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Civil and Administrative
Litigation Opinions
for Self-Reppers


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Insurance - Trial Practice

. 1770650 Ontario Inc. v. McEnery

In 1770650 Ontario Inc. v. McEnery (Ont CA, 2023) the Court of Appeal considered denial of a garnishment motion ["to compel payment of the amount of their judgments from the lawyer’s insurer"] under R60.08(16) against an insurer (LPIC), here where the appellants had judgment against the insurer's insured. The garnishment was unsuccessful as the insurer had exhausted the coverage value ($500k) of the policy on legal defence and investigation efforts - but the interesting point (to me) was the use of garnishment provisions in an effort to effectively obtain judgment against the insurer:
[4] In February 2020 each of the appellants obtained a judgment against McEnery; the appellant 1770650 Ontario Inc.’s judgment is for $241,000 plus interest and costs, and the appellant 1062484 Ontario Inc.’s judgment is for $380,000 plus interest and costs.

[5] McEnery did not pay the judgments. The appellants therefore commenced garnishment proceedings. They moved, under r. 60.08(16) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for a determination that the respondent Lawyers’ Professional Indemnity Company (“LawPRO”) owed money to McEnery under a policy of insurance (the “Policy”) that it had issued in 2015. McEnery was one of the insureds under the Policy. The appellants asked that the proceeds of the Policy be paid to them in satisfaction of McEnery’s judgment debts.

....

[19] In analyzing this issue there are a few matters that are particularly germane. First, on a motion under r. 60.08(16), the creditor (here, the appellants) stands in the shoes of the debtor (here, McEnery) in terms of the ability to prove an entitlement against the garnishee (here, LawPRO). Therefore, we are concerned with whether LawPRO breached a duty to McEnery in spending funds on defence and in not effecting a settlement with the appellants.
. Girao v. Cunningham

The case of Girao v. Cunningham (Ont CA, 2020) is a remarkable ruling. That it had to be written this way is an embarrassment to the legal profession. It should be read by any litigation lawyer, especially those practicing MVA litigation, as a salutory lesson in dealing with self-representing parties. On it's face it was an appeal of an MVA tort jury award, but the Court of Appeal took the oppourtunity to review numerous (sadly, necessary) basics of civil litigation. Dealing at trial with a self-represented plaintiff who relied on a Spanish interpreter throughout, the Court of Appeal used defence behaviour as object lessons in why these legal principles are important and in the end, took the unusual step of ordering a new trial from scratch [paras 7, 173-174].

I'll go through the legal principles one by one as per topic, here the implications of revealing that parties were insured in a jury trial:
[80] To set the context, the old law was that in a civil action a jury must be discharged automatically if something happened at the trial from which the jury might reasonably infer that the defendant was insured. The belief was that a jury sympathetic to the plaintiff would not hesitate to reach into the defendant’s insurer’s deep pocket to excessively compensate the plaintiff. The mention of insurance no longer necessarily results in the jury’s automatic discharge, because the court understands that juries share the general public awareness that motor vehicles are insured. See Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092.

[81] If anything, the fact the jurors are savvy about car insurance leans in the other direction. Jurors are aware that larger insurance awards can increase the costs of the car insurance premiums they pay. The Ontario Law Reform Commission noted that one speculative explanation for the tendency of juries to make lower awards than judges was “the jurors’ self-interest in keeping insurance premiums low”: Report on the Use of Jury Trials in Civil Cases (Toronto: Ontario Law Reform Commission, 1996), at p. 28.


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Last modified: 10-04-23
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