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Further and Better Affidavit of Documents Ordered in Bad Faith Claim

In Carroll v. Aviva Canada Inc., 2020 ONSC 4683, the plaintiff brought a motion for the defendant insurer to serve a further and better affidavit of documents in an insurance dispute.

The action arose out of a motor vehicle accident. The plaintiff sued her own insurer for underinsured coverage.  The plaintiff brought a separate action against her insurer alleging that the insurer failed to act in good faith and attempted to gain strategic advantages by colluding with the co-defendants.

Schedule “B” of the insurer’s affidavit of documents did not list or describe any specific documents. Master Kaufman stated that it is not uncommon for counsel to draft a Schedule “B” of an affidavit in this manner, and, in most cases, the parties do not object. In fact, in the present case, the plaintiff drafted her Schedule “B” in a similar fashion.

To order a further and better affidavit of documents, the court must be satisfied that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents.

Master Kaufman stated that, based on the admitted fact that the insurer and the co-defendants made joint offers and used the same expert at trial, there must have been some communication between these parties which would be relevant to the allegations of bad faith being advanced.

Therefore, the court was satisfied that relevant documents in the insurer’s possession may have been omitted from the affidavit of documents. The insurer was ordered to produce a further and better affidavit of documents.

The next issue was whether the disclosure obligation ceased at some point. The plaintiff argued that the duty of good faith persists until the proceedings are fully and finally concluded. The insurer argued that the only relevant documents were those created between the date the file was opened and when the action was commenced.

The plaintiff relied on a decision in which the Court of the Appeal upheld an award for punitive damages relying in part on the defendant’s conduct at trial. The Court of Appeal held that the insurer’s obligation of good faith continues through trial.

Master Kaufman did not agree with the insurer that a document created after the commencement of an action could never be relevant.  For example, communications between counsel for the insurer and counsel for the co-defendants regarding how to respond to the plaintiff’s action would be relevant even though they post-dated the commencement of the bad faith action.