COURT FILE NO.: 13-56958
DATE: 20200911
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SUSAN TATARYN and SUSAN G. TATARYN PROFESSIONAL CORPORATION, Plaintiffs
-and-
AXA INSURANCE CANADA (now known as INTACT INSURANCE COMPANY OF CANADA), CHARLES McLEOD, IRVIN HOFFMAN and COHEN & LORD INSURANCE BROKERS LIMITED, Defendants
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Brian C. Elkin, for the Plaintiffs Christopher Reil, for the Defendant, AXA INSURANCE COMPANY (now Intact) Mark Charron, for the Defendant, CHARLES MCLEOD Pasquale Santini, for the Defendants, IRVIN HOFFMAN AND COHEN & LORD INSURANCE BROKERS LIMITED
ADDITIONAL ENDORSEMENT
[1] The parties appeared virtually before me on September 10, 2020, in order to settle the terms of the Order resulting from my earlier endorsement on motions brought by the parties (see Tataryn v. AXA Insurance Canada, 2020 ONSC 375).
[2] The parties agree on the wording of the draft Order except for paragraphs one and two, whether some of Mr. McLeod’s documents (and AXA’s) must be produced despite an appeal of my decision on this point by AXA, and for some timetable relief considering that the litigation of this action has been delayed.
[3] As indicated in my earlier decisions, this action relates to a dispute over insurance for damage to an Ottawa property. The plaintiffs’ house was the subject of two occurrences of water damage: December 12, 2010; and March 6, 2012. The first occurrence gave rise to a first and still unresolved action against AXA Insurance Canada. This second action incorporates both occurrences and is brought by the plaintiffs against their insurer, AXA now Intact; the independent insurance adjuster retained by AXA, Charles McLeod; and the plaintiffs’ insurance brokers, Irvin Hoffman and Cohen and Lord Insurance Brokers Limited. After the first occurrence of water damage, AXA agreed that the plaintiffs’ insurance policy provides insurance for the first loss, except for improvements required for bylaw compliance related improvements. AXA retained ClaimsPro as its agent to investigate and adjust the plaintiffs’ first loss and ClaimsPro appointed Mr. McLeod, who met with the plaintiffs. Some payments were made by AXA for the first loss, but the parties could not agree on the amount of the loss, and litigation is ongoing. For the second occurrence, AXA took the position that there was no insurance coverage, relying on an exclusion in the policy that provides that AXA does not insure loss or damage “occurring while the building is under construction”, and this second action was started by the plaintiffs.
[4] The motions heard on January 9, 2020, were decided essentially as follows:
a) The plaintiffs’ motions for better affidavits of documents and for additional examinations for discovery from the defendants, AXA and McLeod, were granted.
b) The plaintiffs’ motion that their property was not subject to the “building is under construction” exclusion relied upon by AXA was granted, such that this exclusion is therefore not applicable.
c) The defendant McLeod’s motions for summary judgment that (1) this action is statute-barred against him and (2) that this action be dismissed against him because of the absence of a duty of care and of a reasonable cause of action were dismissed on a without prejudice basis.
d) The defendants’, Irvin Hoffman and Cohen and Lord Insurance Brokers Limited motion for summary judgment that the plaintiffs’ action is stature-barred against them was dismissed without prejudice to that issue being revisited at trial.
e) The defendants’, Irvin Hoffman and Cohen and Lord Insurance Brokers Limited motion for summary judgment that the “building is under construction” exclusion does not apply was granted as I found that the building was not “under construction”, and that this exclusion relied upon by AXA therefore is not applicable.
[5] With regards to paragraphs one and two of the draft Order, the brokers, Cohen & Lord and Irvin Hoffman, want the Order to provide for the dismissal of the plaintiffs’ action against them with respect to the “under construction” exclusion that I found to be unavailable to the insurer. They ask that the following wording by added to those paragraphs: “and the action and crossclaims are dismissed in so far as it pertains to this exclusion”. The plaintiffs argue that the amended amended statement of claim alleges that the brokers failed to advise of the existence of the exclusion, and they want to be able to seek any damages that arise.
[6] Paragraphs 7, 18, and 24 of my earlier endorsement make it clear that I decided that the action and crossclaims are dismissed in so far as they pertain to this exclusion. Indeed, if the exclusion is not applicable it is irrelevant that the plaintiffs were not warned about it by their brokers. Furthermore, the plaintiffs may look to AXA who made the decision. The language suggested by the brokers shall be added to the draft Order.
[7] It is in the interests of justice that Mr. McLeod and AXA not disclose to the plaintiffs the documents covered by AXA’s appeal until the leave to appeal motion is disposed of because the Divisional Court will no doubt answer the question of whether there is a serious issue to be decided and because it otherwise appears that the balance of convenience and irreparable harm factors favour not disclosing these documents at least until the issue of leave is decided as this should not be a long delay. If leave to appeal is granted and if the parties then cannot agree on the timing of this disputed disclosure, then a motion seeking a stay pending appeal may be scheduled to decide this issue.
[8] The times to comply with undertakings, examine Mr. McLeod, and examine a representative of AXA are extended to dates to be agreed upon by the parties, likely after a ruling on the parties’ related appeal. However, the parties may return before me if they cannot agree on a revised schedule.
[9] The time to set this action down for trial is extended from August 30^th^ of this year to December 31, 2021.
[10] Costs were not raised or argued on this appearance and unless I receive written submissions on the costs of this appearance within the next 15 days, I will assume that these costs are to be in the cause.
Mr. Justice Pierre Roger
Date: September 11, 2020
COURT FILE NO.: 13-56958
DATE: 20200911
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SUSAN TATARYN and SUSAN G. TATARYN PROFESSIONAL CORPORATION, Plaintiffs
-and-
AXA INSURANCE CANADA, (known as INTACT INSURANCE COMPANY OF CANADA), CHARLES McLEOD, IRVIN HOFFMAN and COHEN & LORD INSURANCE BROKERS LIMITED, Defendants
BEFORE: Mr. Justice Pierre Roger
ADDITIONAL ENDORSEMENT
Roger J.
Released: September 11, 2020