for depreciation, in recognition that some items could be old, and some items could be new. But because the defence didn’t appear to challenge the amounts claimed, the court basically gave judgment for the amount claimed (with the underlying assumption that the insurance company will generally pay less than market value for many of the items destroyed);
But the more important lesson is that the plaintiff’s in their own right sought general damages for pain and suffering, which was awarded in the sum of $60,000.00. In this regard, the court noted that most fire loss cases appear to deal only with the subrogated losses without consideration of general damages. The plaintiffs lost the house they had dreamed of, built themselves, and lived in. They lost sentimental items of irreplaceable value. They lived in cramped circumstances for eight months. Even when they moved back into the property, their life was difficult. Reconstruction had not been completed. They had to move out from time to time. The fire alarm continued to go off. The strong smell of smoke in the house continued until February of the following year. While the smell lingered, guests were unable to remain in the home. Meetings and decisions related to renovations and recovery were “endless.” These circumstances and their tarnished memories drove them out of the property.
Burr v. Tecumseh, 2022 ONSC 412
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc412/2022onsc412.html