Ontario Trial Lawyers Association Case Summaries – June 29, 2015
Singer Kwinter’s Veronica Marson highlights important facts and outcomes in the Ontario Courts.
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Case summaries originally distributed in OTLA June 29th, 2015 newsletter.
Charlebois v. SSQ, Life Insurance Company
2015 ONSC 2568
Released May 29, 2015
This was an appeal of an order dismissing SSQ’s motion to remove plaintiff’s counsel in a disability claim against SSQ. The motion was brought by SSQ after it learned that plaintiff’s counsel had retained two medical experts who had been consulted by SSQ regarding the plaintiff’s treatment needs prior to litigation. SSQ argued that the two experts, an occupational therapist and a psychologist, were privy to confidential and litigation privileged information that they had received from SSQ. SSQ objected to the use of the two experts and sought the removal of plaintiff’s counsel.
The motions’ judge dismissed SSQ’s motion and found that a health care professional-patient relationship had been established the first time the plaintiff met the experts and that the experts had not received any lawyer-client or litigation privileged information. The motions judge also found that there was no property in the experts as witnesses. As such, the motions judge found that SSQ was not precluded from meeting with the experts prior to trial on condition that neither expert was questioned regarding any privileged material they may have received from plaintiff’s counsel or asked to disclose any opinion they provided to plaintiff’s counsel.
The appeal judge agreed with the motions’ judge conclusion that there was nothing improper with plaintiff’s counsel retaining an expert previously retained by defence counsel to give an opinion about issues arising in the litigation between the parties, provided that no solicitor-client or litigation-privileged information was transmitted. The judge asserted that removal of counsel could be an appropriate remedy in instances where this did occur. The judge asserted that SSQ failed in meeting its initial onus of proving that the experts had received privileged or confidential information. He found that no litigation was being contemplated at the time the experts were retained by SSQ. The judge further asserted that a professional-patient relationship was established with the plaintiff since both experts were involved in making treatment recommendations for the plaintiff, if not also directly involved in providing treatment. Although the judge was sympathetic to the SSQ’s perception of unfairness, he ultimately dismissed SSQ’s appeal on the basis that neither of the experts had received any confidential or privileged information.
Tompros v. Ravitharan et al
2015 ONSC 3998
Released June 19, 2015
This was a motion brought by Desjardins as intervener to have a coverage issue determined prior to trial regarding an excluded driver under one of its policies. The excluded driver had signed an OPCF 28A Excluded Driver form in 2007. The form had not been approved by the FSCO Superintendent, was not witnessed, and did not specify which automobiles were subject to the exclusion as required by the standard OPCF28A form. The policy was renewed and vehicles were added and removed on different occasions without the exclusion form being updated or again provided to the excluded driver. There was no evidence that Desjardins delivered copies of the OPCF28A endorsement to the excluded driver when he renewed his policy.
In 2010, the excluded driver was involved in a motor vehicle accident, which resulted in serious injuries to the plaintiff. The insurer for the owner of the plaintiff’s vehicle tendered $200,000 plus costs to the plaintiff based on its views of maximum potential liability, while the plaintiff’s family protection endorsement was left to pay the balance, up to $800,000 plus costs, of the million dollar family protection endorsement. The excluded driver, who also owned the car he was driving at the time of the accident, did not file a defence and was noted in default. His insurer, Desjardins, took an off-coverage position on the basis of him being an excluded driver.
In making its decision, the Court looked at the different OPCF 28A forms, diary notes from Desjardins’ underwriting file, and transcripts from the examinations and cross-examinations of Desjardins’ underwriter. The Court asserted that Desjardins had the onus of establishing the enforceability of the form signed by the excluded driver. The Court agreed that there was no obligation for Desjardins to bring the ongoing applicability of an Excluded Driver Endorsement to the attention of a driver when a policy is annually renewed. That being said, the Court found that strict compliance with the provisions of section 227(1) of the Insurance Act, requiring form approval by the Superintendent, is necessary where an insurer seeks to exclude coverage. The Court found that on the facts of the case, there was no way for anyone reading the certificate of insurance and the OPCF 28A signed by the excluded driver to know which vehicles were caught by the Excluded Driver Endorsement. On that basis, the Court determined that Desjardins could not rely on the form signed by the excluded driver and was obliged to defend and respond to any Judgment rendered in the action.
Case summaries originally distributed in OTLA June 29th, 2015 newsletter – click here.
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