Canadian Underwriter

$14,833 insurance claim dismissed after eight years for “abuse of process”

March 7, 2018   by David Gambrill

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Ontario’s Superior Court recently dismissed, as an “abuse of process,” eight years of legal proceedings launched by a plaintiff against Peel Mutual Insurance Company over a $14,833.77 break-and-enter claim that was dismissed by Small Claims Court in September 2011.

“These proceedings have a long and tortured history,” Ontario Superior Court Justice Robert E. Charney wrote in the early part of his judgment in Brown v. Peel Mutual Insurance Company.

Ultimately, Charney found the plaintiffs had attempted to circumvent a Small Court Claims decision against them by launching separate actions against the insurer in Superior Court.

“The plaintiffs have done nothing to move their Superior Court action forward since it was commenced nearly seven years ago,” Charney noted. “The Superior Court actions appear to be an effort by the plaintiffs to avoid compliance with the Small Claims Court orders…[in 2011] that they chose to ignore. This too is an abuse of process.”

The case ultimately resulted in cost awards to Peel Mutual totaling just under $48,000. “No payments have been received by Peel Mutual from the Browns on account of the damages awarded by the Small Claims Court or any of the costs awarded to Peel Mutual in these proceedings,” Charney wrote.

The “tortured history” began when the claimant, Sylviette Rita Brown, bought a homeowner policy from Peel Mutual in 2003 to cover her single-family dwelling in Markham, Ontario. Her son, Shawn Brown, was added to the policy as an additional insured and the place was noted as a property held in trust.

Sylviette Brown reported a break-in to York Regional Police on Jan. 5, 2009. Peel Mutual investigated the claim and made payments to the Browns totaling $14,833.77. But the Browns refused to submit to an examination under oath, so Peel Mutual ultimately rejected the Brown’s break-enter claim.

Sylviette Brown took the mutual insurer to Small Claims Court for full payment for the property contents that she alleged had been stolen. Peel Mutual defended the claim in Small Claims Court and brought a defendant’s motion against the Browns.

During the small claims proceedings, the Browns “consistently failed to comply with settlement conference and motion orders of the deputy judge,” Charney wrote, including three orders over the course of a year to produce documents and to submit to an examination under oath.

Moreover, during the small claims hearings, the Browns indicated that they intended to increase the amount of their claim and transfer the Small Claims Court proceedings to the Superior Court. But rather than transferring the small claims proceedings to Superior Court, they issued separate Ontario Superior Court actions in Oshawa, Ontario instead.

Two days before Peel Mutual’s motion to dismiss the claim in Small Claims Court, the Browns served a motion to stay the Small Claims Court action and transfer it to the Superior Court. Peel’s motion to dismiss the Small Claims Court action proceed as scheduled, and the claim was dismissed. Peel was awarded damages of $14,833.77, and legal costs of $7,954.69.

The Browns appealed the decision in 2014 and lost, with the court awarding Peel $25,000 in substantial indemnity costs. The Browns indicated they would appeal that decision, but there are no signs they ever “perfected the appeal,” Charney wrote.

When Peel sought to dismiss the Superior Court actions, the Browns sought various adjournments related to health reasons. In one instance, in January 2017, Sylviette Brown requested an adjournment on the basis that her son was “gravely ill” and had to go to the hospital. The supporting medical documentation, however, showed a doctor’s referral to another doctor about Shawn Brown’s “acute vision changes with marked decreased vision at both eyes with black spots.”

“The continuation of the Superior Court actions, which were commenced by the Browns while their Small Claims Court proceedings had not yet concluded, and their failure to appeal the decisions of the Small Claims Court, amounts to such a collateral attack on the Small Claims Court orders,” Charney wrote. “If this were permitted, it would allow for the relitigation of the exact issues dealt with by the Small Claims Court, and effectively circumvent the procedural requirements of the appeal procedure. This amounts to an abuse of process.”