COURT FILE NO.: CV-13-3662-00
DATE: 20180208
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HALINA CZAJKA, Plaintiff
AND:
COACHMAN INSURANCE COMPANY, Defendant
BEFORE: Justice Irving André
COUNSEL: I. Book, for the Plaintiff
S. McGarry, for the Defendant
HEARD: January 17, 2018
ENDORSEMENT
[1] The defendant company, Coachman Insurance Company (“Coachman”), brings a motion for an order that Ms. Czajka provide answers to undertakings. Ms. Czajka also brings a motion for an order that the defendant provide a copy of the fire investigation that is the subject of the legal action between the two parties.
Background Facts
[2] On May 17, 2009, a fire substantially damaged Ms. Czajka’s home. The fire occurred after extensive and costly renovation of the home a few years earlier.
[3] Ms. Czajka subsequently filed an insurance claim with Coachman. She sought compensation on a replacement cost basis in the amount of $399,740.55 for the home and $322,617.45 compensation for the contents of her home.
[4] Coachman questioned the validity of Ms. Czajka’s claim and launched an investigation of the fire as a suspected arson. The company retained the services of an investigator, Jennifer Perkman, to investigate the fire. The Peel Regional Police Force subsequently obtained a search warrant to obtain Ms. Perkman’s file and then charged Ms. Czajka with arson. However, they subsequently withdrew the charge one year later.
[5] In an examination for discovery, Ms. Czajka refused to answer a number of questions relating to her renovation of her home before the fire, her medical conditions, some of the contents of the home, and the sale price of the home following the fire. She gave a number of undertakings which, according to Coachman, she failed to provide answers to. Prior to the hearing of this motion, counsel for both parties narrowed the number of undertakings which remained in dispute to five.
Analysis
[6] This hearing raises two issues, namely:
Should Coachman disclose the police investigation to Ms. Czajka?
Should Ms. Czajka provide answers to her undertakings?
Issue No. One: Should Coachman disclose the police file to Ms. Czajka?
[7] Coachman’s counsel conceded that his client should disclose the results of the police investigation to Ms. Czajka. However, this disclosure is not limited to the results of the police investigation for the following reason. Ms. Czajka contends that her arrest and arson charge were instigated or orchestrated by Coachman as a cynical attempt to avoid its obligation to compensate her for the loss caused by the fire. If successful in the litigation, she will be seeking punitive damages against Coachman for having her charged with arson. To that extent, Ms. Perkman’s entire file, the search warrant sought by the police to obtain the file and the “Information to Obtain” (“ITO”) the file are all relevant to the litigation and should be disclosed.
[8] In my view, Coachman should disclose the police file, including the search warrant and ITO, and the entirety of Ms. Perkman’s file to Ms. Czajka. These documents may contain information that may shed light on whether Ms. Perkman played any role in Ms. Czajka being charged with arson.
Issue No. Two: Should Ms. Czajka be ordered to provide answers to her undertakings?
[9] Each of the impugned undertakings will be addressed in turn.
(1) Coachman seeks the name of the contractor who Ms. Czajka hired to renovate her home in 2006.
[10] Ms. Czajka’s counsel submits that this information is not relevant given that an umpire has already, on behalf of both parties, agreed to assess their claims regarding repairs to the residence. The quantum of repairs is not in issue and therefore, the name of the person who did the renovations to the home is irrelevant.
[11] To the extent that the parties have agreed on the value of damage to the home, as opposed to value of the damage to the contents of the home, the identity of the person who did the renovations is not relevant to Coachman. Accordingly, it is unnecessary for Ms. Czajka to answer this undertaking.
(2) Sale Price of Ms. Czajka’s home.
[12] There is no reason why this information has not been disclosed. It is part and parcel of the information regarding Ms. Czajka’s relevant financial information. Indeed, Ms. Czajka’s counsel has agreed to provide Coachman with this information.
(3) Coachman wishes to know whether Ms. Czajka’s evidence has changed between her first and second discovery regarding where the chandelier was at the time of the fire.
[13] Ms. Czajka’s evidence on the position of the chandelier is relevant given that her credibility will be an issue in the trial scheduled for May 2018.
[14] Ms. Czajka’s counsel concedes that this information is relevant and therefore should be disclosed. He indicated to opposing counsel that Ms. Czajka’s present position on this issue is that the chandelier in question was not in the residence at the time of the fire.
(4) Name of doctor who treated Ms. Czajka for a reported brain injury.
[15] While being cross-examined during a discovery hearing, Ms. Czajka maintained that she could not remember certain details because of a prior brain injury. She refused to provide the name of the doctor who treated her for this injury.
[16] In my view, this information should be disclosed because it may have a bearing on Ms. Czajka’s overall credibility.
(5) Outstanding invoices related to kitchen renovations.
[17] Ms. Czajka indicated in discovery that the renovations to her home cost over $349,000. However, the parties have agreed on the amount of compensation for the damage to her home because of the fire. As a result, this information is unnecessary and does not have to be disclosed.
Conclusion
[18] Based on the above, I order that:
- Within thirty days of this order, the defendant Coachman Insurance Company must provide to the plaintiff, Halina Czajka, the Peel Regional Police file of its investigation of Ms. Czajka including, but not limited to:
a. The Information to Obtain a search warrant to obtain the file of Jennifer Perkman, who investigated Ms. Czajka’s compensation claim on behalf of Coachman Insurance Co.;
b. A copy of the search warrant executed at the offices of Ms. Perkman to obtain her file;
c. The entire contents of Jennifer Perkman’s file.
- Halina Czajka must provide the following information to Coachman Insurance Co. within fifteen days of today’s date:
a. The sale price of her home which was sold in 2011;
b. The name of the doctor who treated her previous brain injury.
Costs
[19] The plaintiff seeks costs in the amount of $7,223 on a partial indemnity basis if successful, while Coachman Insurance Company seeks costs in the amount of $1,000 on a similar basis.
[20] In determining the quantum of costs which may be considered fair and reasonable (see: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24), I take the following factors into consideration:
The defendant had some success in the matter.
The parties succeeded in resolving many of the issues prior to the hearing of the motion.
The plaintiff’s request to opposing counsel for production of the complete police file was not responded to for at least a year.
The production order had been the subject of a judicial order as early as September 24, 2012.
Much of the information sought by the defendant is contained in a financial report it prepared and filed on January 5, 2018.
The plaintiff’s counsel made repeated requests in 2017 to opposing counsel for a list of outstanding undertakings and refusals that counsel claimed he was entitled to.
The issues in this matter were not complex and did not require a significant amount of preparation or research.
[21] In my view, costs in the amount of $3,000 inclusive are fair and reasonable.
Order
[22] The defendant Coachman Insurance Company must pay Halina Czajka costs fixed at the amount of $3,000 inclusive, within 30 days of today’s date.
André J.
Date: February 8, 2018