Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff filed a motion for rehearing under rule 46.2 following the dismissal of her appeal.

• Argument raised was that the umpire’s valuation constituted a binding determination of actual cash value (ACV).

• Court rejected the motion as the issue was new and not raised during the original appeal.

• Umpire's report clearly addressed replacement cost, not ACV, defeating the plaintiff’s claim.

• Trial judge did not err in finding the umpire’s decision on rebuilding inapplicable to the case facts.

• Motion failed to meet the high threshold of “exceptional circumstances” required for rehearing.

Facts of the case and appellate outcomes

Nicole Linde brought an action against Max Insurance, alleging the defendant acted in bad faith in handling her insurance claim for fire damage to her property. The claim involved a dispute over valuation and the handling of the insurance process. An umpire had been appointed pursuant to provisions of The Insurance Act, CCSM c I40, and issued a report related to the property.

Linde’s initial appeal challenged the trial judge’s findings, including that the judge exceeded his jurisdiction by considering issues determined by the umpire. The Manitoba Court of Appeal dismissed her appeal on February 11, 2025 (2025 MBCA 13), finding no errors in the trial judge’s conclusion that Max Insurance did not act in bad faith and affirming the judge’s authority over the matters raised.

Subsequently, Linde filed a motion for rehearing under rule 46.2 of the Court of Appeal Rules (Civil). This motion was based on a new submission: that the umpire’s report determined the property’s actual cash value (ACV) and that this valuation should have been binding on the trial judge.

The Court of Appeal rejected this argument, explaining that appellate courts do not consider new issues unless “exceptional circumstances” exist. Furthermore, the Court held that the umpire did not make a finding on ACV. Rather, the report stated that “settlement for the building claim will be based on the cost to rebuild from new,” which referred to replacement cost, not ACV. The trial judge had accordingly found that “the decision of the Umpire on rebuilding is not applicable to these facts” (Linde v Max Insurance Company, 2023 MBKB 74 at para 55).

On May 13, 2025, the Court delivered its decision in Linde v Max Insurance, 2025 MBCA 46, dismissing the motion for rehearing with costs. The Court found no patent error or new point arising from the prior judgment that would justify reconsideration. Thus, Linde’s motion was denied, and the prior ruling stood.

No specific amount for damages or total monetary award is mentioned in the uploaded document. Costs were awarded against the plaintiff, but no dollar value is specified in the decision.