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Date: |
20040917 |
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Docket: |
S021704 |
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Registry: Vancouver |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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Oral Reasons for Judgment |
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BETWEEN: |
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ALF BUTTERFIELD and PAM BUTTERFIELD |
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PLAINTIFFS |
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AND: |
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LOMBARD INSURANCE COMPANY, LOMBARD CANADA
LTD., |
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DEFENDANTS
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Counsel for the Plaintiffs |
S. Griffin |
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Counsel for Lombard |
C. Rhone
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Counsel for Fawcett |
J.D. Morin |
[1] THE COURT: I am going to give an oral decision. There are quite a few issues raised so if I miss any of them, be sure to remind me. There are five applications before the court; two by the defendant Lombard in one motion; one application by the defendant Fawcett and two applications on the part of the plaintiffs.
[2] One of the plaintiffs’ applications is to amend its statement of claim. The position of the defendants is that they did not receive the required notice and are not in a position to deal with that matter today and are prepared to adjourn their application for particulars except in relation to a claim for punitive damages which is contained in the original statement of claim and in the proposed amended statement of claim.
[3] I am going to adjourn the plaintiffs’ application in relation to its proposed amendments to the statement of claim to give the defendants a full opportunity to consider them and to see whether or not some agreement might be reached. If the parties are unable to agree with respect to the proposed amendments then the plaintiff may renew its application.
[4] The plaintiffs’ second application, which I am going to deal with next, is for a stay of proceedings. The plaintiffs’ position is that there is an ongoing appraisal process initiated under the terms of the insurance contract between the plaintiffs and the defendant Lombard and pursuant to provisions in the Insurance Act and that this action ought not to proceed until that appraisal process has been completed.
[5] I am going to dismiss that application and in doing so note that there is no application before me to either compel the appraisal process to continue or to determine by way of declaration or injunction that it is no longer a live process or ought not to continue. The only question is whether assuming, without deciding, that there is an appraisal process that is still alive ought the court to stay this lawsuit while that process, assuming it is still alive, wends its way? I have decided that it would not be just and reasonable to grant a stay in the circumstances of this case for the following, among other, reasons.
[6] First of all, in my view, it is inevitable that this matter will proceed to trial unless settled by the parties. The outcome of the appraisal, whatever it may be, if it is a live process and if it continues, will not result in this trial not taking place or indeed even in making any significant impact on the length or complexity of the trial.
[7] The existing statement of claim reveals that the plaintiffs have a number of claims both in contract and in tort against not only the defendant Lombard, which is bound by the terms of the policy and therefore a party to the appraisal process, but also against the defendant Fawcett which is not. And these include the claims for punitive damages; in effect, negligence, bad faith and those are only a few.
[8] The proposed statement of claim, which I have looked at only briefly, may indeed involve the addition of other parties and expands on the claims. To stay the trial while the appraisal process continues, if it continues and it is permitted to continue, will not be decisive of the lawsuit or even shorten it is a primary reason not to grant the stay.
[9] The second factor is that some of the defendants, in particular, Fawcett Insurance Agency Ltd. is not a party to the appraisal process. It will derive no benefit at all. Given the history of the appraisal process, which was theoretically begun in the fall of 2002 and essentially has accomplished nothing to date and is unlikely to do so in light of the personality conflict between the two appraisers, means that the defendant Fawcett might be waiting indefinitely if this action were stayed. If it was stayed, there would be the usual ramifications that delay causes, such as people’s memories failing, the potential for witnesses to move away or to die, the loss of documents, the fact that presumably if it has insurance it has called upon its own insurance and it has these outstanding allegations against it. In my view, it would be unjust to make Fawcett await the outcome of an appraisal process which may never come to an end and from which it could not in any event benefit.
[10] If the appraisal process is alive and if it continues, it will be fraught with many problems. There will be problems with production of documents and information. That has been the case so far. The appraisers have argued strenuously about what information is relevant or should be produced and if so, when. Lombard’s appraiser from the beginning has been saying that in order to determine what the defendant’s position is, it has to have all of this information. The plaintiffs’ appraiser’s position was, “no, first we get the umpire in place.” After that finally occurred then the plaintiffs took the position, “well, it is not up to the umpire anyway, we need to decide what our positions are and only then would we need the umpire” a completely circular process so far.
[11] I am also satisfied that although by no means can all of the fault be laid at the door of the plaintiffs, the plaintiffs have not proceeded in an expeditious way in pursuing the appraisal process. They are not wholly to blame. Even before November of 2002 when in the defendants’ view they paid out the policy limits and said, “we are not interested in the appraisal any more” even prior to that date the plaintiffs really did not take steps they ought to have taken if they were serious about the appraisal process. They did not resort to the umpire to try to resolve any of the impasses. They made no application to court to compel the appraisal process to proceed. They did not produce the information that was requested although in my view it is clearly relevant both in an appraisal process and in court.
[12] There is no appraisal schedule in evidence. There is no specific plan as to how the appraisal process would get back on the track it has clearly gone off. So that is another reason why a stay ought not to be granted.
[13] In the cases relied upon by the plaintiffs there were no defendants who were not parties to the contract and therefore also participants in the appraisal process. It is not at all clear here that the defendant agent would be bound by any valuation to be determined by the appraisal and it would be free to call its own evidence in relation to the issues that the appraiser presumably would decide for the other parties. So you would have all of those valuation issues at trial in any event.
[14] The information that the defendants are seeking through the interrogatories and the document discovery process is in my view the same information which would be relevant in the appraisal process but there are no clear guidelines set out in the Insurance Act or the contract as to how production of the information can be compelled in the appraisal process. I anticipate that there would have to be applications to court with no clear mechanism as to how to compel these things whereas in the court proceedings, as today demonstrates, there are ways under the Rules of Court to compel production of documents, particulars and interrogatories.
[15] So for all of those reasons, it would be unjust to stay these proceedings.
[16] Mr. Griffen argues the plaintiff ought not to be compelled to proceed with litigation, but the plaintiffs commenced this action. Once it has done so, once it has initiated the proceedings, then the defendants also have an interest in seeing a just and speedy determination of the dispute. They are not required to wait years to have the matter resolved simply because they were not the parties that commenced the action.
[17] I turn then to Fawcett’s application for production of a list of documents and I will order that the plaintiffs deliver the list of documents. I am going to give them 21 days to do so because I am going to make this order at the outset to include those documents which are specified in Fawcett’s notice of motion.
[18] Mr. Griffen has urged me not to do that and he made a submission that perhaps it was intended to reflect on his integrity as a barrister. I do not take it that way and I doubt very much that Mr. Morin intended it in that way because of course it is not Mr. Griffen’s obligation to produce the documents, it is his client’s obligation to produce the documents. Given the resistance that has been demonstrated at least through the appraisal process to the production of many of these same documents, I think we would simply be setting up the necessity for a subsequent application. In addition to the general obligation to produce documents, I am satisfied that those documents that are specified in Fawcett’s notice of motion are clearly relevant in these proceedings and therefore I will give the plaintiffs that additional direction that in the preparation of their list of documents they must include the documents of the nature and type specified in Fawcett’s application.
[19] Given that the loss occurred some three years ago, presumably the efforts to locate all of this information and documents have long ago been undertaken although I am told that a complete list of contents of the home is still in the process of preparation. Therefore I think 21 days should be adequate for the plaintiffs to produce their list of documents.
[20] The application by Lombard for production of particulars of the claim for punitive damages I will also grant. It is not really disputed. The balance of the application for particulars is adjourned pending efforts by counsel to see if they can reach agreement on the proposed amendments to the statement of claim. If and when those amendments are settled, either by court order or by agreement, then the defendant will be in a position to decide if it needs to renew its application for particulars.
[21] With respect to the application for answers to interrogatories, I am going to grant the application with some changes. Paragraph 1 of the interrogatories shall be answered. Paragraph 2 shall be answered except that the plaintiffs are at liberty to indicate whether or not their claim for the items in the personal property inventory is for replacement value or depreciated value and then to answer those questions that would be relevant to the item of property being described.
[22] Paragraph 3 of the interrogatories shall be answered. Paragraph 4 shall be answered. Paragraph 5 shall be answered. Paragraph 6 shall be answered subject to the same proviso as I made in relation to paragraph 2 which is, for example, if replacement is being claimed rather than a repair or if a depreciated value is being claimed rather than replacement value, then answers need not be given that are not relevant to the nature of the claim.
[23] Paragraph 7 shall be answered. Paragraph 8 shall be answered. Paragraph 9 shall be answered except that while the defendant is entitled to have a detailed description of the dwelling to justify the sum claimed, in my view the difference between the BC Assessment Authority value and the plaintiffs’ claimed value is not relevant in the proceedings or has not been demonstrated to my satisfaction to be relevant and so the plaintiffs do not have to attempt to explain the reason for the discrepancy. In my view that, again, may not be information in their possession unless they know precisely how the BC Assessment Authority prepares its valuations.
[24] Paragraph 10 shall be answered. I suspect the answers are obvious but nonetheless. It is agreed that paragraphs 11, 12 and 13 and 14 need not be answered.
[25] 15 shall be answered. 16 shall be answered. 17 shall be answered. 18 shall be answered. 19 need not be answered. 20 shall be answered except that it should be clear that what is requested in 20 are demands for payments aside from the proofs of loss since that will already have been answered.
[26] I am going to adjourn the defendants’ application for answers to interrogatories in paragraphs 21 through 24. It may be that these are duplicated in the demand for particulars application which is not presently before the court or that there may be answers in the proposed amended statement of claim such that it will not be necessary for these matters to be pursued by way of interrogatories.
[27] The defendants can have their costs of this application but they will be in the cause and on Scale 3.
(Submissions)
[28] THE COURT: I am going to leave it at 21 days. If the plaintiffs have a legitimate reason why 21 days will not be adequate, I am sure your friends will not immediately renew their application. I appreciate it is a lot of material but on the other hand it has been in my view clearly relevant both to the appraisal process and this process as I think I tried to say twice. It seems to me information that the plaintiffs must have known from the outset was going to have to be produced in either this lawsuit or the appraisal process. So I think 21 days is certainly adequate for them to make their very, very best attempts.
[29] If some documents have to come in or have to be listed after that point, well, it often happens in lawsuits that subsequent lists have to be produced.
(Submissions)
[30] THE COURT: I am going to adjourn paragraph 25 as well because paragraph 23 of the statement of claim may be altered. I do not know.
[31] UNKNOWN SPEAKER: My Lady, just to be clear, the plaintiffs have 21 days within which to respond to the interrogatories and the particulars?
[32] THE COURT: I do not think I gave a date. I will make it 21 days for that as well subject to the same comments I made earlier which is obviously if the plaintiffs have made a reasonable stab at it then the defendants ought to grant some accommodation if there is a good reason why it is not available.
“W.G. Baker, J.”
The Honourable Madam Justice W.G. Baker