COURT FILE NO.: 15-66873 DATE: November 27, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Doef AND: Hockey Canada et al

BEFORE: Master Marie Fortier

COUNSEL: Julie Mouris, for the Plaintiff, Neil Doef Otto Phillips, for the Defendant, Hockey Canada

HEARD: July 3, 2018

ENDORSEMENT

Motion

[1] This is a refusals motion brought by the plaintiff to compel the defendant Hockey Canada to answer questions and produce documents identified in the plaintiff’s refusals and undertakings chart.

Background

[2] The plaintiff, Neil Doef, is a former high-performance athlete and a former member of Hockey Canada. In December 2014, while participating in a World Junior A Challenge international hockey tournament organized and sanctioned by Hockey Canada, the plaintiff suffered serious injuries as a result of damage to his spinal cord. According to the Statement of Claim, within 365 days of the date of the accident, the plaintiff’s spinal cord injury resulted in quadriplegia.

[3] Hockey Canada procured insurance coverage for its members, including an AIG Insurance Company of Canada (“AIG”) Accidental Death and Dismemberment Policy (“AD&D Policy”) which was in place at the time of the plaintiff’s accident. The plaintiff made a claim under the AD&D Policy which provided coverage of $1,000,000 million for quadriplegia or paraplegia. AIG Insurance Company of Canada (“AIG”) denied his claim in November 2015 on the basis that under the policy limitation he was only entitled to a benefit of $30,000 for the loss of use of one leg. The plaintiff alleges that this was a breach of the AD&D Policy.

[4] The plaintiff started this action against Hockey Canada and AIG to recover compensation for past, present and future care costs. The action involves, among other things the proper interpretation of the AD&D Policy obtained by Hockey Canada for its members. It is also the plaintiff’s position that the AD&D policy is inadequate and he alleges that Hockey Canada owed him and other amateur hockey players a duty of care as well as a fiduciary duty to obtain adequate insurance coverage. The plaintiff alleges that Hockey Canada has failed to procure adequate insurance coverage for its members, thereby breaching these duties.

Advisements and Refusals

Claims Bordereaux (Advisement #1 Q: 245-247 – Plaintiffs’ Refusals and Undertakings Chart (“Chart”)

[5] The examination for discovery of Glen McCurdie, VP of membership services for Hockey Canada took place in May 2017. Mr. McCurdie acknowledged that as a result of lawsuits involving spinal injuries, Hockey Canada decided to procure insurance from the insurance market rather than self-insuring such claims. Hockey Canada also established a Risk Management Committee charged with overseeing its insurance program.

[6] During Mr. McCurdie’s examination for discovery, he disclosed the existence of documentation described as “claims bordereaux” from their insurers. A “bordereau” can be defined as a report used by insurance companies to provide detailed information on the claims history of the insured- it provides details on any losses and claims made, and what amount the insurer has paid out during this time period.

[7] Mr. McCurdie indicated that claims bordereaux are presented to the Risk Management Committee for review and analysis. The claims bordereaux would detail claims against the AD&D Policy, including the number of such claims and whether they involve spinal injuries. He also acknowledged that there were other reports, analysis and materials that had been submitted to the Risk Management Committee with respect to past claims.

[8] Hockey Canada initially refused to produce the claims bordereaux or answer questions related to other Hockey Canada member’s claims made against the AD&D policy. Hockey Canada took the position that the questions relating to the bordereaux were overly broad and irrelevant and the claims bordereaux contained highly confidential information, including matters covered by both litigation and settlement privilege.

[9] The plaintiff retained an expert, Michel Bryan, to provide an opinion on the issue of whether the AD&D policy was adequate and whether better insurance products would have been available. According to Mr. Bryan, claims bordereaux are regularly prepared in the course of business and are analysed by potential insurers to determine whether they provide appropriate coverage to prospective clients with respect to scope and cost of coverage. Mr. Bryan indicated that it is important to consider data relating to past claims asserted against the AD&D insurance policy as this information is highly relevant to the question of the adequacy of insurance coverage.

[10] Hockey Canada eventually produced redacted copies of the claims bordereaux. The redactions were said by the defendant to be necessary to protect the privacy of Hockey Canada’s membership. Names, together with dates of loss (which the defendant alleges could be correlated with injuries to identify Hockey Canada members) were redacted. Redactions were also made for claims arising after the time of the plaintiff’s incident. Hockey Canada argues that claims made after the date of the plaintiff’s injury are not relevant to the issue of Hockey Canada’s alleged standard of care in procuring insurance coverage prior to that date. The plaintiff argues that the information in the claims bordereaux pertaining to claims made after the date of his injury should not be redacted as they are evidence of post incident remedial conduct ( such as changes to coverage procurement or claims management practices etc.) and therefore relevant.

[11] The plaintiff seeks un-redacted copies of the claims bordereaux, with the exception of allowing the redaction of names of individuals.

[12] In my view, an un-redacted copy (omitting names) of the claims bordereaux documentation ought to be produced for the following reasons:

a) Litigation Privilege

[13] In my opinion, the claims bordereaux are not protected by litigation privilege. In order to claim litigation privilege over a document, it must be shown that the document was created for the dominant purpose of the litigation (*Blank v Canada (Minister of Justice)* 2006 SCC 39, [2006] 2 S.C.R.319 at paras. 59-61). In my view, the claims bordereaux have not been prepared for the dominant purpose of litigation. In fact, they were prepared in the ordinary course of business for insurance acquisition purposes and would have come into existence regardless of Mr. Doef’s action.

b) Settlement Privilege

[14] In my view, the claims bordereaux documentation is not protected by settlement privilege because it was prepared in the regular course of business and does not satisfy the three preconditions for this type of the privilege to apply. In particular,

i- It was not made with a litigious dispute in contemplation;

ii- It cannot be said to be communications made with the express or implied intention that they would not be disclosed to the Court in the event that negotiations failed; and

iii- The purpose of this documentation was not to effect a settlement (*Sable Offshore Energy Inc. v. Ameron International Corp.*, 2013 SCC 3, [2013] 2 S.C.R. 623 at para. 13.).

c) Remedial conduct

[15] In my opinion, the information contained in the claims bordereaux after the date of the plaintiff’s injury may be evidence of subsequent remedial conduct.

[16] Evidence of subsequent remedial conduct has been found to be admissible at trial and may properly be elicited at discovery (see *Sandhu (Litigation Guardian of) v. Wellington Place Apartments*, 2008 ONCA 215, 291 D.L.R. (4th) 220 at para. 63 and *Tolko Industries Ltd. v. Railink Ltd.*, 2003 ABQB 349, 333 A.R. 270, aff’d 2003 ABCA 332, 346 A.R. 78. at para. 20).

[17] In Sandhu, the child plaintiff lived with his family in an apartment building rented from the defendants. While visiting relatives who were tenants in the same building, the two year-old fell five stories through a broken window and suffered significant injuries. A window screen in the apartment was broken, and the window did not have a child safety lock. Although the tenants complained to the property managers, the window was not repaired. The defendant fixed the window screens and child safety locks throughout the apartment building immediately after the accident. The trial judge admitted evidence of the defendant’s remedial conduct and gave instructions regarding this evidence to the jury. The defendant appealed. The Court of Appeal held that the evidence of remedial conduct was relevant and admissible on the issue of standard of care, although not necessarily of liability. Evidence must first be considered for its relevance, then any policy arguments which may apply to exclude the evidence will be considered. (Sandhu at paras. 54-63).

[18] Similar reasoning was applied to questions and productions at discovery in Tolko Industries. In Tolko Industries, Slatter J. found that questions regarding remedial conduct and requests for production directed at eliciting this evidence should be allowed provided that the evidence is relevant and material. It is then for the trial judge to decide if the evidence is admissible and to consider the public policy arguments. (Tolko Industries at para. 20).

[19] In the present case, the information contained in the claims bordereaux detailing claims against the AD&D policy after the date of the incident may provide evidence of remedial conduct in the sense of Hockey Canada taking steps to evaluate the adequacy of their insurance coverage. In his examination for discovery, Mr. McCurdie indicated that Hockey Canada, at the request of the Risk Benefit Committee, had been looking at ways to increase their paralysis benefit within their AD&D policy. In my view, this evidence is relevant and material as it may relate to the duty of care and fiduciary duty owed by the defendant to the plaintiff and other amateur hockey players to obtain appropriate insurance coverage for their needs and ought to be produced. It would be for the trial judge to decide whether the evidence is admissible and to consider any public policy arguments.

Reports and Analyses (Advisement #2 Q: 287 - Chart)

[20] The Defendant has agreed to answer the undertaking reframed as follows: Hockey Canada is to provide reports and analyses that have been submitted to the committee from 2009 to 2015.

Reports relating to greater coverage (Advisement #3 Q496-508 and Undertaking #14 Q: 509-510 - Chart)

[21] In answer to its undertaking to provide documentation relating to advice on greater coverage under the AD&D Policy, Hockey Canada provided redacted documents. Hockey Canada argues that the redactions were used to protect litigation and settlement privilege, the privacy rights of unnamed parties and to exclude irrelevant portions. I do not agree. The redacted documents were not created for the dominant purpose of litigation and do not meet the criteria for settlement privilege. Rather, the documents were produced for review and analysis by the Risk Management Committee and other staff at Hockey Canada who manage the insurance portfolio. Accordingly an un-redacted copy shall be produced with the exception of redacting the names of individuals.

Adequacy of Coverage (Refusal #2 Q: 259 – Chart)

[22] The defendant has agreed to answer the question reframed as follows: Have you had similar instances between 2009 and 2014 where claims have been made relating to spinal cord injuries where the coverage has been limited to the $30,000 cap?

Privacy Refusals (Refusals # 1 Q: 248-250; # 4 Q: 393-397; #5 Q: 398-399; #6 Q: 399; #7 Q: 402-407; #8 Q: 421-422; #9 Q: 425-427)

[23] The “Privacy Refusals” relate to information and documents sought by the plaintiff regarding five athletes who are non-parties to this proceeding. In particular, B.N. (refusal #10), M.E. (refusals # 4, 5, and 6), T.N. (refusal #7), B. P. (refusal #8) and A. T. (refusal #9).

[24] The defendant argues that the information sought is of a confidential and sensitive nature and the non-parties must be given notice of the motion as they may be affected by the order sought. I agree. In my view, notice pursuant to r. 37.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, is required so that the affected parties are provided with an opportunity to make submissions and to advise the court of any concerns they may have concerning disclosure of their personal health information ( see [Meuwissen v. Perkin, 2011 ONSC 3426, 2011 O.J.2627 at paras. 34-35). Accordingly, each of the above non-parties must be served if the plaintiff wishes to pursue the proposed disclosure of information related to them.

Disposition

[25] For the reasons outlined above, the court orders as follows:

a) The defendant shall produce un-redacted copies (with the exception of redacting the names of individuals) of the claims bordereaux within 30 days of the date of this order.

b) The defendant shall answer the undertaking on “Reports and Analyses” (see para. 20 above) within 30 days of the date of this order.

c) The defendant shall produce un-redacted documents related to greater coverage as outlined in para. 21 above within 30 days of the date of this order.

d) The defendant shall answer the question regarding adequacy of coverage (see para. 22 above) within 30 days of the date of this order.

e) If the plaintiff seeks to pursue disclosure of information and documents relating to the non-parties listed in paragraph 23 above, the plaintiff shall serve the non-parties with the notice of motion pursuant to r. 37.07 (1).

f) As there has been divided success on the motion, there shall be no costs ordered.

Master Fortier