Court File and Parties

Court File No.: CV-20-00084279-0000 Citation No.: Snagg et al. v. Makhoul, 2024 ONSC 3735

Superior Court of Justice

DEVONTE SNAGG, BY HIS LITIGATION GUARDIAN NIKKIE SNAGG, NIKKIE SNAGG and RITCHIE SNAGG, Plaintiffs v. HANNA MAKHOUL, Defendant

Reasons for Decision on Motion

Before: The Honourable Justice P. E. Roger

Heard: June 19, 2024, at Ottawa, Ontario (Orally)

Appearances: R. Duplantie, Counsel for the plaintiffs O. Guillaume, Counsel for the defendant

Reasons for Decision on Motion

ROGER, J. (Orally):

This is a motion by the defendant seeking an order that the plaintiffs answer their refusals at the cross-examination of their lawyer on April 25, 2024. At its crux, this motion is about whether the plaintiffs have to disclose and produce any applicable adverse costs insurance that could satisfy any part of a costs judgment against the plaintiffs in this action.

The plaintiffs rely on decisions from this court in support of their position that they do not have to disclose an adverse costs insurance policy that is in the name of the lawyer’s firm, even if it is applicable to the plaintiffs: Jamieson v. Kapashesit, 2017 ONSC 5784; Robichaud v. Constantinidis, 2020 ONSC 310; and James v. McGuire, 2020 ONSC 914. They argue that such a policy is not covered by the disclosure rules of civil procedure because it is not in the name of a party and not under a party’s possession, control or power as it is in the name of the law firm that act for that party. They argue that the defendant’s motion is excessive, unnecessary, and not proportionate and that such information is not relevant. They argue as well that the content of the policy is protected by lawyer-client privilege or litigation privilege.

The defendant argues that the three decisions referenced above were wrongly decided, and that the decision in Spencer v. Martin & Hillyer, 2023 ONSC 6353 is applicable and requires, subject to claims of privilege, that the policy be produced.

For reasons that follow, I agree with the defendant.

This is an action for personal injuries following a motor vehicle accident involving a young pedestrian. Liability and damages are in issue as are costs.

It is admitted by the plaintiffs’ law firm that the law firm has an adverse costs policy with the law firm as a named insured, and that this policy is applicable to the plaintiffs. I have reviewed the policy and subject to the submissions of counsel for the plaintiffs which were requested but not made today as counsel for the plaintiffs stated that they were not ready to make these submissions, at first glance I see nothing in the policy that could be protected by either lawyer-client privilege or litigation privilege. However, in fairness to the plaintiffs whose lawyers were apparently not prepared to argue the issue of privilege today, I will not rule on the issue of privilege at this time, that is whether there is any part of the policy that is protected by privilege, and will leave this issue to return before me if the parties cannot agree.

Rules 30.02(3) and 31.06(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are applicable to this motion. By their language, these Rules make it clear that they apply to “any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment”. Nothing in these rules limit the disclosure obligation to policies of insurance in the name of a party or over which a party has possession, control or power.

This makes sense because insurance policies often insure people that are not specifically named as a party to the policy. For example, an insured person loaning his or her car to a friend who is not otherwise insured. This driver, driving the car that was loaned to him or her, would be insured under the policy of the friend who loaned him or her the vehicle. Similarly, for accident benefits, Section 268 of the Insurance Act provides for accident benefits to be available to various people who are named in that section and who would not be named on the policy. Yet, such policies are regularly produced in motor vehicle actions despite the party not being named on the policy or not having possession or control of the policy. This is so because the rule is clearly applicable.

Indeed, the drafters of these rules were obviously aware of this and consequently drafted the disclosure rule to apply to “any insurance policy under which an insurer may be liable”.

Respectfully, the decision in Jamieson and the decisions that followed Jamieson do not explain why they reached this conclusion nor how lawyer-client privilege is applicable to prevent all disclosure.

Litigation privilege and lawyer-client privilege must be asserted by the party who raises this as an objection to producing the document and this must be proven by the party resisting disclosure. It is not clear in these decisions how that onus was met. Moreover, and in any event, if somehow privilege was established regarding a specific policy or specific parts of a policy, I do not see how this could prevent disclosure of information pertaining to the policy and required to be disclosed by the rules such as whether the policy is applicable to a party to satisfy any part of a judgment, what part of a judgment would the policy be applicable to, the amount of insurance available under the policy, all of which really relate to disclosure of the existence and content of the policy as per Rule 31.06, and disclosure of any conditions affecting the availability of such policy.

As well, if a claim of privilege is successfully established for any part of a policy, I do not see why the rest of the policy would not have to be disclosed as provided at rule 30.02(3).

Further, this motion is not excessive or out of proportion as it really deals with one issue, whether such a policy is producible.

Consequently, within the next 10 days, the plaintiffs shall disclose to the defendant:

a) the name of the applicable policy, its date and the name of the insurer; b) whether the policy is applicable to the plaintiffs and if so, how, and in which circumstances it is applicable to the plaintiffs; c) what is covered under the policy and whether costs are covered; d) the amount available under the policy; e) any restriction or condition affecting its availability; and, f) produce for inspection any portion of the applicable policy that they are prepared to produce. By that I mean that if they claim privilege over any portion, they may redact those portions and produce what they are prepared to produce.

If the plaintiffs claim privilege over any portion of the policy, either lawyer-client privilege or litigation privilege or other privilege, and if the parties cannot agree about this within the next 20 days, then this issue shall return before me for a decision whether any such portion of the policy is protected by privilege.

On the topic of costs, the parties agreed with my suggestion that there should be no costs for this motion considering the conflicting decisions of this court. Consequently, subject to the proviso that follows, there shall be no costs for this motion. However, as I explained to the parties, there is a proviso that if the parties return before me to deal with any issue of privilege, then the costs of today are reserved and may be dealt with when this issue of privilege returns before me. In other words, I may then decide to award the costs of today and the costs of the next appearance to the successful party at the next appearance. I do this specifically to encourage the parties to resolve this outstanding issue between them.

End of Reasons for Decision on Motion