Insurer’s ‘scandalous’ pleading regarding injured lawyer rejected in $4-million tort claim
Plaintiff’s counsel also barred from communicating with defence experts in ‘acrimonious’ case
An insurance lawyer injured in a motorcycle crash can not be accused of using her professional skills to boost the value of her own claim, an Ontario Superior Court master has ruled.
According to a recent ruling by Master Jay Josefo, the lawyer launched a $4-million tort claim against the driver of a car that came into contact with the back of her motorcycle in a 2016 incident, claiming the accident had left her with significant impairments. The defendants, on the other hand, claim the accident was a low speed one that resulted in only minor property damage.
After delivering their statement of defence back in June 2017, the defendants later changed lawyers. Since then, “the case has become, unfortunately, increasingly acrimonious amongst counsel,” Master Josefo wrote in his decision.
Just months ahead of trial, the defendants sought to amend the original statement of defence delivered by their old representative, including new paragraphs touching on the plaintiff’s employment experience as an insurance defence lawyer working in accident benefit and tort motor vehicle claims, her attendance at a professional development seminar on concussions and a law school insurance law class taught by her own counsel.
Taken together, the defendants wanted to allege that that these factors made the plaintiff a “sophisticated litigant,” putting her “in a position to exaggerate, manipulate and/or or over report any alleged injuries and symptoms which were allegedly sustained as a result of the motor vehicle accident (which are not admitted but denied) in order to try to increase the amount that she can claim from this motor vehicle incident.”
Master Josefo was happy to accept the amendments describing the plaintiff’s education and employment history, but saw the subsequent allegation as a step too far.
“What is being advanced is essentially calling the plaintiff the next thing to a civil fraudster, alleging that she is trying to obtain more in compensation than to which she arguably may be entitled from an insurer, and that she is purposely doing this by way of exaggeration and manipulation,” the master wrote. “This proposed pleading seeks to colour the plaintiff negatively, in order to cause her prejudice. These are allegations which, in my view, are unbecoming for the Court to hear.”
Even if the pleading had been included in the original statement of defence, Master Josefo wrote that the plaintiffs would likely have succeeded in an application to strike them.
“I find [the proposed paragraph] of the amended statement of defence to be untenable, with no legal potential. It is also a scandalous plea,” he concluded. “Thus, it is not a permitted amendment.”
The defendants also failed in an attempt to remove the plaintiff’s counsel because of their intention to call him as a witness regarding the law school class he taught his client back in 2014.
However, the defence scored at least some success with Master Josefo, when he granted their request to have the plaintiff attend three independent medical examinations without conditions. He also ordered the plaintiff’s lawyer to cease communicating with the defendants’ selected medical examiners after a neuropsychologist quit the case following what the master described as “inappropriate” correspondence from opposing counsel.
The letter expressed concern about “ghostwritten” medical reports and informed the neuropsychologist that further consent would be needed from the plaintiff before he could prepare any supplementary reports or addenda. The letter also requested confirmation that the doctor would not disclose any information to anyone other than the plaintiff or the lawyers involved, warning that failures in either regard could be considered professional misconduct.
“In my view, this letter was extremely heavy and high-handed in its various admonishments and diktats; and fairly would be perceived as threatening in tone and content. Referring to professional misconduct, and to ones regulatory body, for example, can in the context of this letter clearly be seen, reasonably, as a threat or as an attempt to intimidate,” Master Josefo wrote, noting he was unsurprised to see the expert drop out after receiving the letter.
“I find that I have jurisdiction to direct all counsel for plaintiff to not communicate further to or with defendants’ experts. Given the actual and further potential deleterious impact of such communications, and that it is frankly improper for the plaintiff to attempt to impose terms on the defendants’ experts, I so direct that all such communications cease,” he continued.
Counsel for the plaintiff did not wish to comment because some portions of Master Josefo’s ruling are under appeal, while defence counsel did not respond to a request for comment.
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