Canada: Judicial Review: Umpire's Decision Upheld

In the recent judgment of Vandale v. Wawanesa Mutual Insurance, the British Columbia Supreme Court was asked to judicially review the decision of an umpire, who was appointed to settle a property valuation dispute under s. 12 of the BC Insurance Act. At issue was the appropriate valuation of several pieces of insured jewelry that had been stolen from the insured's home. The court focused on both the standard of review it should use when reviewing the decision (essentially, the degree of scrutiny it would employ in assessing the fairness and rightness of the umpire's decision), and whether the umpire acted within the powers granted to her under the dispute resolution process contained in the Insurance Act. The court's decision to uphold the judgment of the umpire affirms the difficulty both insurers and insured parties will face, should they wish to challenge a valuation decision made under the Insurance Act.

The Facts

The Vandale family insured several pieces of jewelry with the Wawanesa Mutual Insurance Company ("Wawanesa") in September of 2012, under a policy which provided either the replacement cost of the jewelry or the actual cash value, depending on the circumstances surrounding the loss and whether they were replaced. The jewels were stolen less than a year later and the Vandales submitted a proof of loss in which they claimed they were entitled to the full replacement value of the jewelry, based on an appraisal completed when the policy was created which valued the jewelry at $79,000.

Wawanesa disagreed with the valuation, as it had obtained an independent valuation report, based on the original appraisals, which estimated the fair replacement value at $50,900 and the actual cash value after depreciation at $25,450. Wawanesa also contested the allegation that the policy rendered it liable for the full replacement costs rather than the jewelry's fair market value, given that the Vandales had declined to replace the jewelry in question. In response, the Vandales obtained a new valuation report from a different expert, also based on the original appraisals, which instead placed the replacement value at $75,000 but did not address the actual cash value.

The Decision

Pursuant to s. 12 and Statutory Condition 11 of the new BC Insurance Act, either an insured or an insurer, after a proof of loss has been delivered, may trigger the dispute resolution process. Under the old provision, s.9, the process was limited primarily to fire damage, but it now applies whenever there is any dispute over the value of insured property, the cost or nature of repairs, replacements, or, more generally, the amount of any covered loss or damage.

Once triggered, the parties must each appoint a "representative" who is neither an employee nor the insurer or insured themselves. These representatives then meet and either settle the matters in question or, if they cannot agree, they must jointly appoint an impartial "umpire" to render a decision. In this case, an umpire was appointed for the sole purpose of determining the value of the stolen jewelry.

The umpire's decision preferred the expert valuation report submitted by Wawanesa instead of the plaintiff's more recent report, reasoning that the plaintiff's expert was a general appraiser of goods while the one engaged by Wawanesa was a specialist in jewelry. Additionally, the plaintiff's valuation report failed to address the actual cash value of the jewelry, only stating the estimated replacement costs. As a result, the replacement value of the jewelry was held to be the lower figure, $50,900, and the actual cash value of the jewelry, in the absence of any evidence to the contrary, was deemed to be $25,450.

Judicial Review

Dissatisfied with this outcome, the insureds applied to court for a judicial review of the umpire's administrative decision. On a judicial review, a court must first decide how much deference to give the previous decision-maker's reasoning and autonomy. In British Columbia, unlike most other provinces, the standard of review to be employed is set out in the Administrative Tribunals Act (the "ATA"), and varies depending on both the type of decision in question and whether or not the legislation giving the decision-maker its powers contains a "privative clause" that mandates a degree of deference by the courts. Here, the court found the ATAto apply and, further, that the umpire's home statute, the Insurance Act, contained such a 'privative clause' since, in the trial judge's view, it conferred exclusive jurisdiction upon the umpire to determine valuation issues. Since the question before the umpire was also held to be one of fact, not law (namely, the replacement and actual cash value of the jewelry), the trial judge reasoned that the ATAdictated the greatest deference possible, and the umpire's decision could only be overturned and re-heard if it was "patently unreasonable".

Applying this standard, the trial judge noted that the umpire had given only brief reasons but had considered the deficiencies of the plaintiffs' expert valuation report. This was held to be a sufficient basis for the decision. The trial judge was also careful to note that the umpire had stayed within the bounds of her authority and had not attempted to answer the legal question as to whether the Vandales were due the full replacement value of the jewelry under the policy, or merely the actual cash value. In light of these findings, the trial judge ultimately upheld the umpire's decision to affirm the lower valuations and dismissed the petition.

The Implications

The value of insured property is often a central issue after a claim has been filed. This case is the first judicial review of a decision originating from the newly expanded valuation dispute resolution process under s. 12 of the Insurance Act, and it sets a high threshold for successfully challenging such determinations. Should an umpire limit their reasons solely to questions of fact pertaining to valuation, and therefore remain firmly within the statutory grant of power, future courts applying this precedent are likely to only overturn such decisions if they are clearly not supported by the evidence.

Thank you to Michael Larsen for his assistance with this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.