Superior Court of Justice

Court File No.: CV-17-0246 Date: 2018-03-08

Between: Sharon Maki and Michael Maki, Plaintiffs

• and - Intact Financial Corporation carrying on business as Intact Insurance, Defendant

Counsel: C. Hacio, for the Plaintiffs D. Treilhard, for the Defendant

Heard: January 11, 2018, at Thunder Bay, Ontario

Before: Mr. Justice W.D. Newton

Decision On Motion

Overview

[1] The defendant, prior to delivery of its statement of defence, moves for particulars of some of the allegations made in the statement of claim or, alternatively, asks that those allegations be struck.

[2] This motion raises the issue of how specific allegations in a pleading need to be before particulars are ordered.

[3] The claim arises from a fire which occurred in May 2015 causing extensive damage to the plaintiffs’ house and contents. The plaintiff’s insurer, (“INTACT”), paid certain aspects of the claim and repaired the house. The plaintiffs were able to move back into their home in February 2016. The only major insurance claim unresolved is the contents claim. The adjuster deposes that INTACT has paid $198,177.18 to date for contents and acknowledges that “it is likely that more is owing, but INTACT has not been able to quantify that amount to date based on material submitted by the insureds.”

The Law – General Principles

[4] In Antonacci v. Great Atlantic & Pacific Co. of Canada, 2000 CanLII 5496 (ON CA), [2000] O. J. No. 40 (C.A.), the court commented on pleadings and particulars generally:

33 This court in Int. Nickel Co. v. Travellers Ind. Co, [1962] 1 O.W.N. 109 adopted the following statement in Mexican N. Power Co. v. Pearson (1913), 25 O.W.R. 422 at 425 on the function of particulars:

The function of particulars is to limit the generality of pleadings and thus to define the issues which have to be tried and as to which discovery must be given. Each party is entitled to know the case to be made against him at the trial and to have such particulars of his opponent's case as will prevent him from being taken by surprise.

34 The purposes of particulars are also well summarized in Tse-Ching v. Wesbild Holdings Ltd (1994), 98 B.C.L.R. (2d) 92 (S.C.) at 100:

1. to inform the other side of the nature of the case they have to meet;
2. to prevent the other side from being taken by surprise at trial;
3. to enable the other side to determine what evidence will be necessary and to prepare for trial;
4. to limit the generality of pleadings;
5. to limit and decide the issues to be tried and as to which discovery will be conducted;
6. to tie the hands of the party providing particulars.

[5] Where discovery is available there is a divide in the cases. Older cases, such as International Nickel Co. of Canada v. Travelers Indemnity Co., [1962] O.J. No. 56 stand for the proposition that “discovery is not a substitute for particulars”. More recent cases such as Van-Rob Inc. v. Rapid Metals LLC, 2016 ONSC 1321 and Wallbridge v. Brunning, [2017] O.J. No. 5422 state that where oral discovery is available, the general approach is to limit particulars to what a party requires in order to respond to a pleading and to flesh out the story at oral discoveries (Van-Rob, at para. 10).

The Demand for Particulars

[6] Intact seeks the following particulars:

(a) With respect to paragraph 1(d), the amounts and particulars of the “further and other damages” alleged therein;

(b) With respect to paragraph 1(f), the amounts and particulars of the “interest and carrying charges” claimed;

(c) With respect to paragraph 13, the amounts and particulars of the “cost of meals and laundry” claimed therein;

(d) With respect to paragraph 14, the amounts and particulars of the “expenses in changing accommodations” for which the Plaintiffs allege that the Defendant “should be held responsible”;

(e) With respect to paragraph 15, the amounts and particulars of the cost of assembling furniture claimed by the Plaintiffs;

(f) With respect to paragraph 24, the amounts and particulars of each Plaintiffs’ claim for alleged “mental, physical and psychological harm” and “mental distress, emotional harm and loss of reputation”;

(g) With respect to paragraphs 1(c) and 27(a), the identity of the specific chattels for which replacement cost is claimed that have actually been replaced, when the replacement occurred, and the amount paid to replace each chattel,

(h) With respect to paragraph 27(b), the amounts and particulars of the special damages claimed.

Analysis and Disposition

[7] (a) With respect to paragraph 1(d), the amounts and particulars of the “further and other damages” alleged therein;

Paragraph 1(d) provides:

Such further and other damages that arise from the Defendant’s breach of contract and breach of its obligation of good faith, the specifies of which will be provided at a reasonable time prior to Trial;

[8] Such a claim is obviously “boilerplate” and inserted into the claim as a “placeholder” if additional damages are discovered. While it is commonplace to plead in this fashion, since the defendant resists, this paragraph is struck without prejudice to the right of the plaintiffs to amend the claim in the future should further damages be discovered.

[9] (b) With respect to paragraph 1(f), the amounts and particulars of the “interest and carrying charges” claimed;

Paragraph 1(f) provides:

Interest and carrying charges on the damages and losses suffered by the Plaintiff from May 17, 2015 to the day of payment or Judgment, or alternatively, prejudgment and post judgment interest in accordance with Section 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended.

[10] The insurer’s representative deposes that she has "no idea what this refers to”, “had no knowledge of any such allegation prior to receipt of the claim” and has “no knowledge of the amount and particulars of this claim.”

[11] In this case there will be affidavits of documents exchanged and examinations for discovery. Particulars of this claim will emerge through the discovery process. Rule 25.07(2) provides that a defendant may plead that it has no knowledge in respect of a fact. The insurer has sufficient particulars of this allegation to plead.

[12] (c) With respect to paragraph 13, the amounts and particulars of the “cost of meals and laundry” claimed therein;

Paragraph 13 provides:

On or about January 19, 2016, the rent became due at the rental accommodation. The defendant advised the Plaintiffs that it would not pay for an additional month of rent as the Defendant felt that the Plaintiffs’ home would be ready within a matter of days. The Plaintiffs advised the Defendant that their home was not yet fit for habitation because they did not yet have a shower or bathtub available for use. The Plaintiffs asked the Defendant how they were supposed to shower and bathe. The Defendant provided no response to this inquiry. The Plaintiffs asked the Defendant to continue to provide them with reasonable habitable accommodations while their home was being repaired. The Plaintiffs further requested that the Defendant arrange for them to stay in the current rental accommodation. The Defendant refused the Plaintiffs’ request and told the Plaintiffs to check into a hotel, necessitating the Plaintiffs move all of their belongings, including those purchased in anticipation of the ultimate return to their home, to their hotel. The Plaintiffs and their 2 adult children were forced to reside in a hotel for at least 17 days from on or about January 19, 2016 to on or about February 4, 2016, during which time the Defendant refused to provide any meal or laundry allowances. The hotel rooms did not have kitchen/kitchenette nor laundry facilities. The Defendant advised the Plaintiffs that it would not reimburse the Plaintiffs for the cost of meals and laundry. Also, the Defendant provided only two hotel rooms for the Plaintiffs and their two adult children. This is not the “normal standard of living” to which they were accustomed. It was also clearly an unnecessary act by the Defendant, causing the Plaintiffs additional work and stress during the displacement from their home by forcing them to move yet another time and settle into new and deficient accommodations.

[13] The insurer’s representative deposed that “this is the first I have heard of any such claim” and that “no claim for reimbursement of meals or laundry had been made before receipt of the claim”. She deposes that the insurer has no knowledge of the amounts and particulars of the claim.

[14] This claim is also pleaded with sufficient particularity to allow the insurer to plead and determine what needs to be explored during discovery.

[15] (d) With respect to paragraph 14, the amounts and particulars of the “expenses in changing accommodations” for which the Plaintiffs allege that the Defendant “should be held responsible”;

Paragraph 14 provides:

The Defendant did not reimburse the Plaintiffs for any moving expenses they incurred when they moved from accommodation to accommodation after the fire. The Plaintiffs were forced to move four times after the fire. First from their home to the first rental accommodation, then again to the second rental accommodation, then, as described above, a third move into a hotel and then finally from the hotel back into their home. The Plaintiffs incurred significant expenses in changing accommodations on numerous occasions after the fire for which the Defendant should be held responsible. The Plaintiffs were unable to maintain any reasonable standard of normal living after the fire as a result of the Defendant’s actions.

[16] Again, the insurer’s representative deposes that the insurer has no knowledge of these claims since, she submits, all claims for additional living expenses have been paid. Again, this claim is pleaded with sufficient particularity to allow the insurer to plead and determine what needs to be explored at discovery.

[17] (e) With respect to paragraph 15, the amounts and particulars of the cost of assembling furniture claimed by the Plaintiffs;

Paragraph 15 provides:

The Plaintiffs also requested financial assistance with the assembly of their replaced furniture. The Defendant steadfastly refused to provide any such assistance nor would it reimburse the Plaintiffs for cost they incurred in hiring third parties to assemble their furniture. The Plaintiffs spent dozens of man-hours assembling their furniture. The Plaintiffs were significantly delayed in returning to their normal standard of living after the fire because of the Defendant’s refusal to pay the aforementioned cost.

[18] Again, the insurer’s representative deposes that the insurer has no knowledge and that no claim for reimbursement had been made prior to delivery of the claim. Again, this claim is pleaded with sufficient particularity to allow the insurer to plead and determine what needs to be explored at discovery.

[19] (f) With respect to paragraph 24, the amounts and particulars of each Plaintiffs’ claim for alleged “mental, physical and psychological harm” and “mental distress, emotional harm and loss of reputation”;

Paragraph 24 provides:

The Defendant simply does not seem to care what effect its actions or inaction are having on the Plaintiffs. The Plaintiffs have suffered mental, physical and psychological harm as a result of the Defendant’s refusal to reimburse the Plaintiffs and the manner in which the Defendant has investigated the Plaintiffs’ claim under the Policy. The Plaintiffs are therefore entitled to damages form [sic] the Defendant for mental distress, emotional harm, and loss of reputation that the Defendant has caused them.

[20] As before, the insurer’s representative deposes that the insurer was not aware of any such claim or allegation before delivery of the claim and, therefore, has no knowledge.

[21] In Phillips v. Inco Ltd., [1983] O.J. No. 2105, Master Peppiatt was faced with a demand for particulars in response to a pleading that a plaintiff had suffered losses including “psychological loss”. At para. 9 the Master stated:

Mental suffering, like physical suffering and personal injury actions, is extremely difficult to describe within a pleading. Necessary details can be elicited on examination for discovery. It would not be improper for a plaintiff to go into some detail on such matters in his statement of claim if so advised but I do not think that the lack of detail in the context of this particular action makes it impossible for the defendant to plead.

[22] I agree with the Master. While more detail would be helpful the lack of detail does not make it impossible for the defendant to plead.

[23] (g) With respect to paragraphs 1(c) and 27(a), the identity of the specific chattels for which replacement cost is claimed that have actually been replaced, when the replacement occurred, and the amount paid to replace each chattel,

Paragraph 1(c) and 27(a) provide:

1(c) Damages for breach of contract and/or the Defendant’s breach of its obligation of good faith based on the replacement cost of the property (contents) owned by the Plaintiffs which were damaged by the fire in question in the amount of $300,000.00, the details of which have already been provided to the Defendant;

27 The Plaintiff has suffered the following damages as a result of the Defendant’s negligence, breach of the obligation of good faith and breach of contract;

a. The Plaintiffs lost a significant amount of property in the fire in question for which it has not been reimbursed by the Defendant. The replacement costs of the property is approximately $300,000.00.

[24] This issue, based on the material filed and the argument, is the insurer’s major concern.

[25] The adjuster deposes that the proof of loss submitted in March 2017 claimed replacement for 1,553 items totaling just under $300,000. Receipts were submitted but, according to the adjuster, no attempt was made to correlate the receipts with the items on the proof of loss. The plaintiffs were interviewed by an investigator in the presence of their counsel and admitted that some items listed in the proof of loss had not been replaced. Subsequent investigations by the insurer noted that some of the items that the insurer had made payment for later had the purchases reversed by the store. Counsel for the insurer requested that the plaintiffs identify what items have been replaced and correlate those items to the receipts previously submitted.

[26] The proof of loss form asks for a description of the property, the location of the purchase, the date of purchase, the approximate original purchase price, the replacement or repair cost, the amount of depreciation, and the amount claimed. The schedule completed by the insured, describes the property and identifies the estimated replacement cost, the supplier, and the amount claimed under the policy. On the material provided to me it does not appear that the proof of loss was rejected. Now the insurer is asking that items be matched to receipts. While it would appear that such exercise is necessary it does not appear to be a requirement under the proof of loss. The insurer proceeded to interview the insureds about the proof of loss. This interview does not appear to be an examination under oath under the policy. The obligation to prove the claim is upon the plaintiffs. The plaintiffs will have to satisfy the trier of fact that the item has been lost, replaced, and not reimbursed. The question is whether, through a demand for particulars, plaintiffs have to do this at the pleading stage.

[27] While I agree that it would be preferable to have the plaintiffs do this sooner rather than later as this would narrow the issues and perhaps lead to an earlier resolution, this is information that the insurer does not require to plead. Through the pleading and their own investigations, the insurer has sufficient particulars of the claim to plead.

[28] (h) With respect to paragraph 27(b), the amounts and particulars of the special damages claimed.

Paragraph 27(b) provides:

The Plaintiff has suffered the following damages as a result of the Defendant’s negligence, breach of the obligation of good faith and breach of contract;

b. The Plaintiffs have also incurred special damages, the details of which will be supplied at a reasonable time before trial.

[29] I agree that there is insufficient particularity to plead to subparagraph (b). Accordingly, particulars of this claim shall be produced within 30 days failing which subparagraph (b) will be struck.

Costs

[30] The plaintiffs have been substantially successful in this motion. If costs are not agreed to then the plaintiffs shall submit their costs submissions limited to three pages plus costs outline plus supporting material within 30 days from the release of these reasons. Thereafter, the defendant may deliver its costs submissions within 10 days from receipt of the plaintiff’s submissions subject to the same restrictions on length. If necessary, the plaintiff may reply within 10 days.

[31] If costs submissions are not received within 30 days then costs will be deemed settled.

“Original signed by”____

The Hon. Mr. Justice W.D. Newton

Released: March 8, 2018