Manitoba court dismisses claim for delay

Nearly fifteen years after a fire damaged an insured’s home, the Court of Queen’s Bench of Manitoba has dismissed the claim for delay.
In Martin et al v. The Portage La Prairie Mutual Insurance Company, Wayne and Diane Martin owned a home insured by Portage La Prairie that contained a “large quantity of personal property.”
A fire in the Martin’s garage in October 1995 resulted in fire and smoke damage to the home and its contents. The insurer deemed the house fit for occupancy in December 1995, but the Martins refused to live in it, citing a high level of volatile organic compounds (VOCs) in the air as a result of the fire and the construction and remediation work done to restore the home. The house has not been lived in since this time.
A proof of loss was filed in September 1997 for Cdn$412,829. The insurer rejected the claim on the basis that it was overstated.
In June 1998, a statement of claim was filed, alleging that the insurer was negligent and failed its duty of care to ensure that any repair of the property would be carried out with reasonable care and that the repairs were done negligently.
The insurer’s statement of defence noted the claim was absolutely barred under either the insurance policy (having a one-year limitation period commencing from the date the loss occurred) or under the Insurance Act (having a two-year limitation period).
“Then there was a six-year gap between the filing of the plaintiff’s notice of intention to act in person in January 2001 and the filing of this motion in February 2007,” Justice Cooper wrote. “Then there is another ‘lost year’ between the filing of the motion and the plaintiffs finally filing material in response in Feb. 2008.”
The plaintiff’s explanation for the delay is health and financial problems.
Justice Cooper determined that too much time had passed to rely on witness recounts, and that the evidence to determine whether or not the home had been restored to an inhabitable state has since deteriorated.
“Balancing all relevant considerations, and notwithstanding the sympathy I may feel for the Martins who are having difficult times, I have concluded that essential justice require that this claim be dismissed.”