Khalid Abu-Hmaid, the plaintiff in the following legal dispute, was involved in two separate vehicular accidents in February and September of 2009, for which a single action was taken in 2011. Examinations for discovery were held in 2014, where the defendants moved for nineteen undertakings and items taken under advisement and nine refusals. By the time the issue came to trial in 2016, there were only three matters that had been refused and which remained for the judge to decide.
The first matter in Abu-Hmaid. V. Napar, was in relation to an alleged assault the plaintiff claimed occurred in in January 2012. According to the plaintiff, while shopping with his family at a flea market, someone he knew pushed him hard in the chest, causing him to fall to the ground. Counsel for defence sought the name and address and last known contact information for the individual who allegedly assaulted the plaintiff. The plaintiff refused to comply with the request, asserting that any physical injuries he sustained from the assault would be in his medical records, which he was providing.
Applying the rule of proportionality, the judge acknowledged that he did not think the specifics about the alleged assailant would necessarily add anything to the case and as a result upheld the plaintiff’s refusal to provide related information. However, it was noted that should the plaintiff decide to call the individual as a witness to the severity of the attack, then the information would have to be provided.
The second matter also involved information about another individual, i.e. the name and address of the plaintiff’s then-girlfriend, at the time of the alleged attack. As with the previous matter, the judge ruled that the information was not relevant to the case unless the plaintiff planned to call the woman as a witness, in which case he would have to provide her information to defence counsel.
The third matter was the most complex and dealt with the issue of cost insurance disclosure. The plaintiff refused to disclose whether or not he had acquired adverse cost insurance, otherwise known as After the Event (ATE) Insurance. As a result, the defendant moved to compel the plaintiff to answer. The defendant referenced Rule 30.02 (3) of the Rules of Civil Procedure, which states that “a party shall disclose an insurance policy under which an insurer may be liable, to satisfy all or a part of a judgement in the action, or to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgement.”
Adverse cost insurance or ATE insurance provides a form of protection for litigants, in the event that they must pay costs to the other party after losing a personal injury case. A benefit of this type of coverage is that it helps even the playing field between individual plaintiffs and multi-billion dollar insurers. That is, plaintiffs would no longer feel pressured to accept unfair settlements or abandon their claims entirely due to the threat of post-trial costs.
After a reading of the Rule, the judge in Abu-Hmaid stressed that no information concerning an insurance policy is admissible in evidence unless it is relevant to an issue in the action. In that vein, the judge decided that the existence of the adverse cost protection was relevant to the resolution of the current dispute and relevant to the resolution of personal injury disputes, and therefore should be disclosed by the plaintiff. However, the judge added that he did not believe that the specifics of the policy or the carrier was of any probative value in the case. Applying the rule of proportionality together with Rule 1.04 (2), the judge concluded that the plaintiff must simply acknowledge whether he currently had adverse cost indemnity or adverse cost insurance and if not, whether or not he intended to purchase said protection in the future.
The process of successfully filing a personal injury claim can be a complex and arduous one involving numerous required documents, statements and legal steps. This is one of the reasons why it is important to seek the counsel of an experienced and skilled personal injury lawyer to successfully guide you towards a favourable outcome. Our team of personal injury lawyers at Rastin & Associates are well-respected and possess years of experience in resolving complicated personal injury cases.
If you or someone you love has been involved in an accident, do not hesitate to call or visit our office today. We will be happy to provide an initial no-obligation consultation to discuss the specifics of your case and provide a straightforward assessment of your optimal course of action.
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