Twenty-five years ago, Louis Champagne radiomutuel inc.[1] established the right to obtain a copy of the opposing party’s insurance policy in order to involve its insurer in the claim. This right was confirmed in a recent Court of Québec judgment.[2]

The Facts

The plaintiff, Promutuel Insurance Verchères Les Forges, claimed $21,811.27 for compensation paid to its insured regarding a water leak, which it attributed to work done by the defendant, Couvreurs M. St-Louis et Fils.

Promutuel requested a copy of the defendant’s insurance policy in order to commence a claim against its insurer. After having agreed in the case protocol to disclose its policy, the defendant later refused. Promutuel filed a notice of case management to compel its disclosure, while also seeking reimbursement of its extrajudicial fees.

Insurance Policy Disclosure

Promutuel invoked its right under article 2501 of the Civil Code of Québec to “[…] bring an action directly against the insured or against the insurer, or against both.” The defendant argued that its insurer’s intervention would force it to pay the $17,000 deductible and cause it to lose control over its defence, thus causing it disproportionate harm relative to the claimed amount ($21,811.27).

Justice Pierre Allen based his decision on Louis Champagne and Intact, compagnie d’assurance,[3] where the defendant also justified its refusal to disclose its insurance policy by invoking the principle of proportionality under article 18 of the Code of Civil Procedure. In that matter, the judge ruled that [TRANSLATION] “the principle of proportionality cannot limit a party’s right to sue another.”[4]

Thus, the Court granted Promutuel’s request, ordering the defendant to disclose its policy.

Extrajudicial Fees

Promutuel submitted that the defendant acted abusively in refusing to disclose its insurance policy despite agreeing to do so in the case protocol (which is a judicial contract). Promutuel therefore submitted that the defendant be ordered to reimburse the extrajudicial fees incurred in the preparation and filing of the case management.

The judge agreed with the defendant. The proportionality grounds invoked to justify the disclosure refusal were held [TRANSLATION] “neither frivolous nor vexatious.”[5] Given the amount of the claim and deductible, the defendant understandably preferred not to involve its insurer. The judge also specified that [TRANSLATION] “for conduct to be unconscionable, it must be detrimental,” whereas the detriment to the plaintiff in this case – a delay in obtaining the requested document – was deemed minor.[6]

Conclusion

This case reinforces the right to obtain disclosure of the defendant’s insurance policy.

It will be interesting to see if the defendant’s main argument – that it will have to pay its deductible if its insurer is involved in the case – ends up being substantiated.