An insurance claim can become stuck even when both sides agree that more information is needed. Bernard v. The Personal Insurance Company, 2026 NBCA 94, shows how quickly that practical problem can become a procedural one. The Court of Appeal of New Brunswick did not decide every insurance question placed before it. Instead, it drew an important line between what could properly be decided on a motion and what had to wait for the right procedure.
Denise Bernard owned a home in Saint Arthur, New Brunswick that was damaged by fire on May 10, 2023. Her homeowner policy with The Personal covered fire loss. On June 29, 2023, she submitted a proof of loss claiming $425,000 for the house and $175,000 for contents and personal property. The proof was incomplete. Bernard acknowledged that it did not contain the inventory required by the statutory conditions that apply to fire insurance policies in New Brunswick.
That gap mattered because Statutory Condition 6 under the Insurance Act requires an insured to provide a proof of loss as soon as practicable and to include detailed information about damaged property, quantities, values, the circumstances of the loss and other specified matters. This was not a case where the insured argued that a bare dollar figure was enough. Everyone agreed the first proof of loss was deficient. The disagreement was about what had to happen next. The Personal had retained an adjuster who estimated the contents loss at $42,366.46, roughly $130,000 below Bernard’s figure. Bernard retained her own adjuster. Her adjuster asked the insurer for material said to be needed to complete the proof of loss, including the cause and origin report, photographs of the inside of the home and estimates for demolition, rebuilding or repair. The insurer provided some interior photographs but declined to provide most of the requested material. Bernard maintained that she could not accurately complete the inventory and other details without it.
The Personal then sought several orders. It wanted Bernard compelled to submit a compliant proof of loss. It also wanted Bernard and her son to attend examinations under oath under an additional condition in the policy, and it sought a stay of the lawsuit until those steps were completed. The motion judge declined to compel another proof of loss. He found that Bernard needed additional information in the insurer’s possession and had done what she reasonably could with the information available. He also ruled on the examination under oath condition and concluded that it was not contrary to the Insurance Act.
The Court of Appeal separated those questions. On the examination condition, it held that the motion judge had used the wrong procedural route. Rule 16.04 allows certain questions about the interpretation of a contract or statute to be brought by application. What was before the judge was a motion inside an existing action, not an application. The Court therefore set aside that part of the decision. Just as important, it expressly declined to say whether the examination under oath condition was ultimately enforceable. The proof of loss issue survived the appeal in a different way. The Court said the motion judge had not declared Bernard’s original proof compliant and had not ordered The Personal to hand over its entire investigation file. The question was narrower. Should Bernard be ordered to submit a more detailed proof when the evidence supported the finding that she could not do so properly without further information? The Court found no legal error in the way the issue had been framed and no palpable and overriding error in the factual finding. The insurer’s cross appeal was dismissed.
That distinction is useful in claims work because it resists two easy overstatements. Bernard does not mean an insurer must automatically disclose its entire investigation file whenever an insured asks. The Court specifically said there was no such general obligation under the policy or the Insurance Act. It also does not mean an examination under oath clause is invalid in New Brunswick. The appellate court did not decide that question on the merits.
What the decision does show is that proof of loss obligations operate in the factual setting of the claim. A deficient proof may still be deficient, yet a court can refuse to compel a further proof at a particular stage if the evidence supports the conclusion that the insured has done what can reasonably be done with the information available. For insurers and policyholders, that makes the sequence of requests, responses and available information important. A claims dispute about missing documents can become a dispute about what is reasonably practicable, and a procedural shortcut can prevent a court from reaching a broader policy interpretation question at all.
The appeal was allowed on the examination condition issue. The Personal’s cross appeal was dismissed. The Court ordered $2,500 in costs to Bernard.