Preparing for Discovery in a Property Insurance Claim

An examination under oath is not an examination for discovery

These get conflated constantly, and the difference matters enormously. If your insurer has already put you through a sworn question and answer session before any lawsuit existed, that was an examination under oath, not a discovery.

An examination under oath is something your own insurer can require of you under the statutory conditions that form part of your policy. It happens during the claim, before litigation. The insurer's lawyer asks the questions, you have no corresponding right to examine anyone, and refusing to attend can put your coverage itself at risk. Its purpose is to let the insurer decide whether and what to pay.

A discovery happens only once the claim has been denied and you have sued. It runs under Rule 31, it is mutual, and your lawyer gets to examine a representative of the insurer about how the claim was handled and why it was refused.

The insurer's right to an examination under oath is not unlimited. The courts have held that it exists so the insurer can obtain the facts it needs to assess its obligations, not so it can conduct a fishing expedition.

Aviva Insurance Co of Canada v Ebhodaghe, 2021 ONSC 7343.

Your examination under oath transcript comes with you

If you gave an examination under oath, that transcript exists and defence counsel will have it in front of them. So will any recorded statement you gave an adjuster in the first days after the loss, when you were least organized and most upset.

Read both before your discovery. Where your evidence has changed because you have since found a receipt or remembered something properly, say so and explain why. An acknowledged correction is unremarkable. An unexplained inconsistency is what gets used.

The proof of loss and the contents inventory

This is where property discoveries live. You will be taken through your proof of loss and your schedule of contents, and asked about items on it: what it was, when you bought it, what you paid, where you bought it, what condition it was in, how you arrived at the value, and what documentation you have.

Nobody keeps receipts for everything they own, and no one expects otherwise. What causes real damage is a figure asserted with confidence that turns out to be unsupportable, or an item on the list that was not in the building. If a value is an estimate, present it as an estimate. If you are unsure whether something was there, say you are unsure.

The circumstances of the loss

Expect detailed questions about the property itself and the period around the loss. When you were last there. Who else had keys or access. Whether the alarm was set and monitored. Occupancy, and any period the property sat empty. Recent renovations, electrical or plumbing work, heating, and any prior problems with the building. Where everyone was that day.

These are standard in fire and water losses regardless of suspicion, because cause of loss is usually contested on expert evidence and the factual context is what the experts work from.

Questions that feel like accusations

In some files you will be asked about your finances: mortgage arrears, debts, whether the property was for sale, whether coverage had recently been increased, and your prior claims history.

This line of questioning arises where the insurer has pleaded misrepresentation, non-disclosure, or arson, and it is uncomfortable by design. Two things are worth knowing. First, your lawyer will have seen the pleading and will have prepared you for exactly this, so nothing should be a surprise. Second, the answer is the same as everywhere else in these guides: answer it accurately and without embellishment. Financial difficulty is not proof of anything. An evasive answer about financial difficulty is far more damaging than the difficulty itself.

What you said when you bought the policy

Where the defence includes misrepresentation at application or renewal, you will be asked what you were told, what you were asked, what you disclosed, and who filled in the form. Brokers complete applications on customers' behalf more often than people remember.

Describe the process as it actually happened, including anything you did not read.

How to prepare

• Re-read your examination under oath transcript and any recorded statement. These are the documents you will be measured against.
• Go through your proof of loss line by line. Flag every figure that is an estimate rather than a documented cost.
• Gather what documentation exists. Receipts, photographs, credit card records, insurance appraisals, renovation invoices.
• Reconstruct the timeline of the property. Occupancy, work done, prior incidents, who had access.
• Read the statement of defence. You should know what is actually being alleged before you are asked about it.
• Tell your lawyer about anything awkward. Prior claims, financial pressure, a lapse in disclosure. Known problems can be handled.

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