Fleming v. Brown, Court File no. 1220/15

Adverse costs insurance policies must now be produced pursuant to rule 30.02(3).

Heard January 9, 2017 | Full Decision [Document Bank]

This motion concerned the issue of whether a policy of adverse costs insurance must be produced pursuant to rule 30.02(3) of the Rules of Civil Procedure.  Rule 30.02(3) reads as follows:

A party shall disclose and, if requested produce of inspection any insurance police under which an insurer may be liable,

• to satisfy all or part of a judgement in the action; or
• to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgement;

but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.

Prior to this decision, Master Short’s decision in Abu-Hmaid v. Napar, 2016 ONSC 2894, was well known.  Noting the rule was not intended to deal with adverse costs insurance but to insulate plaintiffs from incurring substantial costs while obtaining “practically worthless” judgments in excess of available third party insurance coverage, the master held that the existence of such a policy must be disclosed at examination for discovery but its details are privileged.  Agreeing with Master Short, Gunsolus J., in the unreported decision of Paulin v. Singh (Peterborough Court File No.: 13-15), applied his finding.

Abu-Hmaid and Paulin are now not governing authorities.  As per this unreported decision, dated January 9, 2017, adverse costs insurance policies are caught by rule 30.02(3) and must be produced if requested.  Grace J. held as follows:

…It is conceded to be a policy captured, on its face, by rule 30.02(3)(b).  The subrule… is not restricted to a particular kind of policy but on the obligation that exists in connection to a judgement if obtained.