DE SOUSA v. AVIVA INSURANCE COMPANY OF CANADA, 2013 ONSC 185

COURT FILE NO.: CV-12-443243

MOTION HEARD: DECEMBER 17, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carlos De Sousa v. Aviva Insurance Company of Canada

BEFORE: MASTER R. A. MUIR

COUNSEL:
Alan L. Rachlin for the moving party/defendant

Douglas Wright for the responding party/plaintiff

REASONS FOR DECISION

[1] This is a motion brought by the defendant pursuant to Rule 31.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the plaintiff’s notice of examination served June 21, 2012. The plaintiff’s notice of examination seeks to examine Becky Ostrom as a discovery witness on behalf of the defendant.

[2] The defendant takes the position that Ms. Ostrom is not a proper discovery witness because she is employed in the defendant’s accident benefits department. The defendant also seeks an order that the plaintiff be prohibited from examining for discovery any other individual from the defendant’s accident benefits department. The defendant takes the position that an adjuster from the defendant’s third party bodily injury claims department would be the appropriate discovery witness.

[3] The plaintiff was injured in a motor vehicle accident on January 19, 2008. The defendant was the plaintiff’s insurer at the time of the accident. The plaintiff claimed and received first party statutory accident benefits from the defendant.

[4] This action is a tort claim. It was commenced by the plaintiff on January 4, 2012 pursuant to the OPCF 44R Family Protection Change Form that formed part of his policy of insurance. This action was commenced against the defendant because the third party tortfeasor was inadequately insured. As such, the defendant stands in the shoes of the tortfeasor for the purposes of defending this claim.

[5] The defendant has pleaded a limitation defence. It takes the position that the plaintiff failed to commence this action within two years of when he or his lawyer knew, or should have known, that the quantum of his damages would exceed $200,000.00. The plaintiff takes the position in his reply that he was not aware of the possibility that his damages would exceed $200,000.00 until August 2011 at the earliest, when he received a copy of a medical report prepared by Dr. Edward English.

[6] The plaintiff has pleaded that the defendant, in its capacity as the plaintiff’s accident benefits insurer, was well aware of the plaintiff’s medical condition from early 2008 onward. The plaintiff alleges that the defendant took the position that the plaintiff was not as seriously injured as the plaintiff now alleges. The defendant apparently refused to pay income replacement benefits to the plaintiff, at least for a period of time. Of course, the question of whether the knowledge of the defendant in general, or of its accident benefits department specifically, is relevant to the limitation issue is one for the trial judge to decide. For the purposes of this motion, and at this stage of the action, I am satisfied that its relevance has been established on the basis of the pleadings.

[7] It appears from the evidence that the plaintiff’s accident benefits insurer and the defendant in this action is one and the same corporation. Rule 31.03(2) allows an examining party to examine any officer, director or employee on behalf of a corporation. There appears to be no dispute that Ms. Ostrom is an employee of the defendant. The applicable authorities make it clear that the examining party has a prima facie right to examine the officer, director or employee of his or her choice. This choice should not be lightly interfered with. It is not the role of the court to decide who the best representative of the corporate party might be. If an examining party makes a poor selection, he or she must live with the consequences. See Cineplex Odeon Corporation v. Toronto Star Newspapers Ltd., 1986 CarswellOnt 413 (SCO) at paragraph 7 and Mullen v. Canada Life Assurance Co., 2009 CarswellOnt 5660 (SCJ) at paragraph 24.

[8] As indicated above, the defendant takes the position that Ms. Ostrom should not be compelled to attend at an examination for discovery on behalf of the defendant because she works in the defendant’s accident benefits department. This action involves a third party bodily injury claim. The defendant maintains a firewall between its first party accident benefit claims and third party bodily injury claims. It does this because as first party accident benefits insurer, the defendant is entitled to compel the plaintiff to provide certain information it would not be entitled to obtain as the third party bodily injury claim insurer. This policy appears to be consistent with industry standards, the directives of the Insurance Bureau of Canada and the various authorities. See Klingbeil (Litigation Guardian of) v. Worthington Trucking Inc., 1997 CarswellOnt 4870 (GD) at paragraphs 30 and 31; McLennon v. Pilot Insurance Co., 1999 CarswellOnt 5584 (OIC Director of Arbitration) at paragraph 35 and Anand v. Belanger, 2010 ONSC 2345 at paragraph 32.

[9] In my view, it would not be appropriate, in the circumstances of this action, to deny the plaintiff his right to examine a representative of his choosing. Bulletin 184 of the Insurance Bureau of Canada sets out the requirement for the firewall described above. However, Bulletin 184 states that the firewall should be set up so that “information gathered by [the insurer] regarding the accident benefits claim does not become available to the tort adjuster, unless the insured so authorizes” [emphasis added]. It is also clear from the decisions in Klingbeil and McLennon that information can be transferred with the consent of the insured. See Klingbeil at paragraph 30 and McLennon at paragraph 31. The purpose of the firewall is so that an insurer is not advantaged by the fact that it is responding to both claims. See McLennon at paragraph 35. The consent of the insured obviates this concern.

[10] In this action, the plaintiff has clearly and unequivocally provided his consent to the transfer of information. In my view, this consent is sufficient to satisfy the concerns underlying the requirements of Bulletin 184 and the relevant authorities. In view of this consent, the defendant is no longer required to maintain the firewall.

[11] The defendant argues that the plaintiff only wishes to examine Ms. Ostrom in order to elicit evidence of the knowledge of the defendant’s accident benefits department with respect to the plaintiff’s medical condition from time to time. That may be so, but in my view such a purpose does not, by itself, disentitle the plaintiff to examine the representative of his choosing. If the questions the plaintiff asks of Ms. Ostrom are relevant based on the pleadings, they must be answered. If they are not relevant then they need not be answered. Of course, relevance at discovery does not necessarily translate into relevance at trial or suggest that the evidence is in any way probative of the issues in dispute in this proceeding.

[12] For these reasons, I am not prepared to interfere with the plaintiff’s prima facie right to choose the employee of the defendant it wishes to examine. The defendant’s motion is therefore dismissed.

[13] At the conclusion of the argument of this motion the parties agreed that the successful party should be entitled to partial indemnity costs in the amount of $2,500.00. I therefore order that the defendant pay the plaintiff’s partial indemnity costs of this motion fixed in the amount of $2,500.00, inclusive of HST and disbursements, payable within 30 days.

January 8, 2013

Master R. A. Muir