) ) BRYAN TROTTIER Plaintiff – v. –, 2013 ONSC 2972

CITATION : Trottier v. Beauchamp et al., 2013 ONSC 2972 COURT FILE NO.: 1617/11 DATE: 20130524 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) BRYAN TROTTIER Plaintiff – and – GARVIN BEAUCHAMP, ALLSTATE INSURANCE AGENCY (SUDBURY NORTH), ALLSTATE INSURANCE AGENCY (SUDBURY SOUTH) and CHANTAL CARRIERE Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) James L. Vigmond and Adam R. Little, for the Plaintiff. Sheldon A. Gilbert Q.C., for the Defendants. ) ) ) HEARD: May 17, 2013 GAUTHIER, J. The Motion: [ 1 ] The Plaintiff has brought this motion to strike two paragraphs of the Defendants’ Statement of Defence.

The action is for damages arising from the alleged professional negligence of the Plaintiff’s insurance brokers. [ 2 ] The impugned paragraphs are the following: 7. The Defendants plead that as of the date of the inception of the policy in August 2003, over 90% of motorists in Ontario elected to pursue $1,000,000.00 in third party liability/family endorsement coverage. 8.

The Defendants further plead that as of the date of the accident referred to in the Statement of Claim, which occurred in 2009, approximately 90% of motorists in Ontario were still opting to purchase $1,000,000.00 coverage in respect of third party liability/family endorsement protection. The Facts: [ 3 ] The Plaintiff’s Factum concisely sets out the facts at paragraphs 6 to 11 inclusive and I have reproduced them here: • The Plaintiff, Bryan Trottier, was injured in a serious motor vehicle collision on November 8, 2009.

As a result of the collision, Bryan suffered a traumatic brain injury. • As a result of Bryan’s injuries he will require 24 hour attendant care for the remainder of his life and he will never be employable. Since Bryan is very young (currently 32 years old) his damages claim is significant. • Bryan and his family have commenced a claim against the motorists who caused the collision. They are underinsured, with third party liability limits of only $3,000,000. • Bryan had an OCPF 44R family protection endorsement on his personal insurance policy with the defendant Allstate at the time of the collision.

Bryan had third party liability limits of $1,000,000, providing him family protection coverage of $1,000,000. • Because the Allstate third party liability limits do not exceed the third party liability limits of the motorists who caused the collision, the family protection coverage will not indemnify Bryan for his unpaid damages.

• Bryan purchased his Allstate policy from the Defendants Garvin Beauchamp and Chantal Carriere, who are licensed insurance brokers. He purchased his first policy on August 7, 2003, and it was renewed annually up to and including renewal on August 7, 2009. The Allegations: [ 4 ] The Plaintiff’s position is that the Defendants only recommended liability and family protection coverage of $1,000,000 when he first purchased the insurance policy in 2003.

He claims to have relied on their advice in that regard. [ 5 ] The Plaintiff says that during the six years following the initial purchase of the insurance policy, his income increased considerably, but, the insurance agents never recommended to the Plaintiff that he should increase his third party liability limits and his family protection coverage. [ 6 ] For their part, the Defendants maintain that, in 2003, they advised the Plaintiff of the purpose of third party liability and family protection coverage and of the option to purchase $2,000,000 policy limits for those coverages.

In addition, between 2003 and 2009, the Defendants provided the Plaintiff with four Policy Renewal Offers, all of which set out and recommended the option to purchase increased third party liability and family protection coverages up to the limits of $2,000,000. [ 7 ] The Defendants say that the agents at Allstate are trained to attempt to sell increased coverage to insurance buyers, however, many customers choose not to opt for additional coverage, in order to keep their insurance costs down. The Defendants say that the Plaintiff opted for the lower coverage, to save money.

Issue: [ 8 ] Do paragraphs 7 and 8 of the Statement of Defence offend either or both of Rules 25.06(1) and/or 25.11 of the Rules of Civil Procedure. 25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R. R.O. 1990, Reg.194, r.25.06(1). 25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

a) may prejudice or delay the fair trial of the action;

b) is scandalous, frivolous or vexatious; or

c) is an abuse of the process of the court. R.R.O. 1990, Reg. 194, r.25.11 The Plaintiff’s Position: [ 9 ] The impugned paragraphs are evidence and therefore run afoul of Rule 25.06(1). The paragraphs plead statistical data and add nothing significant to the pleadings. The two paragraphs are simply an attempt to bolster the Defendants’ position that the Plaintiff refused the increased coverage, in order to save money. [ 10 ] The Plaintiff also maintains that the two paragraphs are highly prejudicial. “They relate solely to the general insuring habits of motorists across Ontario.

In this action, the issues of negligence are fact driven, specific to the circumstances, and are wholly independent of what other motorists in Ontario do generally when insuring their vehicles.” (paragraph 36 of the Plaintiff’s Factum.) [ 11 ] In addition, paragraphs 7 and 8 relate to non-parties and therefore are irrelevant and should be struck as being scandalous. [ 12 ] The Plaintiff further suggests that, even if paragraphs 7 and 8 are struck, the Defendants will not be prevented from asking questions about automobile insurance trends and statistics at discovery, or from attempting to lead such evidence at trial.

The Defendants’ Position: [ 13 ] Paragraphs 7 and 8 “are relevant and non-prejudicial as they are directly responsive to allegations made in the Amended Statement of Claim.” (paragraph 6 of the Defendants’ Factum). [ 14 ] The Defendants suggest further that credibility is a central issue in the case and that the pleadings in paragraphs 7 and 8 will be supported by evidence at trial.

Such evidence will assist the trier of fact in determining the credibility issue. [ 15 ] At paragraph 27 of the their Factum, the Defendants suggest the following: Evidence at trial regarding the level of such coverage purchased by most Ontario motorists will support the said Defendants’ credibility and by extension the defence that despite increased coverage being recommended to the plaintiff at policy inception and with each renewal, he, like most Ontario motorists maintained policy limits of $1,000,000.

[ 16 ] In their responding material, including the Factum, the Defendants have referred to Rule 25.11 only. They did, however, rely on case law dealing with both Rule 25.11 and Rule 25.06(1). [ 17 ] Specifically, the Defendants referred me to Toronto (City) v. MFP Financial Services Ltd. , [2005] 17 C.P.C. (6 th ) 338, where, at paragraph 15 , Master McLeod said this: The distinction between material facts, particulars and evidence is not a bright line and there will be situations in which the level of detail required to provide adequate particulars set out material facts that might also be regarded as evidence.

Furthermore, pleadings motions should not be approached in an overly technical manner. Generally speaking a party should be at liberty to craft a pleading in the manner it chooses providing the rules of pleading are not violently offended and there is no prejudice to the other side. Analysis: [ 18 ] Pleadings have a threefold function:

(1) To define with clarity the questions in controversy between the litigants;

(2) To give fair notice of the precise case which is required to be met and the precise remedies sought; and

(3) To assist the court in its investigation of the truth and the allegations made. See National Trust Co. v. Furbacher , [1994] 5 W.D.C.P. (2d) 586 (Ont. Gen. Div.). [ 19 ] The Plaintiff’s claim is that he did not receive appropriate advice from the Defendants regarding which level of insurance coverage to purchase or to renew. The key allegations are set out in paragraphs 7, 13, and 14 of the Statement of Claim as follows: 7. The defendants recommended liability and family protection endorsement (OPCF 44R) coverage to the plaintiff in the amount of $1,000,000.00, which the plaintiff accepted. 13.

The plaintiff therefore claims damages from the defendants for their failure to recommend or arrange adequate or appropriate automobile insurance for the plaintiff. 14. The plaintiff pleads that he has sustained damages as a result of the joint and several negligence and/or breach of contract of the defendants, the particulars of which are as follows:

a) they failed to recommend appropriate or adequate insurance coverage to the plaintiff;

b) they failed to advise the plaintiff of available automobile coverage, and in particular, the availability of more than $1,000,000.00 in insurance coverage;

c) they failed to recommend to the plaintiff, given his age and income earning capacity, the appropriate level of insurance coverage available under the policy;

d) they failed to provide or suggest to the plaintiff that coverage of only $1,000,000.00 was inadequate or that greater coverage was more appropriate and advisable under all of the circumstances;

e) they failed to provide adequate automobile insurance to the plaintiff;

f) they lacked in reasonable care, skill and ability to evaluate the insurance needs of the plaintiff;

g) they failed to take proper and reasonable steps to ensure that adequate insurance was placed for the plaintiff;

h) they failed to warn the plaintiff that he may not have sufficient underinsured motorist coverage in the event that he sustained a serious or catastrophic loss arising from a motor vehicle collision;

i) they failed to exercise a reasonable degree of skill and care to ensure insurance coverage on the plaintiff’s motor vehicle was sufficient to protect the plaintiff’s interests;

j) they failed to act reasonable and carefully when interviewing the plaintiff to ascertain the risks to which the plaintiff may be exposed so that adequate underinsured motorist coverage could be obtained;

k) they failed to exercise a reasonable degree of skill and care when determining the plaintiff’s automobile insurance coverage needs and providing advice and recommendations with respect to his insurance coverage; and

l) they failed to provide full coverage to the plaintiff for all foreseeable and normal risks associated with operating a motor vehicle and being involved in a motor vehicle collision.

[20] In their pleading, the Defendants allege that increased coverage was offered to the Plaintiff several times, but he did notpurchase any, in an effort to keep his insurance costs down. Paragraphs 5, 6, 9, 10, 11, and 12 set this out: 5. The defendants plead that the defendant Chantal Carriere as was her common practice with all of her clients, discussed all of thecoverages available including the amounts for third party liability/family protection as well as collision coverage and comprehensivecoverage and the costs associated with same. 6.

The defendants plead that the plaintiff opted for $1,000,000.00 in liability and family endorsement protection coverage andcollision coverage with a $1,000.00 deductible so as to reduce the overall cost of his insurance. 9. The defendants plead that the plaintiff had no desire to increase his insurance costs by any amount and in fact was looking forways to reduce same as evidenced by the high collision deductible despite the fact that he had purchased a relatively new vehicle atsubstantial cost. 10.

The defendants further plead that at the time of renewal or change of vehicle coverage would have again been discussed andadditional coverage was declined by the plaintiff. 11. The defendants plead that the plaintiff made a voluntary choice to elect $1,000,000.00 in third party liability/family protectionendorsement coverage and when changing vehicles to a Ford Focus and adding another drive in 2008 when available coverages wouldhave been reviewed with him, the plaintiff elected not to increase same. 12.

The defendants plead that at the time of each policy renewal the plaintiff was advised to inquire about the coverages available todiscuss with his Allstate agent his specific needs but did not respond to same. [21] The paragraphs from the Statement of Claim and the Statement of Defence referred to above define the questions incontroversy between the parties, give fair notice of the case to be met, and will be of assistance to the trier of fact. [22] Paragraphs 7 and 8 contain facts or evidence relating to the purchasing trend of Ontario motorists in the years 2003 and 2009.

Is this a material fact in the case between the Plaintiff and the Defendants? If it is, then, in accordance with the comments of MasterMcLeod in City of Toronto v. MFP, paragraphs 7 and 8 would not be struck. If it is not, then Rule 25.06(1) is violated and theparagraphs should be struck. [23] To answer the question, I turn to the duty of care of insurance brokers.

The Supreme Court of Canada, in Fletcher v.Manitoba Public Insurance Corp., [190] 3 S.C.R., described it this way: …it is entirely appropriate to hold private insurance agents and brokers to a stringent duty to provide both information and advice to theircustomers. They are, after all, licensed professionals who specialize in helping clients with risk assessment and in tailoring insurancepolicies to fit the particular needs of their customers. Their service is highly personalized, concentrating on the specific circumstances ofeach client.

Subtle differences in the forms of coverage available are frequently difficult for the average person to understand.

Agentsand brokers are trained to understand these differences and to provide individualized insurance advice. [24] To say, as the Defendants do, that the case at bar differs from Fletcher because of the credibility issue, does not change thenature of the duty of care in the context of providing a service which is “highly personalized, concentrating on the specific circumstancesof each client.” [25] Knowing what most Ontario motorists did in the past will not help the trier of fact determine what this particular motorist did.

Additionally, the statistic does not refer to whether or not those motorists who opted for lower insurance coverages were neverthelessadvised of their options by their insurance brokers, which is at the heart of the matter in question. [26] I am also not satisfied, for purposes of this motion, that the purchasing pattern of Ontario motorists will assist with thecredibility contest between the Plaintiff and the Defendants. [27] The evidence or facts provided in paragraphs 7 and 8 then add nothing to the Claim nor to the Defence that (

a) the highercoverage was discussed with and offered to the Plaintiff and (

b) he refused it because of cost. [28] While paragraphs 7 and 8 could be described as containing both fact and evidence, the information conveyed in thoseparagraphs is not “necessary for a complete cause of action.” (Bruce v. Odhams Press Ltd., [1936] 1 K.B. (Eng. C.A.), nor does itinclude “facts that establish the constituent elements of the claim or defence.” (Thermionics Ltd. V. Philco Products Ltd., (SCC), [1940] S.C.R. 501 (S.C.C.) at p. 505.) [29] As well, I am not satisfied that paragraphs 7 and 8 will affect the determination of the parties’ rights. (Hammell v.

BritishAmerican Oil Co., [1945] O.W.N. 742 (Ont. H.C.). [30] As the evidence or facts pleaded at paragraphs 7 and 8 are not material, those two paragraphs should and will be struck out,pursuant to Rule 25.06(1). I need not embark on an analysis of the paragraphs vis-à-vis Rule 25.11. Ruling: [31] Order to go that paragraphs 7 and 8 of the Statement of Defence dated August 23, 2012, be struck.

[ 32 ] If the parties are unable to agree on costs, they are to communicate with the Trial Coordinator within thirty (30) days, to set a date and time for costs to be argued, failing which no order for costs will be made. [ 33 ] I am prepared to conduct the costs hearing by teleconference call. Madam Justice L. L. Gauthier Released: May 24, 2013 CITATION : Trottier v.

Beauchamp et al., 2013 ONSC 2972 COURT FILE NO.: 1617/11 DATE: 20130524 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BRYAN TROTTIER Plaintiff – and – GARVIN BEAUCHAMP, ALLSTATE INSURANCE AGENCY (SUDBURY NORTH), ALLSTATE INSURANCE AGENCY (SUDBURY SOUTH) and CHANTAL CARRIERE Defendants RULING ON MOTION GAUTHIER, J. Released: May 24, 2013