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June 2018

Insurers Beware: Ontario Court Rules Underwriting and Broker Files are Producible in Tort Litigation when Consent is a "Live Issue"

David Elmaleh
David Elmaleh
Partner

Carly Jacuk
Carly Jacuk,
Law Student

By David Elmaleh and Carly Jacuk

In a decision that will likely be replicated by other courts nationwide, Master MacAfee in Robichaud v McAulay, 2018 ONSC 3636, ordered production of an insurer's underwriting file along with the relevant insurance broker's file.

The underlying litigation involved a 2012 motor vehicle accident. The defendant, Kyriakos Constantinidis, was driving his mother's car and rear-ended the plaintiff. The insurer denied coverage to Kyriakos, claiming that he did not have consent to possess his mother's vehicle. The plaintiff pled that Kyriakos had consent, whereas the mother denied providing consent.

The plaintiff's own insurer, a defendant pursuant to the uninsured / underinsured provisions of the plaintiff's policy, brought a motion for a further and better affidavit of documents that specifically included the underwriting and broker files so it could assess the strength of the coverage denial.

Master MacAfee ruled that the information in the underwriting and broker files were relevant to determining the issue around consent to operate the vehicle because the underwriter and/or broker would have confirmed which drivers were named as operators of the vehicle:

[11] The underwriter would have confirmed which drivers were named as operators of the Mazda. The information in the underwriting file is relevant to the issue of consent to operate the Mazda.

[12] I am also satisfied that the broker file of Marathon with respect to the Mazda is a relevant document that has been omitted from Sofia's affidavit of documents for the same reasons.

[13] The underwriting file and broker file with respect to the policy issued to Sofia covering the Mazda shall be produced dating to January 14, 2013. Although I was not referred to specific evidence indicating that the documents were created for the dominant purpose of litigation, paragraph 11 of the affidavit of R. Love states that a notice letter dated January 14, 2013, was sent to Sofia. The files shall be produced dating to January 14, 2013.


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