Executive Summary: Key Legal and Evidentiary Issues

• Dispute centers on Aviva’s duty to defend and indemnify RCECO under historic liability insurance policies for sexual abuse claims from the 1960s to 1980s.

• Aviva challenges the relevance and necessity of examining its employee, Mr. Djukic, in the context of a production motion regarding further affidavit of documents and answers to discovery refusals.

• The RCECO seeks to clarify inconsistencies between Aviva’s counsel’s affidavit and Mr. Djukic’s prior discovery evidence, particularly regarding policy wording and document possession.

• The court considers whether the proposed examination is relevant, necessary, proportionate, and not an abuse of process under Rule 39.03.

• Aviva alleges the examination is duplicative, unnecessary, and a misuse of process, while the court finds otherwise.

• The motion to quash the summons for Mr. Djukic’s examination is dismissed, allowing the examination to proceed.

Facts of the case

The Roman Catholic Episcopal Corporation of Ottawa (RCECO), now amalgamated as the Roman Catholic Episcopal Corporation of Ottawa-Cornwall, managed the assets of the Archdiocese of Ottawa. Aviva Insurance Company of Canada, as the successor to several insurers, is the defendant. The dispute arises from RCECO’s claim for insurance coverage relating to fourteen underlying lawsuits alleging sexual abuse by priests between the 1960s and 1980s. RCECO asserts that Aviva’s predecessor companies issued liability policies covering the relevant periods (1969-1972 and 1980-1988). Aviva denies its duty to defend or indemnify, citing inability to confirm policy wording and alleging that RCECO had knowledge of the abuse, potentially voiding coverage due to fraudulent misrepresentation.

Background and procedural context

The parties previously conducted examinations for discovery, and RCECO served its trial record. Aviva then brought a motion seeking a further and better affidavit of documents from RCECO and answers to certain refused questions from discovery. In support, Aviva filed an affidavit from its counsel, Ms. Abbas. RCECO challenged the adequacy of this affidavit, arguing that Ms. Abbas, as counsel and not an employee or adjuster, could not provide the necessary evidence regarding Aviva’s document requests or insurance guidelines. RCECO sought to examine Mr. Djukic, an Aviva employee who had previously sworn an affidavit of documents and been examined for discovery, believing he could clarify what documents Aviva already possessed, the basis for further requests, and the relevance and proportionality of those requests.

Positions of the parties

RCECO argued that Mr. Djukic’s examination was necessary to resolve inconsistencies between his discovery evidence and Ms. Abbas’s affidavit, particularly on issues such as the existence and wording of insurance policies and the speculative nature of some of Aviva’s defenses. Aviva sought to quash the summons, contending that the examination was irrelevant, unnecessary, duplicative of prior discovery, disproportionate, and an abuse of process.

Discussion of policy terms and clauses at issue

The case revolves around historic liability insurance policies allegedly issued by Canadian General (1969-1972) and Fidelity/USF&G (1980-1988). The core dispute is whether these policies obligate Aviva to defend and indemnify RCECO for the sexual abuse claims. Aviva’s defense hinges on its inability to confirm the policy wording and its assertion that RCECO’s knowledge of abuse at the time voids the policies for fraudulent misrepresentation. The production motion seeks documents that would clarify the existence, terms, and applicability of these policies, as well as RCECO’s knowledge and handling of abuse allegations.

Court’s analysis and outcome

The court reviewed the principles governing examinations under Rule 39.03, emphasizing that such examinations must be relevant, necessary, and not an abuse of process. The court found that RCECO had established a prima facie right to examine Mr. Djukic, as his evidence was directly relevant to the underlying production motion, particularly regarding Aviva’s possession of documents, the basis for its requests, and the proportionality of those requests. The court noted inconsistencies between Ms. Abbas’s affidavit and Mr. Djukic’s discovery evidence, warranting further examination to clarify the record. The court rejected Aviva’s arguments that the examination was duplicative or abusive, finding no evidence of improper purpose.

Ruling and overall outcome

The court dismissed Aviva’s motion to quash the summons, allowing RCECO to examine Mr. Djukic under Rule 39.03. The decision underscores the importance of clarifying evidentiary inconsistencies in complex insurance coverage disputes and affirms the relevance and necessity of examining key witnesses to ensure a fair adjudication of production motions. No specific monetary award or costs were determined in this decision; the parties were encouraged to agree on costs, with a process outlined if agreement could not be reached. The successful party on this motion was the plaintiff, RCECO, as its right to examine Mr. Djukic was upheld. If costs cannot be agreed, the court will determine them upon further submissions.