Levine v. Roots Canada Limited, 2012 NSSC 268

Sandra Arab Clarke, a partner in our Halifax office, was recently successful in defending a motion for production of the insurer’s entire file which the plaintiff Levine argued was necessary insofar as it may “touch upon” how the insurer handled Levine’s claim.

Levine had been injured at a Roots store in 1997. Liability and damages were severed and at the liability trial, the judge assessed liability as split equally between Levine and Roots and held that costs would be borne by each party. On the issue of damages, Levine sought production of Roots’ insurer’s entire file, without redactions, claiming that the manner in which the insurer had handled the claim prior to commencement of litigation and delay on the part of the insurer was relevant to the issue of costs and the amount of prejudgment interest to be awarded. Roots argued that the conduct of its insurer was irrelevant because liability had already been determined and each party had been ordered to bear its own costs. Roots noted that Levine was not the insured and argued that an insurer owes no duty of good faith to a plaintiff in a third party claim. Roots also argued that redacted information was either irrelevant or properly redacted in accordance with laws of evidence.

The court refused to grant Levine’s motion for production. Levine had failed to prove the evidentiary basis that raised his argument from a “fishing expedition” to an “air of reality”, the current test in Nova Scotia for relevance. The mere fact of delay and other issues raised by Levine did not make the examination of the insurer’s conduct and its entire file appropriate. Levine could not produce any authority for his argument that an insurer’s handling of a third party claim could affect the costs award between the parties. Levine did not plead the issue of the insurer’s conduct in his pleadings and therefore, it was not a matter in issue.