Trottier v. Beauchamp et al. – Scandalous Statistics and Purchasing Patterns in Pleadings

It is said that there are three types of lies – lies, damn lies and statistics. So can statistics, especially those relating to insurance purchasing patterns, ever make their way into pleadings and stick? This very question was recently addressed in Trottier v. Beauchamp et al., 2013 ONSC 2972.

Facts – Insurance Brokers Negligent for Failing to Recommend Increased Coverage?

Trottier was injured in a car accident in November of 2009. At the age of 32, he suffered a traumatic brain injury that left him requiring 24 hour attendant care for the rest of his life. His damages were significant. The at fault drivers were underinsured with liability limits of only $3,000,000.

Trottier had a personal automobile insurance policy with third party liability limits and an OPCF 44R of $1,000,000 with Allstate. These limits did not exceed the limits of the at fault drivers. As such, the OPCF 44R endorsement would not indemnify Bryan for his unpaid damages.

Trottier launched an action against Allstate and the two insurance brokers he dealt with, claiming professional negligence. He contended that the Defendants only recommended the $1,000,000 coverage. For over six years, the insurance agents never recommended that he should increase his third party liability limits and family protection coverage.

The Defendants countered that they advised Trottier in 2003 of the option to purchase $2,000,000 policy limits for these coverages. He was also provided with four policy renewal offers between 2003 and 2009. All of these offers set out and recommended the option to purchase the increased coverage. They asserted that, like many customers, the Plaintiff opted for lower coverage to save money.

Purchase Patterns Appear in Defendants Pleadings – Scandalous or Relevant to Credibility?

In their defence, the Defendants included two paragraphs providing statistics relating to the amount of insurance coverage most drivers in Ontario were buying:

  • As of August 2003 (the date of the policy’s inception), over 90% of motorists in Ontario elected the $1,000,000 third party liability/family endorsement coverage.
  • As of the date of the accident in 2009, approximately 90% of motorists in Ontario were still opting to purchase the $1,000,000 coverage for third party liability/family endorsement protection.

The Plaintiff responded by bringing a motion to strike these two paragraphs from the Statement of Defence. Counsel argued that they offended Rules 25.06(1) and/or 25.11 of the Rules of Civil Procedure (Brief refresher: pleadings can contain material facts, but not evidence. The Court can strike out paragraphs in pleadings that are prejudicial, scandalous or an abuse of process).

The Plaintiff claimed that this case was about allegations of negligence that were fact driven and specific to the circumstances. This case had nothing to do with the general insurance habits of drivers in Ontario. As such, the paragraphs should be struck out as scandalous.

The Defendants’ position was that these paragraphs were relevant to the issue of credibility, a central issue to this case. The statistics supported the Defendants’ credibility and their defence that despite increased coverage being recommended, the Plaintiff, like most other Ontario drivers, maintained his policy limits of $1,000,000.

Decision of J. Gauthier – General Insurance Statistics Not Material Facts Where Duty Owed by Brokers is for Personalized Service

Justice Gauthier noted that this case came down to the issue of whether the purchasing trends of Ontario drivers in 2003 and 2009 were material facts to the case. If they were, then these paragraphs would not be struck (in accordance with Toronto (City) v. MFP Financial Services Ltd.,[2005] 17 C.P.C. (6th) 338, at para. 15). If they were not material facts, then the two paragraphs would violate Rule 25.06(1) and should be struck from the pleadings.

The linchpin in this decision was the duty of care owed by insurance brokers. As noted by the Supreme Court, the duty is to provide a service which is “highly personalized, concentrating on the specific circumstances of each client” (See Fletcher v. Manitoba Public Insurance Corp., [190] 3 S.C.R.). As such, it was held that knowing what mostOntario drivers did in the past would not be helpful in determining what this particular driver did.

Justice Gauthier was also not satisfied that general purchasing patterns of Ontario drivers would assist with any credibility contest between the Plaintiff and Defendants. It was ultimately held that:

  • The two paragraphs added nothing to the claim.
  • The information conveyed was not necessary for a complete cause of action, nor did it include facts that establish the constituent elements of the claim or defence
  • The paragraphs did not affect the determination of the parties’ rights.

(Need some late night reading on these points? Take a gander atBruce v. Odhams Press Ltd., [1936] 1 K.B. (Eng. C.A.), Thermionics Ltd. V. Philco Products Ltd., 1940 CanLII 43 (SCC), [1940] S.C.R. 501 (S.C.C.) at p. 505 and Hammell v. British American Oil Co., [1945] O.W.N. 742 (Ont. H.C.))

  • As the evidence or facts pleaded in the two paragraphs was not material, they were struck out of the Statement of Defence pursuant to Rule 25.06(1).

As noted in Toronto (City) v. MFP Financial Services Ltd., there is no bright line between material facts, particulars and evidence. That being said, pleadings cannot ‘violently offend’ the Rules or be prejudicial to the other side.

If you have any questions about this blog or a similar file please contact our Special Ivestigations practice group.