Court File and Parties

CITATION: Jamieson v. Kapashesit et al, 2017 ONSC 5784

COURT FILE NO.: C-2969/2013

DATE: 2017-10-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tina Jamieson and Michael Jamieson, Plaintiffs

AND:

Rosanne Jocelyn Kapashesit, Lester Small, Kyle Abitong, T. Bell Transport Inc. and CIT Financial LTD./Services Financiers CIT Ltee, Defendants

BEFORE: The Honourable Mr. Justice R. Dan Cornell

COUNSEL: John Michael J. Bray and James M. Ross, for the Plaintiffs

P. Peter Diavolitsis, for the Defendants Rosanne Jocelyn Kapashesit and Lester Small

Brian I. Monteiro, for the Defendants Kyle Abitong, T. Bell Transport Inc. and CIT Financial Ltd./Services Financiers CIT Ltee

HEARD: September 25, 2017

ENDORSEMENT

Introduction

[1] On the morning that this trial was to have commenced, the Abitong et al defendants brought this motion, among other motions, to compel production of an adverse costs insurance policy (“ACP”) that provides potential benefits to the plaintiffs. In accordance with the reasons that follow, the motion is dismissed.

Background

[2] This action was brought as a result of injuries alleged to have been suffered by the plaintiff, Tina Jamieson, following a rear-end motor vehicle collision that took place on December 16, 2011.

[3] Liability and damages are in dispute.

[4] The plaintiffs have advised the defendants as to the existence of such insurance coverage for the plaintiffs as well as the amount of such coverage. The plaintiffs have refused to provide a copy of the insurance policy itself for inspection for the reasons that follow.

Issue

[5] The issue to be determined is whether the plaintiffs are obligated to produce for inspection the ACP.

Analysis

[6] The moving party relies upon the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.02(3) that provides:

30.02(3) A party shall disclose and, if requested, produce for inspection any insurance policy under which an insurer may be liable,

(a) to satisfy all or part of a judgement in the action; or

(b) to indemnify or reimburse a party for money paid and satisfaction of all or part of the judgement,

but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.

[7] Rule 1.03 defines the word “judgment” to mean “… a decision that finally disposes of an application or action on its merits and includes the judgment entered in consequence of the default of a party.”

[8] It is customary for a judgment to include a provision that addresses the question of costs.

[9] In Abu-Hmaid v. Napar, 2016 ONSC 2894, Master Short held at para. 25 that:

…such protection [ACPs] is relevant to the resolution of personal injury disputes, and ought to be disclosed at the same stage as disclosure by the defendant is required under Rule 30.02.

[10] Master Short went on to hold that the existence of the policy must be disclosed, but the specifics of the policy or the carrier need not.

[11] The decision in Abu-Hmaid was applied in Paulin v. Singh (unreported, Peterborough court file no. 13-15). In that decision, Gunsolus J. found that the plaintiff was simply obligated to disclose the existence of an ACP.

[12] In both Abu-Hmaid and Paulin, the ACP had been acquired by the plaintiffs in each case.

[13] Those decisions were considered in Fleming v. Brown, 2017 ONSC 1430. In that case, A. D. Grace J. reviewed Abu-Hmaid and Paulin. He questioned the basis for the requirement in those cases that the existence of the ACP be disclosed, but not the policy itself. He went on to conclude that “rule 30.02(3) applies to policies of insurance even if irrelevant to an issue in the action” at para. 27. He found that the ACP fell within the ambit of rule 30.02(3) with the result that the plaintiff was required to permit the defendants to inspect the policy.

[14] Without questioning the approach taken in Fleming, the plaintiffs assert that there are a number of factors that distinguish that case from the present one.

[15] Unlike the ACP in Fleming, the ACP at hand is a blanket insurance policy in the name of “Thomas L. W. Orendorff Professional Corporation d.b.a. Orendorff & Associates.” In this case, the ACP is not in the name of the plaintiffs nor does the ACP reference any individual client or collective of clients.

[16] The plaintiffs point to the fact that rule 30.02(3) requires “a party” to disclose for inspection the insurance policy in question. Although Orendorff & Associates represents the plaintiffs, they are not a party to the proceedings as such.

[17] The plaintiffs point out that the ACP in question is a blanket law firm policy that continues for an indeterminate period into the future. The ACP in question provides that such policy is privileged and is not to be disclosed except as required by legislation, court order or the Rules of Civil Procedure.

[18] As this ACP covers the personal injury caseload of all the lawyers in the firm, the plaintiffs argue that disclosure of the terms of the policy would be a breach of solicitor/client privilege.

[19] Apart from this, the ACP contains an acknowledgment between Orendorff & Associates and its insurer as to when risk may change in the course of litigation, and how that risk is acknowledged between the firm and the insurer. Given such contractual terms, the plaintiffs assert that production of the ACP may well provide a strategic advantage to the defendants.

[20] Finally, the plaintiffs point to the fact that the ACP is not within their possession, control or power. Accordingly, they have no ability to produce it. The plaintiffs argue that if the ACP is to be produced, production from a non-party could only be obtained pursuant to rule 30.10. The plaintiffs go on to assert that such a motion, even if brought, would fail as the ACP is not a document that is relevant to a material issue in the action, relevance being a precondition to production under that rule.

Conclusion

[21] I agree with the position taken by the plaintiffs.

[22] This case can be distinguished from Fleming as the policy is that of Orendorff & Associates and not the plaintiffs. Given the terms of the policy and its application to other clients, the issue of solicitor/client privilege arises. The ACP in this case does not lie within the possession, control or power of a party. In view of this, the motion is dismissed.

Costs

[23] If the parties are unable to agree upon costs, the plaintiffs shall provide written submissions not to exceed two pages together with supporting documentation within 20 days. The defendants shall have 20 days to file responding material not to exceed two pages. The plaintiffs may provide reply submissions within seven days, such submissions not to exceed one page.

[24] If written submissions are not received, it shall be conclusively determined that the parties have agreed upon costs.

The Honourable Mr. Justice R. Dan Cornell

Date: October 27, 2017