Handscomb v. TD Home and Auto Insurance, 2015 ONSC 975

COURT FILE NO.: CV-14-513300
DATE: 20150212

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOUGLAS HANSCOMB, Plaintiff

AND:

TD HOME AND AUTO INSURANCE COMPANY, Defendant

BEFORE: F. L. Myers, J

COUNSEL: Sari Feferman, for the Plaintiff

Wendy Breuer, for the Defendant

HEARD: February 11, 2015

ENDORSEMENT #1

[1] This matter came before me originally for scheduling of a summary judgment motion at Civil Practice Court. The plaintiff claims from his accident benefits insurer: income replacement benefits, attendant care benefits, and medical rehab benefits. Mediation for the income replacement benefits has failed. Mediations for ongoing claims for the other two types of benefits continue to be scheduled as some of those claims are denied in real time.

[2] The defendant says it is unsure as to whether the plaintiff is an employee or self-employed and this affects the quantum of income replacement benefits to which he may be entitled. The plaintiff says that he has been without income replacement benefits for over a year and he seeks summary judgment for $13,000.

[3] The plaintiff is or was a 10% shareholder in his employer and, for this and other reasons, the defendant is investigating whether he is self-employed. It wants information about the plaintiff’s employment. At Civil Practice Court on January 9, 2015, I ordered the plaintiff to produce his sworn affidavit of documents by January 27, 2015, hoping that doing so would help focus the issue. I also ordered the parties to attend a Case Conference two weeks later in order to schedule a way forward if the parties could not agree.

[4] The plaintiff is having trouble answering the detailed, ongoing questions being posed by the defendant’s financial advisor as the employer has little incentive to provide the depth of information that the defendant requests.[^1] For example, the defendant has asked to know the average number of hours per week and the job duties of every employee, officer, and director of the employer.

[5] As the plaintiff says he needs money, I have scheduled a motion for summary judgment for March 26, 2015. Facta are due on March 23, 2015. The motion record is to be served (and any examinations under summons) are to be completed by March 2, 2015. The responding record is to be delivered by March 16, 2015. Discoveries are already booked for March 18, 2015. They will serve as cross-examinations on the affidavits as well. Counsel may decide to create different transcripts if they want to ask some questions subject to discovery protections.

[6] Just the recitation of the schedule highlights the problem with the proposed motion. $13,000 is in issue. The motion process is simply not proportional or affordable. People need to sit down and resolve this issue and to do so before the motion record is due March 2, 2015. I could offer to resolve the matter summarily, but this still requires some information from the employer who is not a party to the litigation.

[7] I have directed counsel to try to arrange a meeting before March 2, 2015 at which they, the plaintiff, the defendant’s financial advisor and the President of the employer (with counsel if he wishes) can sit down and work through this issue once and for all. While the President of the employer may not wish to be involved and, no doubt, is a busy person with matters that he or she considers more pressing to the business, it is important that the employer assist in this process. If the parties cannot get through these issues themselves, then the President of the employer will be subject to a subpoena or summons to witness and may have to appear for formal examination under oath as part of the motion. A meeting for an hour will be much quicker and definitely less expensive than becoming embroiled as a formal witness in legal proceedings. Moreover, by giving an hour of time, the President will be assisting Mr. Handscomb obtain the benefits to which he is entitled in whichever amount that may be.

[8] In addition, the defendant and its financial advisor need to recognize the issue of proportionality as well. There is no benefit to the defendant in incurring legal fees plus accounting fees equal to or greater than the difference between the two positions being investigated. The breadth of inquiry must be narrowed to what is truly necessary so as to attend a brief meeting and be done with the issue.

[9] The court remains available if the parties request assistance to resolve the matter summarily on consent.

________________________________ F.L. Myers J.

Date: February 12, 2015

[^1]: I use the word “employer” for convenience only. I make no finding and intend no inference as to whether the plaintiff is indeed an employee or self-employed for the purposes of determining his income replacement benefits.