Court Sends Accident Benefits Representative to Tort Discovery

January 9, 2013

A Superior Court master has ordered an accident benefits representative to submit to an examination for discovery in the plaintiff’s underinsured tort claim against his insurer.

In De Sousa v. Aviva Insurance, the plaintiff was injured in a motor vehicle accident. The defendant Aviva was the plaintiff’s insurer at the time of the accident. The plaintiff claimed and received first party statutory accident benefits from Aviva.

Three and a half years after the accident, the plaintiff brought a tort claim against Aviva, pursuant to the OPCF 44R Family Protection Change Form that formed part of his policy of insurance. The action was commenced against the Aviva because the third party tortfeasor was inadequately insured. As such, the defendant stood in the shoes of the tortfeasor for the purposes of defending this claim.

At issue was whether the plaintiff could compel an accident benefit representative from Aviva to attend an examination for discovery in the tort action. Aviva refused to produce the representative. It took the position that the only reason the plaintiff wished to examine the accident benefit representative was to elicit evidence of the knowledge of the company’s accident benefits department with respect to the plaintiff’s medical condition from time to time. It also argued that producing the accident benefit representative would breach the company’s firewall between the accident benefit and bodily injury departments. To support the firewall argument Aviva relied on the Insurance Bureau of Canada’s Bulletin 184 and some case law.

The master disagreed with Aviva’s position, finding that under the Rules of Civil Procedure a party is allowed to examine any officer, director or employee on behalf of a corporation. As the accident benefit representative was an employee of Aviva, the plaintiff was allowed under the Rules to examine her.

With respect to the firewall issue, the master pointed out that the purpose of the firewall is so that an insurer is not advantaged by the fact that it is responding to both accident benefit and tort claims. However, the consent of the insured obviates this concern. In this case, the master found that the plaintiff had clearly and unequivocally provided his consent to the transfer of information. He found that this consent was sufficient to satisfy the concerns underlying the requirements of keeping the firewall. In view of this consent, the defendant was no longer required to maintain the firewall.

In my view, this decision makes sense under the Rules of Civil Procedure. It also makes sense when considering the purpose of the firewall, which is to prevent the bodily injury department from obtaining information that it otherwise would not have if the accident benefit file was being handled by another insurer. The firewall is supposed to protect the accident benefits claimant. So there is no harm to the claimant if he or she wants to extinguish the firewall.

See De Sousa v. Aviva Insurance Company of Canada, 2013 ONSC 185 (CanLII)


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