N.B. court overturns fire-insurance questioning ruling on procedural grounds

The New Brunswick Court of Appeal has overturned a ruling that upheld an insurer’s right to question a homeowner under oath after a fire, finding that the judge used the wrong procedure to decide the issue.

In Bernard v. The Personal Insurance Company, 2026 NBCA 94, released August 6, 2026, the court left the policy clause’s enforceability unresolved. It also rejected the insurer’s attempt to require a more detailed proof of loss at that stage and awarded Denise Bernard $2,500 in appeal costs.

The decision did not determine what the insurer owes for the fire damage, whether it acted in bad faith, or whether the disputed questioning clause ultimately complies with the Insurance Act.

A fire claim reaches an impasse

Bernard’s Saint-Arthur home was damaged by fire on May 10, 2023. The Personal assigned adjusters and restoration contractors, and the house was barricaded for safety and security.

Bernard submitted a proof of loss the following month, but it lacked an inventory. She acknowledged that it did not meet the statutory requirements. Her own adjuster asked the insurer for material including its fire-cause report, interior photographs and estimates for repairing or rebuilding the house.

The insurer provided 360-degree interior photographs but refused most of the requested documents. Bernard maintained that she needed the missing information to complete her proof of loss.

The Personal also demanded that Bernard and her adult son, who had lived with her, attend examinations under oath under an additional policy condition. Bernard refused, arguing that the condition improperly added to the statutory conditions governing fire insurance.

She sued in April 2024. The insurer denied breaching the policy or acting in bad faith. It said it had never denied coverage and that its investigation and valuation efforts had been frustrated by the incomplete proof of loss and refusal to be examined.

The procedural route mattered

The insurer brought a motion seeking a compliant proof of loss, examinations under oath and a pause in the lawsuit until those steps were completed.

At the hearing, the judge questioned whether he could order Bernard’s son to attend when the son was neither a party nor served with the motion. The insurer changed its request to a determination of whether the insured were contractually required to attend.

The judge upheld the examination clause but refused the other relief. Bernard appealed that ruling, while the insurer cross-appealed the refusal to order a further proof of loss and stay the lawsuit.

Writing for a unanimous panel, Justice Dysart distinguished an application, which can resolve a dispute without a trial, from a motion within an existing lawsuit. Rule 16.04 permits certain contract and statutory interpretation disputes to begin by application. It did not authorize the judge to treat this motion as an application.

The insurer argued that the superior court’s inherent jurisdiction provided the necessary authority. The appeal court disagreed: that power can fill procedural gaps, but it cannot override clear court rules.

A different rule, 23.01, permits some legal questions to be decided before trial. However, the determination must potentially dispose of the action, shorten the trial or substantially save costs. That procedure also limits the evidence that can be admitted without permission. The judge had not addressed those requirements.

The court noted that ordinary litigation discovery already entitled the insurer to examine Bernard under oath. It could also seek permission to examine her son as a non-party if the necessary conditions were met. No evidence showed that separately deciding the policy question would achieve Rule 23.01’s required benefits.

No declaration that the proof of loss was sufficient

The appeal court upheld the refusal to order another proof of loss, but carefully limited what that meant. Bernard’s original document remained deficient. Nor had the judge ordered the insurer to disclose its investigation file.

The insurer argued that Bernard should be able to identify damaged belongings because she had already valued her loss and received an adjuster’s report and photographs. The appeal court acknowledged merit in that argument, but its role was to identify a clear error affecting the result, rather than reassess the evidence.

Bernard’s affidavit said she had been warned not to enter the unsafe home, did not know the extent or cause of the damage, and needed the requested documents to complete the proof with her adjusters’ assistance. That evidence supported the judge’s conclusion.

The requested stay became moot given the appeal’s result. The court expressed concerns about the lower judge’s use of the interlocutory-injunction test, without deciding that question. It allowed Bernard’s appeal and dismissed the insurer’s cross-appeal, leaving the underlying insurance dispute unresolved.