CITATION: Lauzon v.

Axa Insurance (Canada), 2012 ONSC 6730

COURT FILE NO.: C-428-08 and C-428A-08
DATE: 2012-11-27

ONTARIO

2012 ONSC 6730 (CanLII)

SUPERIOR COURT OF JUSTICE

B E T W E E N: )
)
Daniel Lauzon ) Morris Manning Q.C. and Frederick A.
) Shuh, Counsel for the Plaintiff
)
)
Plaintiff )
)
- and - )
)
Axa Insurance (Canada), Darlene Skinner and ) Peter Kryworuk and Tyler Kaczmarczyk,
Ron Williams, ) Counsel for the Defendants
)
)
Defendants )
)
- and - )
)
The Corporation of the City of Waterloo ) James H. Bennett, Counsel for the Third
) Party (did not appear or participate in these
) motions)
)
Third Party )
)
) HEARD: October 22nd, 2012

RULING ON MOTIONS

GLITHERO, J.

[1] This action arises out of a flood which damaged the plaintiff’s residential property on

or about January 9, 2008. The property was insured by the defendant Axa and the other two

defendants are employees of that defendant.

 -2-

[2] The action was commenced May 1, 2008, and the plaintiff claims $300,000, primarily

for damage to the premises, and $1,000,000 based on various allegations arising out of the

2012 ONSC 6730 (CanLII)

manner in which the defendants responded to the claim. I will for purposes of this ruling refer to

these as the “bad faith claims”.

[3] The defence admits that a loss was sustained, but denies liability on the basis that the

damage occurred as a result of blockage of storm drains, which is said to fall within a policy

exclusion.

[4] There are two motions before me:

a) The defendants move for an order compelling the plaintiff to attend either at an

examination under oath or, alternatively, an examination for discovery to answer

questions pertaining to the scope and quantum of the plaintiff’s damages, and to

compel the plaintiff to produce documentation relevant to those damages.

During submissions, this was referred to as the “main motion”, understandably, as it is

the existence of this motion which is the foundation for the second one.

b) The defendants move for an order quashing a Summons to Witness served on

Anthony J. Bedard on May 22, 2011, returnable on July 14, 2011, and

subsequently adjourned.

Mr. Bedard is the appraiser appointed under the Insurance Act by the defendants and is

now counsel of record for them in the action.

 -3-

[5] A summary of the events preceding and giving rise to these motions is necessary.

These events are relevant to both motions and are as follows:

2012 ONSC 6730 (CanLII)

Summary of Background Events

[6] The flood damages are alleged to have occurred on January 9, 2008. The statement of

claim was issued on May 1, 2008. The statement of defence is dated June 13, 2008. The third

party claim was issued October 29, 2009, with a third party defence delivered January 28, 2010.

[7] By letter dated October 20, 2008, plaintiff’s counsel served proof of loss dated

October 9, 2008.

[8] On the face page of the proof of loss the claimant claims “replacement costs” at

$171,190.12, “cash value” as being the same amount and “total loss or damage” as being the

same amount, and makes a claim under the policy for the same amount of $171,190.12.

Attached to the proof of loss is a summary of proof of loss, with the six heads of loss being:

cleanup costs, restoration costs, replacement of items costs, offsite emergency living expenses,

legal fees and banking fees, with amounts for each. The total of those items plus interest

amounts to $171,190.12.

[9] There is then a summary page which relates to the “replacement of items costs”

component from the first page and breaks that claim down in terms of the amounts sought in

respect of six different rooms and an item for closets. Also attached is a list of items from

closets said to be damaged by floodwaters, with a “estimated value” in respect of each item, a

similar page for items said to be damaged in the family room, another for items said to be
 -4-

damaged in the laundry room, another for the fruit cellar, another for the computer room, another

for mud-room and finally one for the garage. All of these room by room itemizations of

2012 ONSC 6730 (CanLII)

“damaged items resulting from floodwaters” contain a figure for “estimated value” only and

contain no supporting original purchase information or replacement cost information and no

purported breakdown of how the reported “estimated value” was calculated.

[10] No supporting documentation whatsoever is provided for the claimed items for

cleanup costs, restoration costs, offsite emergency living expenses, legal fees or banking fees.

[11] By letter dated December 12, 2008, defence counsel acknowledged receipt of the proof

of loss and indicated that it was being reviewed and that counsel would advise as to the

sufficiency of the proof of loss with respect to the requirements of Statutory Condition 6. She

also asked for the process used at arriving at the estimated value of the damaged items. By letter

dated January 22, 2009, defence counsel advised the plaintiff’s counsel that Axa was prepared to

accept the proof of loss as submitted “on condition that it is agreed that any further questions

regarding the nature and extent of the loss, as outlined in Statutory Condition 6, can be addressed

through the discovery process in this litigation, through productions, oral examinations for

discovery of your client, undertakings and any follow-up thereon.” It further provided that on

that basis the statement of defence would not be amended to address the issues relating to the

proof of loss. By letter dated November 9, 2009, defence counsel requested immediate

information pertaining to the dates of purchase for the items claimed, information as to where

they were purchased, and supporting receipts, invoices and accounts in respect of replacement

cost or repair, and did so after referring to the plaintiff’s document as a “partial proof of loss”.
 -5-

By letter dated February 22, 2010, defence counsel reiterated that their client does not have the

necessary damage information as previously requested and reiterated the information sought

2012 ONSC 6730 (CanLII)

together with the supporting documentation.

[12] By letter dated February 24, 2010, plaintiff’s counsel expressed the position that the

plaintiff has complied with the rules with respect to document production and claimed a failure

to understand any basis in contract or in law for the defendants’ request that the further

documentation be produced.

[13] By letter March 4, 2010, defence counsel wrote plaintiff’s counsel detailing the

requirements of Statutory Condition 6 as to the detail required with respect to the claim for

property damage, and referring plaintiff’s counsel to Statutory Condition 9, requiring an insured

to submit to an examination under oath. It also refers to plaintiff’s counsel to Statutory

Condition 11, regarding the appraisal procedure available under the Insurance Act as

incorporated into the policy.

[14] By letter dated April 28, 2010, defence counsel advised the plaintiff’s counsel that the

valuation of the loss was being referred to appraisal pursuant to Statutory Condition 11 and

advised that Mr. Anthony Bedard had been appointed as the insurer’s appraiser, and refers to s.

128 of the Insurance Act. The letter also indicates the defendant’s desire to proceed with the

examination for discovery of the plaintiff with respect to coverage issues and to proceed with an

examination under oath in respect of the quantum of the damage claim, and suggests that both

examinations be conducted the same day.

 -6-

[15] By responding letter dated May 15, 2010, plaintiff’s counsel advised that the

plaintiff’s appraiser will be George Milne. Further, it advises that because the defendants elected

2012 ONSC 6730 (CanLII)

the appraisal procedure pursuant to the statutory condition, the plaintiff was unsure as to what

rights of discovery were left open to the defendants and confirmed June 11, 2010, as the day for

the examinations of the plaintiff “to the extent that the insurer’s entitled to discoveries”.

[16] By letter dated May 30, 2010, plaintiff’s counsel reiterated the position that the

property damage issue is mandated to be done pursuant to the appraisal process as the defendants

had seen fit to choose that route, and asserts the only matter available for discovery is the issue

of liability.

[17] By letter dated June 7, 2010, defendants’ counsel asserted the position that the

discovery process and the appraisal process were distinct and referred to the Court of Appeal

decision in Baig v. Guarantee Company of North America, 2007 O.N.C.A. 847 (CanLII). The

letter specifies that the examination for discovery will relate to coverage issues, while the

examination under oath will relate to quantum of damages.

[18] The plaintiff appeared on June 11, 2010. As defence counsel sought to embark on the

examination under oath with respect to damages she was met with a blanket refusal by plaintiff’s

counsel on the basis that the appraisal procedure is the sole avenue available to deal with issues

of quantum. The examination under oath was accordingly adjourned, and the examination for

discovery on the issue of liability proceeded.

 -7-

[19] By letter dated May 22, 2011, plaintiff’s counsel wrote Mr. Bedard at Lerners LLP

confirming that he had been served with a Summons to Witness and of the plaintiff’s intention to

2012 ONSC 6730 (CanLII)

examine him with respect to his role as appraiser for the insurer. Mr. Bedard responded by letter

dated May 25, 2011, advising that the Summons is an unwarranted fishing expedition, that it is

an abuse of process, that the documentation sought to be produced according to the Summons is

information that would be available to the plaintiff from its appraiser, Mr. Milnes. The letter

advises that steps will be taken to quash the summons. The letter reiterates that any examination

pursuant to the summons has to be relevant to issues on the motion in respect of which the

examination was sought. It reiterates Mr. Bedard’s view that the motion relates to defence

efforts to compel the plaintiff to comply with its contractual obligation to provide evidence

quantifying the damages and that the Summons to Witness served upon him can’t possibly be

relevant to those issues.

[20] Mr. Bedard and Mr. Milnes, the respective appraisers, agreed to have to Mr. Greg

Brimblecombe, a Kitchener lawyer, act as umpire in the appraisal process. Mr. Milne, the

plaintiff’s appraiser, insisted that Mr. Brimblecombe proceed with the appraisal despite the fact

that the defendants’ motion to compel the plaintiff to submit to examination under oath with

respect to the quantum of damages was still pending before the court. The two appraisers and

the umpire, Mr. Brimblecombe, had a teleconference on June 25, 2012, during which the two

appraisers made their submissions. By email sent June 25, 2012, the umpire, Mr. Brimblecombe,

expressed the opinion that the appraisal could not proceed as to date there was no “true

disagreement” as to quantum. He opined that “the parties have to have sufficient information

from one another to know that the dispute exists”. He reiterated his understanding of the
 -8-

defendant’s position that it had insufficient information to ascertain whether any dispute exists

on the quantum issue. He expressly declined to offer any comment on whether the insurer was

2012 ONSC 6730 (CanLII)

entitled to proceed with the examination under oath, holding that “comment on that issue is

outside the scope of this proceeding”, and he agreed with the defendants’ position that the matter

could not proceed immediately and could not proceed until the plaintiffs are able to provide

sufficient detail about their claim so as to enable the appraisers and the umpire to accurately

ascertain the dispute.

[21] Thereafter, both Mr. Milne, the plaintiff’s appraiser, and Mr. Shuh, one of plaintiff’s

counsel, continued to contact umpire Brimblecombe seeking to have him proceed with the

appraisal process. There has been no additional response from umpire Brimblecombe.

The Motion to Quash the Summons

[22] This is a summons issued pursuant to Rule 39.03 requiring Mr. Bedard to attend to be

examined as a witness before the hearing of the pending motion (the main motion). It was

originally returnable on July 14, 2011. As the defendants moved to quash the summons, the

examination has been adjourned pending the outcome of the motion to quash. If the summons is

not quashed then the examination of Mr. Bedard would proceed and lead to the production of a

transcript of his examination which would then be available for use on the main motion. Both

motions were returned before me at the same time, but obviously I must rule on the motion to

quash first. If it fails I can proceed to rule on the main motion. If the summons is not quashed,

the examination would proceed and the main motion will have to further adjourned.
 -9-

[23] The summons requires Mr. Bedard to bring with him all written or electronic

correspondence between he and Mr. Milne, the appraiser appointed by the plaintiff; all notes and

2012 ONSC 6730 (CanLII)

recordings of telephone conversations between the 2 of them; and all other documents relating to

the appraisal process.

[24] The main motion was commenced by notice of motion dated April 21, 2011 and originally

returnable May 4, 2011, and subsequently adjourned to July 14, 2011. The summons to Mr.

Bedard was served on him on May 22, 2011 and was returnable July 14, 2011. This motion to

quash the summons was made returnable July 14, 2011 as well.

[25] By letter dated May 22, 2011 counsel for the plaintiff advised Mr. Beddard that he would

be examined with respect to his role as the appraiser for the defendants. By return mail Mr.

Beddard advised plaintiff’s counsel that was an abuse of process, and encroached on solicitor

client privilege in respect to the demand for “all other documents relating to the appraisal

process”.

[26] The examination required by the summons must be undertaken with reasonable diligence.

The person summonsed to be examined must be shown to have evidence having at least a

semblance of relevance to the pending motion. In the context of this case the “pending motion”

is that of the defendants seeking an order to compel the plaintiff to attend for either an

examination under oath, or alternatively on an examination for discovery, in respect of the

quantum of the loss: Rule 39.03 (1) and (3); Apotex v Bausch, [2006] O. J. No. 3539.
 - 10 -

[27] The party seeking to examine pursuant to Rule 39.03, if the summons is challenged, has

the onus of putting forth a proper evidentiary base to support the examination of the non-party,

2012 ONSC 6730 (CanLII)

and it must amount to more than merely speculation and allegations. The evidentiary base must

demonstrate that the examination is likely to produce evidence which enhances the record to be

considered on the return of the motion---as opposed to amounting to nothing more than “a

fishing expedition”. It is not to be used as a general discovery within the action. The record must

show that the witness likely has evidence relevant to the issues on the pending motion. See

Coburn v. Barber, [2010] O. J. No. 2465 (S. C. J.-Master); Portelance v. Williams {2010] O. J.

No. 4701 (S. C. J.).

[28] When the summons requires the production of documents which is overly broad it warrants

an inference that the exercise is a “fishing expedition”: Coburn, (supra )

[29] In Manulife Securities International v Society Generale (2008), 90 O. R. (3d) 376, at

paragraph 102 Campbell J stated the test to be “the basic premise that must be satisfied is that

there will likely be evidence obtained relevant to the defendant’s motion(emphasis added)”.

[30] Where the party wishing to examine advances a proper evidentiary base demonstrating

likely relevance the onus then shifts to the party resisting the examination to show that it would

be an abuse of process, such as would be the case if the evidence sought was not necessary to the

pending motion: Coburn, (supra), at para. 106.

[31] The jurisprudence demonstrates examples of the type of circumstances which have led to a

denial of a requested examination as being an abuse of process:

 - 11 -

-where the examination is found to be for an ulterior or improper purpose—such as a

fishing trip: Palms of Pasadena Hospital v. Royal and SunAlliance Insurance Co. of Canada,

2012 ONSC 6730 (CanLII)

[2008] O. J. No. 324 (S. C. J.) at para. 15;

-where the examination is sought in respect of opposing counsel as a form of retaliation

for a perceived slight: GMAC Leasco Ltd. V. 1348259 Ontario Inc., [2004] O. J. No. 150 (S. C.

J.);

-where the examination is sought of a solicitor so as to probe solicitor-client privileged

communications: Jackson v. Vaughan, [2010] O. J. No. 527 (S. C. J.);

[32] Where a party seeks to call opposing counsel as a witness, there is an onus to demonstrate

not only that counsel would likely have relevant evidence, but also that such evidence is

necessary (emphasis added): R. v. Elliott, ([2003] O. J. No. 4694 (C.A.)

[33] Under s. 128 of the Insurance Act the role of the appraiser is to meet with the opposing

appraiser, see if the issue can be resolved, and if not to present their clients position to the

umpire. The information the appraiser might have would be that supplied by the client.

[34] In this case the complaint of the defendants is that they have not received any information

on the issue of damages, although frequently demanded. The plaintiff’s position is that the

defence isn’t entitled to any more information than it has received. It is notable that the summons

requires the witness to bring written or electronic correspondence as between the appraisers, or

notes and recordings of telephone calls between the appraisers, and “all other documents

pertaining to the appraisal process”.

 - 12 -

[35] In my assessment there is no adequate evidentiary basis shown to justify the summons.

The plaintiff’s appraiser will already have copies of the correspondence, and was a party to the

2012 ONSC 6730 (CanLII)

telephone calls. Mr. Bedard’s evidence as to what was written or said is unnecessary as the

plaintiff can get that information from its own appraiser. As to the claim for “all other

documents”, it signifies the very type fishing expedition which is an abuse of the rule.

[36] The plaintiff’s materials indicate that what is to be examined upon is discernable from the

affidavits of Laura Emmett, an associate in the office of defence counsel. I have reviewed both

affidavits and both set out the history of the matter and contain many references to the pleadings,

the exchanges of correspondence as between counsel, and describe the various exchanges as

between the 2 appraisers. Her affidavits do not refer to items on which an examination of Mr.

Bedard would provide evidence relevant to the issues in the main motion.

[37] The affidavit material filed on behalf of the plaintiff is that of his appraiser, and that of

Donna Franker, a clerk in the office of counsel. The former says nothing relevant to issues on

the main motion, as it deals with exchanges between the parties as to who would be appropriate

to act as an umpire---a matter now settled. The affidavit of Ms. Franker does nothing more than

introduce 128 pieces of correspondence as between counsel or appraisers. Accordingly the

plaintiff already has these materials and need not get copies from Mr. Bedard or examine him as

to what they say.

[38] I conclude that the examination of Mr. Bedard is unlikely to produce evidence relevant to

the main motion, and that it is unnecessary. For these reasons the Summons to Witness to Mr.

Bedard is quashed.
 - 13 -

The Main Motion

Position of the defendants, moving parties

2012 ONSC 6730 (CanLII)

[39] These defendants submit that the plaintiff must be required to provide the necessary

information in support of the damages claimed, together with supporting documentation. As the

plaintiffs failed to do so in the Proof of Loss, and have refused so either by examination under

oath, or by examination for discovery, the defendants submit that the court should order them to

do one or the other. They submit that the appraisal procedure invoked here by them does not oust

the ability of the court to compel production of the information.

Position of the responding plaintiff:

[40] The submissions on behalf of the plaintiff are that the appraisal procedure, as invoked by

the defendants here, has to be viewed as a self-contained procedure in respect of the quantum of

damages, and accordingly if falls to the umpire to determine the loss based on the submissions of

the parties. The plaintiff takes the position that the court has no jurisdiction to order the plaintiff

to attend at an examination under oath, or an examination for discovery with respect to quantum

of damages.

Relevant Legislative Provisions

[41] Statutory Condition 6, incorporated into the policy, requires that after a loss the insured

“shall….deliver as soon as practicable to the Insurer a proof of loss verified by a statutory

declaration: (i) giving a complete inventory of the destroyed and damaged property and showing

in detail quantities, costs, actual cash value and particulars of the amount of loss claimed;”
 - 14 -

[42] Statutory Condition 11 provides:

“Appraisal In the event of disagreement as to the value of the property insured,

2012 ONSC 6730 (CanLII)

the property saved or the amount of the loss, those questions shall be determined by appraisal as

provided under the Insurance Act before there can be any recovery under this contract whether

the right to recover on the contract is disputed or not, and independently of all other questions.

There shall be no right to an appraisal until a specific demand therefor is made in writing and

until after a proof of loss has been delivered.”

[43] On page 6 of the policy “Actual Cash Value” is defined as being “what the property is

worth and takes into account such things as the cost of replacement less any depreciation and

obsolescence. In determining depreciation, we will consider the condition of the property

immediately before the damage occurred, the resale value and the normal life expectancy.”

[44] Section III subsection 6 of the policy provides that the insurer will pay on the basis of

replacement cost only if the property lost or damaged is repaired or replaced with the intention to

retain as soon as reasonably possible, but in no case more than 1 year after the date of loss.

Otherwise, we will pay on the basis of actual cash value.”

[45] Statutory Condition ix on page 15 of the policy provides “After a loss which may be

insured under Section 1 of this policy, you shall as often as we reasonably require: a. submit to

examinations under oath and subscribe to same; and b. produce…members of your household or

others for examination under oath to the extent it is within your power to do so.”
 - 15 -

[46] Section 128 of the Insurance Act R.S.O. 1990, c. I.8 provides that in any contract

providing for an appraisal to determine specified matters in the event of a disagreement, each of

2012 ONSC 6730 (CanLII)

the insured and the insurer shall each appoint an appraiser, and those 2 will then appoint an

umpire. The appraisers are to determine the matter in dispute, and if they fail to agree, they are to

submit their differences to the umpire. The written finding of any 2 of the 3 of them determines

the matter. Where the parties fail to each appoint an appraiser, or in the appraisers fail to agree

on an umpire, or where the appraiser or umpire is …“incapable of acting”…a judge of the

Superior Court of Justice may appoint a replacement on application of either side.

[47] In Baig v. Guarantee Co. of North America (2007), 88 O.R. (3d) 161 the Court of Appeal

considered the scope of statutory condition as then written which provided for the right to

examine an insured under oath. The section then expressly provided that the insured was to

produce all documents relating to the matter in question. But the section otherwise was as free of

conditions as the current section is. The court allowed an appeal from a trial finding that the right

to examine under oath pursuant to the statutory condition no longer applied after litigation had

commenced. The court found that the statutory condition did not cease to exist because of

pending litigation, and held at paragraph 3 that “the scope of the examination extends to all

matters material to the insurers liability and extent thereof which the insurer has an objective and

reasonable basis to explore.” There the car insurance was obtained on the basis of an appraised

value of the car. This was not an appraisal within the scheme envisioned in s. 128. The insured

appeared for the examination but through counsel refused to allow any questions as to how the

appraised value had been determined. Counsel sought to restrict the questions to issues related to

the quantum of the loss. Then an action was commenced by the insured and a counterclaim based
 - 16 -

on misrepresentation was delivered. Then the insurer sought to examine the insured under oath

pursuant to the statutory condition. At paragraph 15 the court noted that the statutory condition

2012 ONSC 6730 (CanLII)

contained no words which indicated that the right to examine only applied until litigation

commenced. The statutory condition was to be applied according to its plain terms”.

[48] While the factual situation in Baig is different, the result in my opinion is useful. Just as

the commencement of a lawsuit did not oust the right to examine under oath, because the plain

wording did not suggest any such restriction, similarly in this case the plain meaning does not

suggest that the right terminates on an election to utilize the appraisal process under s. 128 and

statutory condition 6.

[49] Seed v. ING Halifax Insurance [2005] O. J. No. 4870 is useful. It was also a case of flood

damage and the involvement of the appraisal mechanism contained in the Insurance Act. At

paragraph 23 the Divisional Court panel majority held that “the purpose of the appraisal process

under s. 128 of the Insurance Act is to provide an expeditious and easy manner fort the

settlement of claims ….”. The case is also instructive in that the proceedings leading up to the

impugned decision of the umpire involved the Superior Court. The insured had commenced an

action and then sought an order staying the appraisal and requiring the insurer to file pleadings.

That application failed. The insurer sought an order that the appraisal proceed without further

delay. Accordingly the case is some authority that the commencement of the appraisal process

does not oust the jurisdiction of the court, and leave the umpire as the only entity with

jurisdiction over the damage quantification issue submitted to appraisal. The court retains
 - 17 -

jurisdiction to interfere procedurally as required. The decision of J. Wright J. is reported at

[2002] O. J. No. 1976.

2012 ONSC 6730 (CanLII)

Discussion

[50] I start with the position of the plaintiff, respondent. It seems to suggest that the insurer

cannot explore the quantum of the loss through the lawsuit, on examination for discovery, or on

an examination under oath, or at trial, because it implemented the appraisal process. And the

insurer can’t explore the quantum of the loss in the appraisal process because it is a self-

contained or stand alone process and accordingly the right under the Insurance Act to an

examination under oath is ousted by the election to utilize the appraisal process. If this position

were allowed to prevail the insured would have effectively insulated the quantum of his claim

from any degree of inspection, by either the insurer, or the umpire, or the court. This submission

cannot succeed.

[51] The proof of loss submitted by the plaintiff is substantially deficient and falls far short of

the statutory requirements. As a proof of loss is a pre-condition to resort to the appraisal process,

I suggested during argument that it might be appropriate to seek an order that the appraisal

process be struck and the matter proceed to discovery within the lawsuit. Counsel for the insurer

resisted that suggestion as clearly the insurer believes the appraisal process is the most

expeditious and hence least expensive way to quantify the loss. Ordinarily it would be. It is not

so given the conduct of the plaintiff. It should also be remembered that counsel for the insurer

pointed out the deficiencies in the proof of loss but agreed to proceed on the express

understanding that those deficiencies could be rectified during the discovery process. There was
 - 18 -

no timely rejection of that understanding. The defence proceeded on that basis and it would now

be unfair to allow the plaintiff to escape any form of disclosure in terms of the quantum of his

2012 ONSC 6730 (CanLII)

claimed loss.

[52] I am satisfied that I have the jurisdiction to make the order requested and require the

plaintiff to attend for examination under oath on the issue of the quantum of the loss. I find some

support for that view from the Bains and the Seed decisions as discussed above, as well as in s.

128 which permits judicial intervention in respect of a replacement umpire. If the

commencement of litigation does not oust resort to an examination under oath, neither should

resort to the appraisal process do so. Just as in Seed the court had jurisdiction to make procedural

orders necessary to give effect to the intent of s. 128, so do I in the circumstances of this case.

[53] Finally, I am of the view that I have inherent jurisdiction to make such orders as are

necessary to facilitate the sensible implementation of the statutory scheme, and to prevent an

interpretation that flies in the face of the basic concepts of modern litigation----to prevent

adjudication by ambush, to promote efficient and meaningful discovery as a means of reaching

just results, and to equip both sides (and here the umpire) with the information needed to present

a full answer and defence.

[54] For these reasons an order will go requiring the plaintiff to attend for an examination

under oath to answer questions relevant to the scope and quantum of his claim for damages, and

requiring the plaintiff to produce at least 30 days before the examination the documentation

relevant to that issue, as sought in the correspondence from counsel for the defendants and as
 - 19 -

required by statutory condition 6. The examination under oath is to take place within 75 days of

the release of this ruling or such longer period as may be agreed to as between counsel.

2012 ONSC 6730 (CanLII)

Costs

[55] In the event counsel are unable to resolve the issue of costs, submissions in writing may

be forwarded to my chambers in Kitchener. Such submissions are not to exceed 5 typed pages

exclusive of bills of costs and supporting documents. Those of the defendants are to be received

within 21 days of the release of these reasons, with those of the plaintiff within 21 days of receipt

of those of the defendants. In the event that submissions are not received within those timelines

(or any extension which may be granted) the costs issue will be deemed to have been resolved on

consent.

_____________________________
C. Stephen Glithero J.

Released: November 27, 2012

 CITATION: Lauzon v. Axa Insurance (Canada), 2012 ONSC 6730
COURT FILE NO.: C-428-08 and C-428A-08
DATE: 2012-11-27

ONTARIO

2012 ONSC 6730 (CanLII)

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Danielle Lauzon

Plaintiff

- and –

Axa Insurance (Canada), Darlene Skinner and Ron

Williams,

Defendants
- and –

The Corporation of the City of Waterloo

Third Party

RULING ON MOTIONS

Glithero J.
C.S.G // dm

Released: November 27, 2012