This case involved an motor vehicle accident with an uninsured defendant. The plaintiff pursued the uninsured provisions of her own automobile policy, TD Insurance. TD retained in-house counsel to act on the AB matter. TD thereafter retained the same in-house counsel to act on the uninsured claim. Plaintiff’s counsel advised TD that it was in a position of conflict and that it could not have the same lawyer acting on both the AB and the tort matter. TD’s position was that it had set up appropriate ‘walls’ because its lawyer was not disclosing to the adjusters on the tort and the ab files what each other’s file contained. Further, they advised that they believed they could act on the basis that there was only one insurance policy involved. The court agreed that there was a conflict and that both the lawyer retained by TD and his firm (the Toronto in-house office) were disqualified from acting.
Justice Ramsay made the following corrections to his original decision which are not reflected on Canlii but are on the QL database:
Minor corrections were made to paras. 10 and 11 as follows:
- [10] In Dervisholli, then, the insurance company had two clients on two policies. In Ascani, the insurance company had two clients on one policy. In the case at bar TD Insurance has one client with two claims on one policy. The alleged distinction seems contrived. It has nothing to do with the principle of the thing, which is that for the sake of the integrity of the court, the legal profession and the accident benefits regime, someone who is required to disclose confidential information in a fiduciary relationship should not be cross-examined in court by the lawyer to whom the confidential information was disclosed.
- [11] The separation between TD’s accident benefits adjuster and its tort adjuster is beside the point. The same lawyer is privy to the information obtained on both sides of the file.
