Court File and Parties
COURT FILE NO.: 14-61290 DATE: 2019/02/08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ISMET HAJRIZI – Plaintiff v. THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, KEVIN HICKS, MARGARET DEMPSEY - Defendants
BEFORE: Mr. Justice C. MacLeod
COUNSEL: William N. Fuhgeh, for the Plaintiff Paul H. Auerbach, for the Defendant
HEARD: February 8, 2019
Endorsement
[1] This is a motion by the plaintiff with regard to refusals and undertakings arising from a discovery on June 6, 2017.
[2] The action itself arises from the cancellation of an automobile insurance policy. The plaintiff asserts that the actions of the defendant were unreasonable, unfair, in bad faith and a breach of the defendant’s obligations to the plaintiff. The plaintiff seeks damages and declaratory relief as a consequence of the wrongs allegedly done to him. Dominion of Canada General Insurance Company (“Dominion”) denies acting wrongfully and denies that the plaintiff is entitled to any relief.
Refusals
[3] Refusals 1 & 2 (Q. 16, pp. 10 & 11) relate to the timeline of the cancellation. The plaintiff wanted a copy of the draft and an electronic copy showing the date on which the cancellation letter was drafted. The plaintiff appears to believe the letter was backdated although that is not pleaded. The defendant has answered that they do not know when it was drafted but their position is that the policy was cancelled because there was no longer a vehicle to insure. The defendant has agreed to produce proof of the date the requested letter was sent. I will not order the production of meta-data.
[4] No. 3 is no longer in dispute. No. 4. (p. 21) was asking how the new premium was calculated had he renewed. In fact, his complaint is that Dominion had improperly characterized the first accident as an at fault accident. Questions about the “at fault” rating can and have been answered. The rating question need not be answered.
[5] No. 5 has now be answered – Rule 2 of the Financial Services Commission of Ontario Act [1] (“FSCO”) governs mid-term calculations. The answer is that Dominion believed there was no vehicle to insure. The defendant has undertaken to send a copy of the link to Rule 2.
[6] No. 7 asks for the contact information for Kevin Hicks. The defendant has provided the telephone number and his contact information which would be known to Margaret Dempsey. Both parties are obligated to provide the contact information of any witness they knew of but they cannot be ordered to produce information they do not have. See Rule 31.06(2).
[7] No. 9 (p. 68) requests documents regarding the property damage assessment for accident No. 1. There is no claim that this claim was underpaid. The plaintiff states that he wants to understand the chronology but questions about chronology were not asked. This question need not be answered.
[8] No. 10 and 11 asks Mr. Holland to comment on the Highway Traffic Act [2] acquittal and how the fault rules intersect with findings at trial. The question has effectively been answered and what happened at trial can be established by the plaintiff if he needs to do so. This question 10 need not be answered. No. 11 has been answered but the defendant shall confirm that information recorded by the officer was used in making the decision.
[9] No. 14 asks for documents relating to the July 4 and 19, 2012 claim application. This appears to be a request for the adjuster’s file. Although there is a “bad faith” claim, the bad faith alleged is the cancellation. The plaintiff does not allege that the amounts paid out were erroneous but only that fault was improperly assessed in the first claim. There is also a proportionality concern. I am not prepared to order this answer be answered.
[10] Question 17 and Question 18 asks about prejudice or negative effect from extending the time. This question need not be answered. If the question had been – what would you have done if you were told he was buying a new car, or was there any legal reason why you could not have held the policy open, that would have been a different question. This question as asked need not be answered.
[11] Question 19 asks when the plaintiff was first insured with Dominion. The defendant concedes that the plaintiff would have had the benefit of the accident forgiveness clause had the policy not be cancelled. The defendant will advise what the plaintiff’s rates were before the first accident.
Undertakings
[12] The rulings for the refusals and undertakings are recorded on the chart. The undertakings are resolved.
Costs of Abandoned Motion
[13] In 2017 the defendant indicated it would be bringing a summary judgment motion. This apparently resulted in ordering a transcript and work done to respond to the motion.
[14] The defendant had served a notice of motion returnable November 23, 2017, but never served materials and abandoned the motion on November 6, 2017. The date was secured in May but as noted, the record was never served.
[15] The plaintiff states that $5,786.16 for the transcript cost of $1,016.97 was incurred in responding to this motion.
[16] Even assuming the plaintiff thought the motion was proceeding, not all of the time apparently spent would have been thrown away only in response to the motion particularly because the supporting affidavit was never served. Much of the time spent recovering the merits and transcript cost are costs that would have been needed in any event.
[17] The defendant did not advise it was adjourning the motion nor did counsel for the plaintiff contact Mr. Auerbach to inquire about the status of it.
[18] I will award modest costs for having to diarize a date and to discuss the impact of summary judgment with the client but otherwise I do not accept that there are significant costs thrown away.
[19] The defendant shall pay costs of $800.00 which will be added to or offset against the costs of this motion.
[20] With regard to this motion, I would normally have awarded costs against Dominion because undertakings were only answered after the motion was served and because of the failure to provide a completed refusals and undertakings chart. On the other hand, the success on the argued refusals was modest to say the least.
[21] The defendant shall pay costs of this motion fixed at $500.00.
[22] In conclusion, the outstanding undertakings and the other information I have ordered, shall be answered within 30 days.
[23] The defendant shall pay costs of $1,300.00 as noted above.
[24] The rulings were set out in the Refusal and Undertaking chart which is not being reproduced.
Mr. Justice Calum MacLeod Date: February 8, 2019
COURT FILE NO.: 14-61290 DATE: 2019/02/08 ONTARIO SUPERIOR COURT OF JUSTICE
RE: ISMET HAJRIZI – Plaintiff v. THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, KEVIN HICKS, MARGARET DEMPSEY - Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: William N. Fuhgeh, for the Plaintiff Paul H. Auerbach, for the Defendant
ENDORSEMENT Released: February 8, 2019
[1] 1997, S.O. 1997, c. 28 [2] R.S.O. 1990, c. H.8