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Articles and Publications

November 2016

First Party Claims:

Affidavit of Documents (and Conclusion) - Part 7 of 7

First Presented at the CBA-OBA Professional Development Program: Fast Out of the Gate: An Insurance Law Primer

Pursuant to Rule 30.03 of the Rules of Civil Procedure, a party shall serve an affidavit of documents disclosing all documents within their knowledge, information and belief relevant to any matter in issue in the action that are in the party's possession, control or power.

We will focus on what needs to be included in the affidavit of documents for first party actions.

Plaintiff / Insured

Schedule A

  • All documents relevant to the claim:
    • If the duty to defend and/or duty to indemnify is pleaded, all documents with regards to the claim in which the insured wants the insurer to intervene (including the notice of claim, the pleadings of that action, correspondence, etc.)
    • If a loss is claimed, all documents regarding proving the loss except for any documents that may be privileged (including fire marshal report, police report, clinical notes from medical practitioners, receipts, etc.)
  • All documents regarding the insurance policy
  • All correspondence between insurer and its representatives (i.e. adjusters, brokers, experts retained by either party where the report has been released) and insured
  • Any other insurance policy that may apply to the loss (for example, overlapping policies, umbrella policies, excess insurance, etc.)

Schedule B

  • Standard expert reports on which you do not wish to rely, etc.
  • Correspondence between insured and the retained lawyer
  • Offers to settle are generally included in Schedule B, but the Plaintiff may wish to/be obliged to divulge offers to the defendant insurer in the context of a claim for indemnification after judgment has been rendered against the insured, for instance

Defendant / Insurer

Schedule A

  • A copy of the policy, including any endorsements and added policy terms
  • All correspondence between the insurer and the insured
  • Application for insurance
  • Proof of Loss, if one received
  • Adjuster's notes, unless privilege is claimed

Schedule B

  • Adjuster's notes regarding the loss, if you can establish litigation privilege.1 There is considerable case law on this point
  • Standard expert reports on which you do not wish to rely, surveillance, etc.
  • Correspondence between the insurer and its lawyer

The insurer's reserves are not relevant and do not need to be disclosed. However, depending on the allegations made against the insurer, the underwriting file may have to be disclosed in Schedule "A".2

Both Parties

Schedule C

  • Documents that were, but no longer are, in the party's possession, control or power
  • For example, lost handwritten notes, photographs that might have been on a cellphone that was later destroyed, documents on a computer hard drive that was destroyed due to a virus, documents destroyed in a fire or flood...

Schedule D - For actions brought under the simplified procedure

  • Names and addresses of persons who might reasonably be expected to have knowledge of the transactions or occurrences in issue (rule 76.03 of the Rules of Civil Procedure).

    PRACTICE TIP 4:prior to January 1, 2010, to determine whether a document needed to be disclosed, the "semblance of relevance test" applied. The current test is the "relevance test". If you research case law regarding the issue of whether a document is relevant, check the date that the decision was released and ensure that the proper test was applied.

    PRACTICE TIP 5: documents in Schedule "B" must be particularized, including the type of document, the date of the document and the grounds on which the claim for privilege is made. See for example, Lin v. Belair Insurance Company Inc., 2009 CanLII 73278 (Master's decision). In our experience, it is best to list the exhibits to a report as well as the report, i.e. an independent adjuster's report is identified by date and author, but the attachments to that report should be set out as well.

Conclusion

We have attempted to cover what we believe to be the most important questions encountered when handling a first party claim. These are interesting and challenging claims, that must be approached in a careful and detailed manner. There is considerable case law on point, and it is always a good idea before drafting your pleadings and advising a client on a proposed claim, to review that case law for the pitfalls and best practices on a particular fact situation.

Back to Defining First Party Claims - Part 1

1 If the document was created for the dominant purpose of assisting a client in litigation, actual or contemplated, then it is privileged. If the defendant claims litigation privilege, it bears the burden of leading evidence to establish when the litigation was anticipated. See, for example, General Accident Assurance Company v. Chrusz, 45 O.R. (3d) 321, [1999] O.J. No. 3291 (ONCA); Confederation Place Hotel v. Dominion of Canada General Insurance Company, 2014 ONSC 4330.
2 See, for example, Sky Solar (Canada) Ltd. v. Economical Mutual Insurance Company, 2015 ONSC 4714.

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