IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Sinnett v. Loewen, |
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2018 BCSC 416 |
Date: 20180316
Docket: M174169
Registry: Victoria
Between:
Geoffrey David Sinnett
Plaintiff
And:
Mason Reid Loewen
Defendant
Before: Master Bouck
Reasons for Judgment
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Counsel for the Plaintiff: |
M.D. Durando |
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Counsel for the Defendant: |
M.J. Hargreaves |
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Place and Date of Hearing: |
Victoria, B.C. February 27, 2018 |
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Place and Date of Judgment: |
Victoria, B.C. March 16, 2018 |
The Application
[1] This is a personal injury action arising from a motor vehicle accident. The proceeding is at an early stage with the parties having yet to conduct examinations for discovery or set a trial date. The parties have exchanged lists of documents.
[2] In his notice of application filed February 6, 2018, the plaintiff asks for the following orders:
1. Within 30 calendar days of the Order pronounced herein, the defendant Mason Reid Loewen deliver to the solicitor for the Plaintiff an un-redacted original or replacement certificate of insurance issued by the Insurance Corporation of British Columbia, which was in effect on June 21, 2017, pertaining to his Saturn SL which bore British Columbia license plate number 074 SRB;
2. Within 30 calendar days of the Order pronounced herein, the defendant Mason Reid Loewen deliver to the solicitor for the Plaintiff an un-redacted original or replacement certificate of insurance and insurance policy issued by any insurer other than the Insurance Corporation of British Columbia, which was in effect on June 21, 2017, pertaining to his Saturn SL which bore British Columbia license plate number 074 SRB; and
3. Costs of this application to the Plaintiff.
[3] The relief sought in paragraph 1 is no longer being pursued for reasons described below.
[4] At the hearing of the application, the plaintiff purported to add the following relief:
4. Within 30 calendar days of the Order pronounced herein, if the Defendant had no insurance policy in effect from any insurer other than the Insurance Corporation of British Columbia, which was in effect on June 21, 2017, pertaining to his Saturn SL which bore British Columbia license plate number 074 SRB, he will deliver a letter to the solicitor to the Plaintiff advising of that fact.
[5] The defendant says that there is no foundation in law for the orders sought but that, in any event, he has provided the plaintiff with a screenshot of his certificate of insurance coverage with the Insurance Corporation of British Columbia (“ICBC”). The defendant seeks dismissal of the application and an award of special costs.
Facts
[6] This action was commenced on November 1, 2017. Both the defendant’s response and his list of documents were delivered to the plaintiff on or about November 28, 2017. On December 5, 2017, Mr. Durando wrote to Mr. Hargreaves requesting that the defendant disclose “… insurance policies from all underwriters, rather than simply a letter stipulating the [insurance] limits”. The defendant’s certificate of insurance as issued by ICBC had been destroyed. After some further communications between counsel, the plaintiff was provided with a screenshot taken from ICBC’s records of the particulars of the defendant’s insurance in effect at the time of the accident. The screenshot was produced on February 8, 2018.
[7] The plaintiff is not satisfied with this disclosure, taking the position that the defendant must still produce any other certificate or policy of insurance relevant to his coverage in this motor vehicle accident claim.
Discussion
[8] The only legal basis cited by the plaintiff in support of the relief sought is Supreme Court Civil Rule 7-1(3). This Rule provides:
(3) A party must include in the party's list of documents any insurance policy under which an insurer may be liable
(a) to satisfy the whole or any part of a judgment granted in the action, or
(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.
[9] Despite the listing of any such policy, the information contained in the document is not to be disclosed to the court at trial unless determined to be relevant to an issue in the action: SCCR 7-1(4).
[10] SCCR 1-1 gives a definition of an insurer:
"insurer" means an insurer, as defined in the Financial Institutions Act, that
(a) has provided a policy of insurance to a party to an action in relation to matters or property in issue in that action, and
(b) under that policy, is obligated to indemnify the party for liability imposed on the party in the action,
and includes a surety of a party to an action in circumstances in which a claim has been made on a surety bond related to the matters in issue in the action;
[11] The Supreme Court Civil Rules do not define “policy of insurance” except to exclude applications for insurance: SCCR 7-1(5).
[12] The above provisions were first introduced into the rules of civil procedure in 2010. The parties submit that there has yet to be any judicial consideration of the application of SCCR 7-1(3) and (4) in motor vehicle accident claims. That is not correct.
[13] The application of SCCR 7-1(3) and (4) to motor vehicle accident claims has been addressed in at least one case, starting with the trial judgment on costs: Meghji v. Lee, 2012 BCSC 116. In Meghji, the trial judge was asked to decide whether the plaintiff was entitled to an award of double costs pursuant to SCCR 9‑1(6). The trial judge had awarded damages to the plaintiff far in excess of the amount specified in an offer to settle. The judge concluded that the amount of the defendant’s automobile liability insurance limits is relevant to the considerations set out in SCCR 9‑1(6). Given that this issue arose post-trial, there was no rationale for an order that the defendant list any insurance policy in a list of documents. Rather than ordering production of particular documents, the court directed the defendant driver’s counsel to disclose the amount of his client’s “liability insurance limits operative at the time of the accident” to the other parties: para. 11.
[14] Eventually, the trial judge made an order with respect to costs. Appeals were taken from not only the costs order but also the trial judge’s order on damages: 2014 BCCA 105. In upholding the costs order, the Court of Appeal determined that:
[115] By amendment to the old Supreme Court Rules, effected July 1, 2010, parties were required to disclose the limits of the insurance coverage available to them as part of the pre-trial discovery process. That requirement is now set out in the Rules at Rule 7-1, which provides:
(3) A party must include in the party’s list of documents any insurance policy under which an insurer may be liable
(a) to satisfy the whole or any part of a judgment granted in the action, or
(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.
(4) Despite subrule (3), information concerning the insurance policy must not be disclosed to the court at trial unless it is relevant to an issue in the action.
[116] Because the disclosure of insurance was intended to assist the parties in assessing their prospects of recovery upon judgment and to encourage settlement of claims where the limits of insurance coverage would play some role in weighing the value of settlement offers, we are of the view that the trial judge was correct to find the availability and extent of insurance coverage was relevant to costs.
[Emphasis added.]
[15] In its decision, the Court of Appeal takes a broad view of what information should produced pursuant to the above-cited rule. For example, such information is not limited to an actual document detailing a policy of insurance but rather encompasses information about “insurance coverage.”
[16] Furthermore, that Court found that all Supreme Court Civil Rules ought to be interpreted in such a fashion as to encourage the settlement of claims: para. 129. Thus, by disclosing their respective insurance coverages (including any UMP coverage available to the plaintiff), the parties in this case will be in a more informed position to reach a negotiated settlement.
[17] The defendant in the case at bar further submits that there is no evidence before the court to suggest that another insurance policy (that is, one providing “excess coverage”) exists. This is true, but given the mandatory language used in SCCR 7‑1(3), there is an obligation on the defendant to list any such documents. If no such document appears on the defendant’s list, the plaintiff may choose to pursue the existence of the documents at an examination for discovery. If listed, the issue of a particular document’s relevancy and thus its admissibility into evidence can still be challenged by the defendant at trial: SCCR 7‑1(4).
[18] In the result, there will be an order that the defendant include in his list of documents any insurance policy or certificate of insurance or any other type of document that discloses insurance coverage under which an insurer may be liable to satisfy in whole or any part of a judgment granted in this action or to indemnify or reimburse the defendant for any money paid by the defendant in satisfaction of the whole or any part of such judgment.
[19] The balance of the relief sought in the notice of application is dismissed, with the parties to bear their own costs of this application. Although the plaintiff was partially successful, the notice of application was deficient by not citing those common law authorities that appear to be at least persuasive if not determinative on the issues raised in this application: Dupre v. Patterson, 2013 BCSC 1561.
“C.P. Bouck”
Master C.P. Bouck