COURT FILE NO.: CV-16-560551
DATE: 2020 02 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DYLAN JONES, Plaintiff
- and -
CHRISTOPHER MCGUIRE and HOME SERVICE & REPAIR SPECIALIST INC., Defendants
BEFORE: Master Todd Robinson
COUNSEL: E. Faion, for the defendants / moving parties
F. Piazza (student-at-law), for the plaintiff
HEARD: February 5, 2020
REASONS FOR DECISION
[1] The defendants move for an order dismissing the plaintiff’s action for failure to answer proper questions at his examination for discovery or, in the alternative, for an order that the plaintiff re-attend for examination at his own expense to answer all outstanding undertakings and all proper questions refused within 30 days. In bringing this motion, the defendants moved on a total of 6 refusals, 1 question taken under advisement (now deemed a refusal), and 7 undertakings as set out in the affidavit evidence and the defendants’ refusals and undertakings chart.
[2] Prior to the hearing of the motion, the parties were able to resolve all undertakings, the under advisement, and most of the refusals or otherwise agree they had been satisfied. Only three of the refusals remain in dispute. Costs of the motion in respect of the resolved matters also remains to be determined. Accordingly, argument proceeded solely in respect of the three refusals maintained by the plaintiff, all of which were given to questions relating to an adverse costs insurance policy (“ACP”).
[3] For the reasons that follow, I dismiss the defendants’ motion in respect of those three refusals.
Background
[4] This action arises out of a pedestrian-motor vehicle accident occurring on October 7, 2014. The plaintiff was crossing Danforth Avenue at the intersection of Leyton Avenue when he was struck by a vehicle. Christopher McGuire was operating the vehicle, which was owned by Home Service & Repair Specialist Inc. Liability and damages are in dispute.
[5] The examination for discovery of the plaintiff took place on February 26, 2018. Various undertakings were given, several questions were taken under advisement, and a number of questions were refused.
Analysis
[6] At the examination, plaintiff’s counsel refused all questions regarding the existence and particulars of any ACP. On January 23, 2020, apparently the same day as the defendants’ motion record was served, plaintiff’s counsel wrote to defendants’ counsel and provided answers and positions regarding a number of the refused questions. In that letter, the existence of an ACP was confirmed.
[7] Only three refusals remain in dispute, all relating to that ACP, namely:
(a) To provide a copy of the ACP;
(b) To advise whether the ACP directs that the payments will be made directly to the law firm representing the plaintiff in the event of an adverse result at trial, rather than to the defendants; and
(c) To advise whether or not the plaintiff has obtained a certificate of independent legal advice with respect to the outcome at trial regarding whether the ACP would first reduce plaintiff’s counsel’s own law firm’s costs and disbursements and then the defendants’ costs and disbursements and, in particular, if the plaintiff has received independent legal advice about his own personal exposure in that event.
[8] The plaintiff maintains all three refusals on the basis of solicitor-client privilege, since the ACP is a blanket policy in the name of the law firm and not in the name of the plaintiff. The decisions in Jamieson v. Kapashesit, 2017 ONSC 5784 and Robichaud v. Constantinidis, 2020 ONSC 310 are primarily relied upon the defendants, both of which specifically address production of an ACP held by a law firm rather than the plaintiff.
[9] The defendants advance a number of arguments for why production of the ACP should be made in this case, including the following:
(a) Rule 30.02(3) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) has historically been applied to require disclosure of insurance policies and should be interpreted to require disclosure of ACPs, which meet the definition of “insurance” under the Insurance Act, RSO 1990, c I.8;
(b) Disclosure of the existence of an ACP has been previously held to be required at the same stage that disclosure of insurance by a defendant is required under Rule 30.02: Abu-Hmaid v. Napar, 2016 ONSC 2894;
(c) An ACP allowing a plaintiff to participate in and pursue an action has been held to be captured by Rule 30.02(3), and production was ordered to allow the defendants to inspect the ACP: Fleming v. Brown, 2017 ONSC 1430;
(d) Rule 31.06(4) of the Rules further permits a party to discover on the existence of any insurance policy under which an insurer may be liable to satisfy all or part of the a judgment (or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment), the amount of money available under the policy, and any conditions affecting its availability. In support of this position, the defendants rely on the decision in Scaffidi-Argentina v. Tega Homes Developments Inc., 2019 ONSC 4170;
(e) UK case law further supports disclosure of ACPs as relevant and producible; and
(f) Some ACPs cover the plaintiff from costs, other ACPs cover the plaintiff’s disbursements, and some ACPs are a blend of both, which can give rise to a conflict of interest between a plaintiff and her/his lawyer. Production of the ACP would allow confirmation that there is no conflict of interest between the plaintiff and his lawyers.
[10] Other than Abu-Hmaid and Fleming, none of the Canadian cases relied upon by the defendants deal with ACPs. In Abu-Hmaid, Master Short only required disclosure of the existence of an ACP, which the plaintiff has done here. In Fleming, while production for inspection of the ACP was ordered, the subject ACP was held in the name of the plaintiff, not the law firm representing the plaintiff. In my view, it is also significant that the application of Rule 30.02(3) to an ACP was conceded by the plaintiff: see Fleming, supra at para. 29.
[11] Rule 30.02(3) and Rule 31.06(4) deal with discovery of potentially responsive insurance policies at different stages. Rule 30.02(3) addresses disclosure at the documentary production stage and Rule 31.06(4) deals with the extent to which an adverse party may ask questions during an oral discovery. Production of ACPs held in the name of a law firm was specifically considered by both Justice Corbett in Jamieson and Justice Schabas in Robichaud. In Jamieson, Justice Corbett distinguished Fleming and held that the ACP in the name of the plaintiffs’ law firm was not producible under Rule 30.02(3) since it was not in the name of the plaintiffs, the ACP did not reference any individual client or collective of clients, and the law firm was not a “party” as defined in the Rules. Justice Corbett held at para. 22:
This case can be distinguished from Fleming as the policy is that of Orendorff & Associates and not the plaintiffs. Given the terms of the policy and its application to other clients, the issue of solicitor/client privilege arises. The ACP in this case does not lie within the possession, control or power of a party. In view of this, the motion is dismissed.
[12] In Robichaud, Justice Schabas concurred with the approach in Jamieson, holding as follows at paras. 44-45:
[44] Counsel for the plaintiff objects on the grounds that the policyholder is the law firm, not “a party”, and argues that production would breach solicitor-client privilege. Mr. Capara has provided to the defendant’s counsel a redacted copy of the policy declaration page confirming that the policyholder is Caprara Barristers.
[45] I agree with counsel for the plaintiff. As was the case in Jamieson v. Kapashesit et al., 2017 ONSC 5784, where the policyholder is the law firm and not the “party”, Rule 30.02 does not apply, and I decline to order production.
[13] In this case, the letter from plaintiff’s counsel dated January 23, 2020 confirms that “the plaintiff does have adverse costs protection”, but the same letter also confirms that the ACP is held in the name of the law firm, not the plaintiff. The letter specifically provides as follows:
[M]y understanding is that I am not obligated to produce a copy of the insurance policy, as the policy at hand is a blanket insurance policy in the name of our law firm, and not individual plaintiffs.
[14] The plaintiff argues that disclosure of the ACP or its terms, which covers all clients of the plaintiff’s law firm and not simply the plaintiff, would constitute a breach of solicitor-client privilege, as was found in Jamieson. It is argued that the defendants would have insight into legal strategy used by the law firm, including risk allocation. The defendants respond by arguing that the position on solicitor-client privilege cannot be tested or assessed since the ACP has neither been produced nor provided to the court for review.
[15] In Jamieson, Justice Corbett relied on specific terms of the subject ACP in reaching his decision, although it is unclear if the ACP was produced to the court for inspection or if there was evidence regarding certain terms. In this case, other than a statement that the ACP is a “blanket” policy, there is no evidence of any terms in the ACP. The plaintiff’s factum includes a statement that the ACP contains an acknowledgement between the law firm and the insurer as to why risk may change in the course of litigation, and how that risk is acknowledged between the firm and the insurer, but that statement is not substantiated by any evidence filed on the motion.
[16] The argument advanced by the defendants is essentially that the court should not dismiss the motion based solely on the plaintiff’s position that the ACP is in the law firm’s name. They argue that the plaintiff is a “party” as defined in the Rules and appears to be an insured under the policy, given the response in the letter from plaintiff’s counsel that “the plaintiff does have adverse costs protection”, which suggests the plaintiff is an insured under the ACP. The defendants further argue that the ACP is an insurance policy captured by Rule 30.02(3), and that the ACP ought reasonably to be within the control or power of the plaintiff as an insured. The defendants argue that case law has gone down a “rabbit hole” of focusing on the identified policyholder, which is inconsistent with the Rules.
[17] In my view, there is merit to the distinction argued by the defendants between the policyholder of an insurance policy, the named insured under that policy, named additional insured, and potentially unnamed additional insureds. Those distinctions do not appear to have been argued before the court in either Jamieson or Robichaud. I also agree that, while the declarations page for the ACP in evidence (which appears to be partially redacted but is not stated to be so) confirms that the policyholder of the ACP is the law firm, there is no evidence of how insureds are defined, what persons are covered or how coverage works under the ACP.
[18] However, my views on the merits of these nuanced arguments do not change the disposition of this motion. I am bound by Jamieson and Robichaud. I do not find any facts in this case upon which to distinguish either of those decisions. The facts of this case are substantially the same. The ACP is held in the name of the law firm, not the plaintiff, is a blanket insurance policy that, per the declarations page, continues for an indeterminate period into the future, and appears to apply to the personal injury caseload of all the lawyers in the law firm. As extracted above, Justice Schabas expressly held that “where the policyholder is the law firm and not the ‘party’, Rule 30.02 does not apply” (emphasis added). That is precisely the case here. The policyholder is the law firm, not the plaintiff.
[19] While the defendants argue that the timing of the motions in Jamieson and Robichaud is a material distinguishable fact, namely at the commencement of trial and during costs submissions following trial, I do not view the timing of the motions as being material to the determinations reached. Since I was directed to no decision of a judge in conflict with Jamieson and Robichaud addressing ACPs held in the name of a law firm, the plaintiff’s motion for production of the ACP must accordingly fail based on those decisions, by which I am bound.
[20] It follows that, if the motion fails on the first disputed refusal because the ACP at issue is not a policy producible under Rule 30.02(3), consistent with Jamieson and Robichaud, then the motion on the second disputed refusal for particulars of coverage payout under the ACP must also fail for the same reasons. While the language of Rule 31.06(4) is different than Rule 30.02(3), in my view, it would be inconsistent to find that the contents and amounts available under an ACP not captured by Rule 30.02(3), and thereby not subject to production, are still discoverable under Rule 31.06(4).
[21] The defendants made limited oral submissions on the third disputed refused question. In their factum, the defendants speculate that there could be a conflict of interest between the plaintiff and the plaintiff’s lawyers arising from the coverage terms of the ACP. The plaintiff argues that the question asked is a matter of solicitor-client privilege and was accordingly properly refused.
[22] In my view, issues of solicitor-client privilege are engaged by the question asked. Also, the form and extent of legal advice that the plaintiff has obtained regarding the ACP and his own personal exposure under the policy is irrelevant based on the pleadings. I was directed to no rule or any case law supporting that legal advice obtained on an insurance policy captured by Rule 30.02(3) (which the ACP is not for reasons outlined above) is properly discoverable. The question is also premised on speculation of the existence of a conflict of interest between the plaintiff and plaintiff’s counsel without any factual foundation. I am satisfied the plaintiff’s refusal was proper.
Disposition
[23] For the foregoing reasons, I dismiss the defendants’ motion with respect to the three argued refusals.
[24] At the conclusion of argument, since the parties had not already exchanged costs outlines, I asked them to exchange and file their cost outlines so I could hear cost submissions in any event of my decision. The plaintiff had a costs outline. The defendants did not, but advised they sought $2,000 in costs. I was not prepared to entertain a request for costs absent a costs outline, which is mandatory from a party seeking costs in accordance with Rule 57.01(6). I accordingly directed that the plaintiff file his costs outline, but only serve it on the defendants once their costs outline had been served. The defendants were to serve and file their costs outline by February 7, 2020.
[25] Costs outlines should now have been exchanged. Both have been filed. Since both parties appear to be seeking their costs of the motion, if the parties are unable to resolve costs themselves, then the defendants shall deliver written costs submissions by February 25, 2020. The plaintiff shall deliver its responding submissions by March 10, 2020. The defendants shall deliver any reply regarding costs sought by the plaintiff by March 17, 2020. Costs submissions shall not exceed four pages for primary submissions and two pages for reply, excluding any offers to settle or case law. They may be submitted by email directly to me or via my Assistant Trial Coordinator with a scanned copy of proof of service. Original proof of service need only be filed if the court so directs. In the absence of receiving such written submissions, the parties shall be deemed to have agreed on costs.
MASTER TODD ROBINSON
DATE: February 10, 2020