Court File and Parties
Court File No.: CV-15-6199
Ontario Superior Court of Justice
Endorsement
Plaintiffs: ALYKHAN KANANI a person under a disability by his Litigation Guardian Gisele Kanani, Gisele Kanani, Litigation Administrator for the Estate of AZADALI KANANI, GISELE KANANI and SHAHEEDKHAN KANANI
Counsel: Almeda Walbridge
Defendants: ECONOMICAL INSURANCE COMPANY, BRIAN CLIFFORD, TRACY BROSS, PEGGY KNOX, HELEN BAILEY, LINDA WATT, MARIE YEE, ACCLAIM DISABILITY MANAGEMENT INC., ANNE DESJARDINS, CATHY PRIOR, CATHY TAIT, THE PUBLIC GUARDIAN AND TRUSTEE, VANI SANTI, ELIZABETH PROBIZANSKI, ROXANNE MAYER VARCOSE, ANDREA WATSON, DAN SKWAROK, MURRAY MISKIN, and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL
Counsel for Economical Mutual Insurance Company, Brian Clifford, Tracy MacDonald (Bross), Peggy Knox, Helen Bailey, Linda Watts and Marie Yee: Helen D. K. Friedman
Heard: September 28, 2018
[1] The Plaintiffs brought a motion seeking the redacted notes and reserve information of Economical Mutual Insurance Company (“Economical”), supported by the Affidavits of James Wallbridge, and the expert Accident Benefit Claims Specialist Phyllis Bergmans, and Forensic Investigator Chris Pierre. That motion was returnable on June 7, 2018 and is adjourned to a date to be determined (the “Refusals motion”); tentatively January 29, 2019.
[2] This preliminary motion by these seven Defendants seeks an order to strike the Affidavits of Chris Pierre (the “Pierre Affidavit”) and Phyllis Bergmans (the “Bergmans Affidavits”), and portions of the Affidavit of James Wallbridge (the “Wallbridge Affidavit”), on the Refusals motion of the Plaintiffs. The Refusals motion seeks answers to the refusals arising from the examination for discovery of the Defendants Economical and Brian Clifford, Tracy Bross, Helen Bailey, Peggy Knox, Linda Watts and Marie Yee (the six “Economical Defendants”).
[3] These Defendants seek to strike this evidence filed by the Plaintiffs in support of the Refusals motion; a motion that these litigants agree I should hear as soon as possible. This preliminary motion therefore would have no impact on either the yet unscheduled summary judgment motion filed by the six individual adjusters or on the admissibility of any such evidence at the eventual trial now scheduled to begin in May, 2019. The relief sought in this preliminary motion applies only to the Refusals motion that I am expecting to commence on January 29, 2019.
[4] There has been no cross-examination on these Affidavits which are the subject matter of this preliminary motion, however it has become clear that my determination on this preliminary motion will definitively have an impact on the scope, type and volume of documentation that Economical provides in its response to the Refusals motion.
[5] With respect to the Pierre Affidavit, notwithstanding that the Factum of the Plaintiffs outline in paragraphs 107 to 127 their position that all of the impugned Affidavits should be admitted, and more particularly at paragraph 110 to 115 for the Pierre Affidavit, Counsel for the Plaintiffs advised this Court during the hearing of the motion (after the submissions of Counsel for these Defendants) that the Plaintiffs were withdrawing the Pierre Affidavit from the Refusals motion. It was indicated at that time that Counsel for the Plaintiffs did not want Chris Pierre to be cross-examined on his Affidavit. The Plaintiffs however maintain their position with respect to the Bergmans Affidavits and the Wallbridge Affidavit.
[6] In an abundance of caution, and so as not to expose myself to having pre-judged the Refusals motion perhaps necessitating another judge having to hear that motion, I have decided to only release my written reasons for my determination on this preliminary motion once I have heard the Refusals motion. If required, I remain prepared to assist and/or direct Counsel with an appropriate timetable, in order that the Refusals motion be ready to proceed by January 29, 2019.
[7] On this preliminary motion, for written reasons to be provided, I therefore make the following Orders:
- An order striking the Affidavit of Chris Pierre and the Exhibits thereto sworn July 7, 2018 on the motion record of the Plaintiffs on the Refusals motion;
- An order striking the Affidavits of Phyllis Bergmans and the Exhibits thereto sworn June 29, 2018, and September 19, 2018 on the motion record of the Plaintiffs on the Refusals motion; and
- An order striking evidence at paragraphs 4, 7, 59, 120, 121, 157, 158, 159, 160, 161, and 162 of the Affidavit of James Wallbridge and the related Exhibits thereto sworn June 26, 2018 on the motion record of the Plaintiffs on the Refusals motion.
[8] Success in this preliminary motion appears to have been somewhat divided. Since I am hearing the Refusals motion, my inclination is to reserve on the issue as to the appropriate costs award for this preliminary motion determination until after I have heard and decided on the Refusals motion. If these litigants are unable to agree to such a delay in making their costs submissions for this preliminary motion, I will consider written submissions on whether I ought to proceed otherwise within the next seven days.
Released: December 10, 2018 The Honourable Mr. Justice David J. Nadeau