) ) THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Plaintiff – v. –, 2013 ONSC 6906

CITATION : Dominion of Canada General Insurance Company v. MD Consult Inc., 2013 ONSC 6906 DIVISIONAL COURT FILE NO.: 123/13 DATE: 20131105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Plaintiff – and – MD CONSULT INC. o/a Toronto Regional Medical Assessment Centre, MD ASSESSMENT CONSULT INC., PACIFIC ASSESSMENT CENTRE INC., a.k.a.

Pacific Rehab & Therapy Inc., 2171713 ONTARIO INC. o/a Fairview Assessment Centre Inc., Ancaster Rehab, Universal Injury Rehabilitation Centre, Assessment Direct and Human Health Clinic, TRAFFIC LAW ADVOCATE (E.E.) PROFESSIONAL CORPORATION, DANNY GROSSI, VITALI TOURKOV, ABRAM ZILBER, EVGENI EVDASSIN, FAIRVIEW ASSESSMENT CENTRE INC., ALEXANDER LOBATCH Defendants AND BETWEEN: CO-OPERATORS GENERAL INSURANCE COMPANY, HB GROUP INSURANCE MANAGEMENT LIMITED and COSECO INSURANCE COMPANY Plaintiffs )) )) )) )) )))))))))))))))))))))))) Ian H.

Gold and Sarah Jones , for the Plaintiffs, The Dominion of Canada General Insurance Company, HB Group Insurance Management Limited, Coseco Insurance Company and State Farm Mutual Automobile Insurance Company ) ) -and – PACIFIC ASSESSMENT CENTRE INC. a.k.a. PACIFIC REHAB & THERAPY INC., FAIRVIEW ASSESSMENT CENTRE INC., 2171713 ONTARIO INC., CENTURY DIAGNOSTIC & ASSESSMENT CENTRE INC., M.D. CONSULT INC., o/a TORONTO REGIONAL MEDICAL ASSESSMENT CENTRE, M.D.

ASSESSMENT CONSULT INC., VITALI TOURKOV, ALEXANDRE LOBATCH, ABRAM ZILBER, PAVLO TSYSAR, DANNY GROSSI and YANIV TAMSOUT )))))))))))))))))))))))))))))))))))))))))) Melvyn L. Solmon and James P. McReynolds¸ for the Defendants Pacific Assessment Centre Inc. a.k.a. Pacific Rehab & Therapy Inc., Vitaly Tourkov, Fairview Assessment Centre Inc., and Alexander Lobatch, Yaniv Tamsout and Alla Lobatch

Defendants AND BETWEEN: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Plaintiff -and – PACIFIC ASSESSMENT CENTRE INC., a.k.a. Pacific Rehab and Therapy Inc., FAIRVIEW ASSESSMENT CENTRE INC., 2171713 ONTARIO INC., MD CONSULT INC. o/a TORONTO REGIONAL MEDICAL ASSESSMENT CENTRE, M.D.

ASSESSMENT CONSULT INC., TRAFFIC LAW ADVOCATE (E.E.) PROFESSIONAL CORPORATION, VITALI TOURKOV, ALEXANDRE LOBATCH, ABRAM ZILBER, DANNY GROSSI, EVGENI EVDASSIN, YANIV TAMSOUT, ALLA LOBATCH and DAN SUT Defendants HEARD at Toronto: November 5, 2013 SACHS J. (orally) [ 1 ] On this motion the defendants seek leave to appeal the order of Allen J. dated March 5, 2013, dismissing their motion to strike the plaintiff’s pleadings. [ 2 ] The defendants submit that there is good reason to doubt the correctness of the motion judge’s order for two reasons: (

i) She erred when she failed to apply the doctrine of merger to strike out the conspiracy claims; (ii) She applied the wrong test when she failed to strike out the fraudulent misrepresentation claims as against the individual defendant.

The Conspiracy Claims and the Doctrine of Merger [ 3 ] The doctrine of merger applies to strike out a conspiracy claim at the pleadings stage in a situation where it is plain and obvious that the plea of conspiracy adds nothing to the main cause of action being asserted. In this case, it is possible that a defendant, after a trial, could not be found liable for the tort of fraudulent misrepresentation, but could be found to have conspired to commit an unlawful act. Whether this proves to be the case cannot be known until the trial of the action.

Because of this, Allen J. correctly decided not to apply the doctrine of merger at the pleadings stage. [ 4 ] In this regard, I note that there is no suggestion that the plea of conspiracy will complicate or add to the costs of the proceedings.

The Fraudulent Misrepresentation Claim [ 5 ] The defendants assert that Allen J. applied the wrong test when considering the claims of fraudulent misrepresentation and that she failed to appreciate the particular rules of pleading that apply to allegations of fraud. [ 6 ] According to the defendants, the test on the motion to strike a pleading based on fraud is different than the test to be applied to other pleadings.

If fraud is pled, full particulars of the fraud alleged must be given. [ 7 ] It is clear from reading the Reasons of the motion judge that she correctly articulated the test that she had to apply to the claims of fraudulent misrepresentation as against the individual defendants (see paras. 9, 10, 22-27 of her Decision). She then applied that test to the pleadings before her and found that the defendants had pled the frauds alleged with sufficient particularity. [ 8 ] In my view, she applied the test correctly.

However, even if there is reason to doubt the correctness of her application of the test, this is not a case that raises an issue that transcends the interest of the parties or that creates any conflict in the law that needs to be resolved by the Divisional Court. Conclusion [ 9 ] For these reasons, the motion for leave to appeal is dismissed. Costs [ 10 ] I have endorsed the back of the Supplementary Motion Record, “For reasons delivered orally, the motion for leave to appeal is dismissed.

The parties have agreed that the moving party shall pay to the responding parties their costs of this motion fixed in the amount of $4,500 and it is so ordered.” SACHS J. Date of Reasons for Judgment: November 5, 2013 Date of Release: November 8, 2013 CITATION : Dominion of Canada General Insurance Company v. MD Consult Inc., 2013 ONSC 6906 DIVISIONAL COURT FILE NO.: 123/13 DATE: 20131105

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS J. BETWEEN: THE DOMINION OF CANADA GENERAL INSURANCE COMPANY Plaintiff – and – MD CONSULT INC. o/a Toronto Regional Medical Assessment Centre, MD ASSESSMENT CONSULT INC., PACIFIC ASSESSMENT CENTRE INC., a.k.a.

Pacific Rehab & Therapy Inc., 2171713 ONTARIO INC. o/a Fairview Assessment Centre Inc., Ancaster Rehab, Universal Injury Rehabilitation Centre, Assessment Direct and Human Health Clinic, TRAFFIC LAW ADVOCATE (E.E.) PROFESSIONAL CORPORATION, DANNY GROSSI, VITALI TOURKOV, ABRAM ZILBER, EVGENI EVDASSIN, FAIRVIEW ASSESSMENT CENTRE INC., ALEXANDER LOBATCH Defendants AND BETWEEN: CO-OPERATORS GENERAL INSURANCE COMPANY, HB GROUP INSURANCE MANAGEMENT LIMITED and COSECO INSURANCE COMPANY Plaintiffs -and – PACIFIC ASSESSMENT CENTRE INC. a.k.a.

PACIFIC REHAB & THERAPY INC., FAIRVIEW ASSESSMENT CENTRE INC., 2171713 ONTARIO INC., CENTURY DIAGNOSTIC & ASSESSMENT CENTRE INC., M.D. CONSULT INC., o/a TORONTO REGIONAL MEDICAL ASSESSMENT CENTRE, M.D. ASSESSMENT CONSULT INC., VITALI TOURKOV, ALEXANDRE LOBATCH, ABRAM ZILBER, PAVLO TSYSAR, DANNY GROSSI and YANIV TAMSOUT Defendants AND BETWEEN: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Plaintiff

-and – PACIFIC ASSESSMENT CENTRE INC., a.k.a. Pacific Rehab and Therapy Inc., FAIRVIEW ASSESSMENT CENTRE INC., 2171713 ONTARIO INC., MD CONSULT INC. o/a TORONTO REGIONAL MEDICAL ASSESSMENT CENTRE, M.D. ASSESSMENT CONSULT INC., TRAFFIC LAW ADVOCATE (E.E.) PROFESSIONAL CORPORATION, VITALI TOURKOV, ALEXANDRE LOBATCH, ABRAM ZILBER, DANNY GROSSI, EVGENI EVDASSIN, YANIV TAMSOUT, ALLA LOBATCH and DAN SUT Defendants ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: November 5, 2013 Date of Release: November 8, 2013