An out-of-province insurer may not be entitled to conduct money to compensate a representative for attending at an Examination for Discovery

The insured Plaintiff brought a motion that he not be required to pay attendance money in order to conduct an oral examination for discovery of a knowledgeable person produced by the Defendant. The Defendant insurance company argued unsuccessfully that it did not reside in Manitoba and its designated knowledgeable person was in Vancouver.

MacAngus v. Royal and Sunalliance Insurance Co. of Canada, [2009] M.J. No. 382, October 30, 2009, Manitoba Court of Queen’s Bench, M. Kaufman J.

The Plaintiff’s boat was insured by the Defendant insurance company. As a result of a collision, the boat was destroyed. The Plaintiff claimed $38,439 plus pre-judgment interest pursuant to the policy. The Defendant Insurer denied coverage on the grounds the driver of the boat was impaired, and in the alternative that the accident was caused by an illegal or an intentional act of the driver.

This motion was brought as a result of the Plaintiff wishing the Defendant to produce a knowledgeable person pursuant to the Manitoba Rules of Court. While the Plaintiff did not designate a specific person for the Defendant to produce, he suggested that the insurance adjuster retained by the Defendant to investigate the claim could be the local knowledgeable representative . The Defendant Insurer argued that there was no suitable local representative and that it wished to bring a knowledgeable representative from Coast Underwriters Limited in Vancouver.

The Defendant maintained that it had no offices in Manitoba and it conducted no business in Manitoba. The Defendant’s managing general agent was Coast Underwriters Limited in Vancouver, who issued the policy in question from its Vancouver office. It also submitted that the policy was brought to Coast Underwriters by the Winnipeg office of Marsh Canada, an insurance broker.

The Insurer was licensed under the Manitoba Insurance Act, and section 22(2) outlines who will be deemed an insurer carrying on business within the province. The Court held that the Defendant met several of the criteria for carrying on business in the province contained within s. 22 of the Insurance Act. The judge went on to say that it would be inconsistent with the intent of the Insurance Act to allow the Defendant to sell insurance in Manitoba and then to behave as a disconnected stranger when an insured seeks indemnity.

The judge held that the term “residence” was a flexible term to be interpreted in the context of a case, and that in conjunction with the Manitoba Insurance Act, he was persuaded that the Defendant resided in the province of Manitoba for the purposes of the Rules of Court. Accordingly, no conduct money needed to be paid.

This case was originally summarized by Neil J. MacDonald and originally edited by David W. Pilley.

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