Court File and Parties

CITATION: Intact Insurance Company et al. v. Assessment Direct Inc. et al., 2016 ONSC 1485

COURT FILE NO.: CV-11-428030

DATE: 20160304

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Intact Insurance Company, Belair Insurance Company Inc., The Nordic Insurance Company of Canada and Trafalgar Insurance Company of Canada, Plaintiffs/Respondents

AND:

Assessment Direct Inc., 2171713 Ontario Inc. carrying on business as Assessment Direct, Metro Rehabilitation Centre Inc., Osler Rehabilitation Centre Inc., Alex Smolar, Yan Krivoruk, Abram Zilber, Roman Volfson, Oleg Gavrilenko and Igor Estrah, Defendants/Moving Parties

AND:

M.D. Assessment Consult Inc., M.D. Consult Inc., carrying on business as Toronto Regional Pain Management Centre, Danny Grossi, Gladshteyn Psychology Professional Corporation, Ilya Gladshteyn, George Frederick D’Onofrio, Kenneth Roy Keeling, John Doe Corporation, John Doe, Jane Doe and James Doe Doctor, Third Parties

BEFORE: Lederman J.

COUNSEL: David C. Rosenbaum and Alex Cameron, for the Plaintiffs/Respondents

Richard H. Shekter, for the Defendants/Moving Parties

HEARD: February 29, 2016

ENDORSEMENT

[1] The defendants, the moving parties, bring this motion under Rule 21.01(1)(b) for an order striking out the pleadings of conspiracy in the amended Statement of Claim.

[2] On December 23, 2015, the Divisional Court released decisions in Jevco Insurance Company v. Pacific Assessment Centre Inc. et al., 2015 ONSC 7751 [“Jevco”] and State Farm Mutual Automobile Insurance Company v. Assessment Direct Inc. et al., 2015 ONSC 7774 [“State Farm”]. Applications for leave to appeal to the Court of Appeal have been filed.

[3] Just days prior to the return of this motion, counsel for the defendants sought an adjournment of this motion pending the outcome of the leave applications. Firestone J. refused to grant the adjournment in view of the written agreement of counsel that no further adjournments of the motion would be sought after the release of the Divisional Court’s decisions in the aforesaid cases. Firestone J., however, stated that the parties were at liberty to renew their request for an adjournment before the motions judge.

[4] Counsel for the defendants again sought an adjournment when the motion came before me.

[5] On at least two prior occasions, August 5, 2014 and May 29, 2015, counsel for the defendants confirmed in writing that they would not request any further adjournments of the motion after the release of the Divisional Court decisions. Counsel are expected to abide by such undertakings and agreements between them and, accordingly, I came to the same conclusion as Firestone J. and denied the request for a further adjournment.

[6] Counsel were content that I deal with the motion on the basis of the written record that has been filed.

[7] I am bound by the Divisional Court decision in Jevco. That case involved alleged abuses of the medical assessment and treatment procedures established by the Statutory Accident Benefits Schedule similar to the allegations of misconduct that form the basis of the plaintiffs’ claims against the defendants in this case.

[8] The companion case of State Farm which was heard and decided along with Jevco involved several of the same individuals and corporations that are the defendants in the present case.

[9] In Jevco, the Divisional Court ruled that the so called doctrine of merger could not be raised at the pleadings stage as a ground to strike a claim in conspiracy where it is alleged that the defendants conspired to commit another nominate tort. That decision is determinative of the matters raised by the moving parties on this motion. Based on the authority of Jevco, this motion cannot succeed.

[10] Accordingly, the motion is dismissed.

[11] If the parties cannot otherwise agree as to costs, they may make written submissions within 30 days.

Lederman J.

Date: March 4, 2016