Is the information in a statement by an Insured to an Insurer privileged?

Is the information in a statement by an Insured to an Insurer privileged?

Sangaralingam v. Sinnathurai, [2009] O.J. No. 5211 (Master).

During examinations for discovery, information gathered by insurance companies during its process of investigation into a claim, are sometimes the subject of dispute.

For example, counsel for an insurer will usually assert privilege over the document containing a statement made by an insured to the insurer during the course of investigation.

The document itself is privileged. But the question arises whether the "material information" in the statement is also privileged.

Master Short recently dealt with a motion in which the plaintiff sought an Order directing a defendant to disclose information contained in a statement delivered to his insurer following a motor vehicle accident.

Counsel for the plaintiff asserted that even if the statement is privileged, the contents of the statement must be disclosed on discovery.

Master Short quoted Justice Lane in Greco v. Thornhill, [1993] O.J. No. 1347, who wrote that information which is relevant may not be withheld from disclosure merely because it has also been incorporated into a privileged document. For example, with respect to surveillance the questioner is entitled to know what the investigator saw, his knowledge, information and belief, but not to have the document itself. However, the situation is different in the case where the witness has already testified to the facts and what is being requested is not the facts but what the witness said about the facts to her insurer. Justice Lane held that such questioning is clearly devoted solely to the credibility of the witness and the witness is not obliged to respond.

Master Short held that a witness who has been examined for discovery and makes him or herself available to the party opposite to answer any relevant questions is not obliged to then also provide the material information contained in a statement made to its insurer.
Season's Greetings

Season's Greetings

Thank you to our readers and to those who have taken time to post comments on the blog this year. We appreciate your input and support. We wish you all the best in 2010. Happy holidays from the Ontario Insurance Law Blog!

John and Tara
GCS that Fluctuates Above 9 May Still be Considered Catastrophic

GCS that Fluctuates Above 9 May Still be Considered Catastrophic

Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Limited)(2009), 97 O.R. (3d) 95 (C.A.).

The Court of Appeal has released a decision that may make it more difficult to resist a declaration that a claimant is catastrophically impaired.

In Liu, the plaintiff was injured in a motor vehicle accident on April 9, 1999. His initial Glasgow Coma Score (“GCS”) was 3/15. His GCS steadily increased and by the time he arrived at hospital 26 minutes later, his GCS was 14. The definition of “catastrophic impairment” is brain impairment that results in a score of 9 or less on the GCS according to a test administered “within a reasonable period of time after the incident by a person trained for that purpose”. The trial judge concluded that the appellant did not suffer a catastrophic impairment, and as a result, he was not entitled to receive a damage award for future medical, rehabilitation or attendant care expenses, which the jury assessed at $858,000.00. The issue of catastrophic impairment was therefore very important to both sides.

The Court of Appeal held that as long as there is one GCS score of 9 or less within a reasonable time following the accident, the plaintiff’s impairment falls within the definition of catastrophic impairment. The fact that there may have been other, higher scores also within a reasonable time after the accident is irrelevant.

This decision has implications in both the accident benefits sphere and on tort damages. Although it simplifies the definition of catastrophic impairment to a certain extent, it permits claimants who have met the definition for a limited period of time to access increased damages. It remains to be seen whether this decision will be appealed to the Supreme Court of Canada.
What is an "accident"? - Supreme Court of Canada

What is an "accident"? - Supreme Court of Canada

In a unanimous decision the Supreme Court of Canada has today addressed the issue of whether “accident insurance” includes disease. The decision reached today will make insurers happy and a particular insurer (the one involved in this case!) very happy.

The decision is Co‑operators Life Insurance Company v. Gibbens, 2009 SCC 59.

The Supreme Court of Canada overturned a finding of coverage and an award of $200,000 by a British Columbia trial judge, which was affirmed by the British Columbia Court of Appeal.

Justice Binnie, writing for the Court, has emphasized that in ordinary speech “accident” does not include ailments proceeding from natural causes.

In this case, the plaintiff had unprotected sex with three women and acquired genital herpes, which in turn caused an unusual complication that resulted in his total paralysis. The question at the trial-level was whether his paraplegia qualified as an accident (“bodily injury occasioned through external, violent and accidental means”).

The trial judge answered yes. This was affirmed by the Court of Appeal.

The Supreme Court of Canada today said no.

Justice Binnie noted in his reasons that the definition of “accident” has been the subject of much judicial discussion over many years.

Justice Binnie concluded by stating that an “accident” insurance policy should not be converted into a “comprehensive insurance policy for infectious diseases contrary to the expressed intention of the parties and their reasonable expectations.”

Further, at para. 63, Justice Binnie wrote, “To conclude that Mr. Gibbens’ acquisition of herpes was “an accident” despite the absence of any mishap or trauma other than the acquisition of a sexually transmitted disease in the ordinary way would simply serve to add sexually transmitted diseases to the list of Critical Diseases in the group policy contrary to the intent of the policy.”

What’s the lesson from this case? Perhaps it is this. A basic principle of accident insurance, which is often forgotten, is that an accident must be fortuitous and unexpected. Injury caused by accident does not include infirmity caused by disease or old age in the ordinary course. Accident insurance is not designed to provide coverage for events that will inevitably happen to us all, such as getting old or developing pain. There is no guarantee of a payout on any kind of insurance policy - except for paid-in-full life insurance given the fact that death is a certainty!
Occupier's Liability Act - Definition of Recreational Trail

Occupier's Liability Act - Definition of Recreational Trail

Schneider v. St. Clair Region Conservation Authority (2009), 97 O.R. (3d) 81 (C.A.)

Schneider was injured while skiing in a conservation area when she left a marked trail and her ski struck a wall hidden by snow. During the winter months, the area was used for activities such as skiing, tobogganing and hiking, but the defendant did not perform any maintenance of the area. Section 3 of the Occupier’s Liability Act imposes a duty on occupiers to take reasonable care to ensure that people are reasonably safe while on the premises. Where a person willingly assumes the risks of entering premises, section 4(1) of the Act substitutes a lesser duty on the occupier to not create a danger with deliberate intent to do harm and to not act with reckless disregard. Section 4(3) of the Act is a deeming provision that provides that a person who enters certain types of premises that are outlined in section 4(4) is deemed to have willingly assumed the associated risks. Those premises outlined in section 4(4) include such property as rural premises and recreational trails.

The trial judge held that the lesser duty of care did not apply because the premises did not come within one of the categories listed in section 4(4). He noted that although the premises contained recreational trails, the concrete wall was not on one of the trails.

The Court of Appeal allowed the appeal and dismissed the action. The court reviewed the purpose and history of the Occupier’s Liability Act. The purpose of section 4 was to encourage land owners to make their lands available to the public for recreational use. The Court of Appeal sensibly stated that it would make little sense to impose a lesser standard when users remained on the trail, but to impose a higher standard when they veered off of it. The trail was being used by Ms. Schneider for recreation and it met the definition of recreational trail, thus bringing it within the provisions of section 4.
Changes to the Rules of Civil Procedure - Part 6

Changes to the Rules of Civil Procedure - Part 6

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 6 of our review of the amendments.

A new rule has been introduced which imposes additional requirements on experts. Rule 4.1 requires experts to sign an acknowledgment agreeing that they have a duty to provide evidence that is:

a) fair, objective and non-partisan;
b) related only to matters within the expert’s expertise;
c) to provide the court with assistance it needs to determine a matter in issue.

Both plaintiffs and defendants have experts that they use and know have a particular slant. Whether this rule actually results in more balanced reports remains to be seen.

The acknowledgement of duty is contained in Form 53 and it must be attached to every expert report to be relied on at trial. A copy of form 53 can be found on the Ministry of the Attorney General website at:

http://www.ontariocourtforms.on.ca/english/civil/

In addition, expert must include additional information in their reports, such as the information relied on in preparing the report. This may open up an argument that the instructing letter should be disclosed. Counsel should therefore be cautious in what information is provided to the expert.
Changes to the Rules of Civil Procedure - Part 5

Changes to the Rules of Civil Procedure - Part 5

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 5 of our review of the amendments.

Rule 20 governs summary judgment. The amendments to this rule are substantial and have the potential to make it a more valuable tool than it currently is. The changes to rule 20 will permit judges expansive powers; they will be able to weigh evidence, make inferences and evaluate credibility. Judges will also be able to hear oral evidence on a summary judgment motion to order to assist them in making decisions, rather than relying on affidavit evidence.

These changes have the potential to assist in disposing of claims at an early stage, rather than waiting until a full trial occurs, with its associated time and expense. What remains to be seen is whether judges are prepared to utilize the new rule to its full potential.

If a judges declines to grant summary judgment or grants summary judgment in part, judges have a wide variety of powers. One of the more interesting powers is the ability to order that each party's expert meet to discuss areas of agreement and disagreement. This power appears contradictory to the intent of the amendments, which focuses on reducing costs and increasing access to justice, as well as proportionality. Requiring experts to meet will increase costs to litigants and adds a level of administration because it requires coordination of the experts' schedules. Practically speaking, one would think that this would be an exceptional remedy due to the costs considerations and that where experts are diametrically opposed, there is no real use in having them try to persuade each other.

Another substantial change to summary judgment is that the costs consequences of a failed summary judgment motion have been relaxed. The current rule imposes substantial indemnity costs against the unsuccessful party; the new rule eliminates the presumption of substantial indemnity costs. The current rule has served as a deterrent to bringing summary judgment motions for fear of the costs consequences. The new rule may encourage its use as even if a party is not successful, the consequences are not as severe as in the past.