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Digest of the Week | Affidavit of Expert

Successful motion to strike the affidavit of an expert in the Supreme Court of Canada 


Brine v. Industrial Alliance Insurance and Financial Services Inc.

2016 CarswellNS 206, 2016 CarswellNS 205, 2016 SCC 9, 2016 CSC 9

Supreme Court of Canada


Applicant, BB, successfully brought action for damages in disability insurance case against insurer, I Inc. -- Trial judge found I Inc. had breached contractual obligations and duty of good faith, awarding BB contractual damages, $30,000 for mental distress, $150,000 in aggravated damages and $500,000 in punitive damages. -- I Inc.’s appeal was allowed in part, reducing combined mental distress and aggravated damages to $90,000, and punitive damages to $60,000 -- BB filed affidavit in support of application for leave to appeal from decision -- I Inc. brought motion for order striking affidavit of Professor BF -- Motion granted -- In affidavit, Professor BF made number of statements about alleged misconduct by insurers that, in his view, was exacerbated by inordinately low punitive damages awards -- He listed 12 cases in which he said punitive damages were awarded against insurers -- He then concluded on that basis that misconduct was "very common in Canada" and that insurers considered low punitive damages awards to be "mere license fee and a low cost of doing business" -- Professor BF set out no further facts or analysis in respect of cases cited -- Neither did he provide additional statistics or other corroborating evidence to support belief that bad faith and misconduct by insurers was related to "modest and conservative" punitive damages awards that have failed to deter insurers "from engaging in ’malicious’ and ’high handed’ conduct" -- Opinion evidence was inadmissible because it was lacking in proper foundation -- Moreover, affidavit was not helpful to Court in deciding whether or not leave to appeal should be granted -- Affidavit amounted to improper attack on correctness of Court of Appeal decision. 

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