An Insured was Ordered to Produce a Representative With Proper Knowledge
The insured refused to answer certain questions on discovery on the basis of relevance and lack of knowledge. The court granted the insurer’s motion for an order that the insured produce an alternative representative with the proper knowledge and that the representative be compelled to answer the questions refused on the basis of relevance.
Insurance law – Practice – Examination for discovery – Scope – Persons discovered – Pleadings – Underlying action – Evidence – Policies and insurance contracts – Material non-disclosure – Misrepresentation in obtaining insurance – Rights and duties of insurer
Roman Catholic Episcopal Corp. for the Diocese of Sault Ste. Marie v. Axa Insurance (Canada),  O.J. No. 630, February 10, 2015, Ontario Superior Court of Justice, E.E. Gareau J.
This was a motion brought by the insurer for an order that the insured Catholic Diocese produce the Bishop of the Diocese for discovery, and that the Bishop be compelled to answer questions which the insured’s previously discovered representative had refused to answer on the basis of relevance or lack of knowledge. The action had been brought by the insured for coverage for monies the insured had paid out with respect to 16 sexual abuse claims stemming from the time the policy was in effect: 1963 to 1970, having been renewed in 1967. The insurer took the position that the policy was void on the basis of material misrepresentation, material non-disclosure and bad faith.
The insured had pled and specifically relied on an earlier Ontario decision and refused to answer certain questions on discovery on the basis that the questions were irrelevant in light of that decision. The decision involved the duty to defend allegations of sexual abuse against the church. The court held that the insured could not rely on the decision because it had not dealt with the issues of misrepresentation and material non-disclosure raised by the insurer in its pleadings, and was therefore distinguishable.
The other issue involved questions pertaining to a 1962 law passed by the Vatican dealing with how certain clerical crimes were to be investigated and tried, which the insured’s representative had refused to answer due to lack of knowledge. The Bishop was qualified to speak to canon law and to answer the insurer’s discovery questions. The court held that unless the insurer was given the opportunity to ask questions pertaining to the canon law, then the defences raised by the insurer in its pleadings could not be fully explored and adjudicated on by the court. The court granted the order sought by the insurer, but stated that ordering a second discovery was an exception and should be granted sparingly.
This case was digested by Michael J. Robinson and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at firstname.lastname@example.org or email@example.com or review their biographies at http://www.harpergrey.com.
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