Fleming v. Brown, 2017 ONSC 1430 (CanLII)

Court rules ATE policies must be produced.

Date Heard: January 9, 2017 | Full Decision [PDF]

The plaintiff was injured after falling from a ladder on the defendant’s property. During examination for discovery, the plaintiff was asked whether he had adverse cost insurance. The question was refused. Plaintiff’s counsel later advised that a policy existed, who held the policy, and the limits, in accordance with the principles in Abu-Hmaid v. Napar. The defendant, unsatisfied, moved for production of the policy.

Plaintiff’s counsel refused production claiming the particulars of the policy is all the law requires, and that production is not relevant to the matters in dispute.

Defence counsel relied on rule 30.02 (3). It states: “A party shall disclose and, if requested, produce for inspection any insurance policy under which an insurer may be liable, (a) to satisfy all or part of a judgment in the action; or (b) to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment, but no information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.”

Upon review of the rule, Mister Justice Grace concluded it applies to all policies of insurance even if irrelevant to an issue in the action. The rule is worded such that only the use of the disclosure and policy itself is limited by relevance. Further, Grace J. concluded the rule applies to “a party” and is not confined to defendants.

For Grace J., it followed that an insurance policy had been identified to which rule 30.02(3)(b) applies, and therefore the defendants were entitled to inspect the policy. Production was ordered.

Plaintiff counsel: T. Dhillon

Defence counsel: A. Rachlin

Read the full decision [PDF]
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