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Michael Tuzyk v. John Doe, 2018 ONSC 3882 (CanLII), http://canlii.ca/t/hsmtr
[1] The plaintiffs seek leave to bring this motion and leave to amend their statement of claim to include a bad faith claim against the defendant TD Home and Auto Insurance Company (the “defendant”) as a result of its evaluation of the plaintiff’s claim.
[15] This pleading issue was dealt with squarely by the court in Craig-Smith v. John Doe 2009 CanLII 51513 (ON SC). Hourigan, J. was faced with a pleading where the plaintiff sued her insurer for bad faith. In her claim she pleaded that the defendant’s bad faith was systemic and there existed a policy of failing to fulfil its duty of good faith. Like the defendant here, the defendant in Craig-Smith argued that this was a bald allegation of systemic misbehaviour and that it should be struck because the allegation lacked particulars. In disposing of this argument, the court stated at paragraph 16(i):
… I reject the submission that an allegation of systemic wrong doing is not relevant to an analysis of bad faith or punitive damages. There are many examples of cases where such allegations are considered in the context of a punitive damages or bad faith analysis (see, for example, Whiten v. Pilot Insurance Co., supra, at para. 120). I also disagree that more particulars are required. The plaintiff has alleged that this policy exists and in the circumstances it is hard to imagine what particulars the plaintiff can furnish at this stage. I decline to strike the paragraph or order particulars.
[16] Paragraph 16E pleads that the plaintiff suffered damages as a result of the defendant’s bad faith conduct and paragraph 16F pleads that the conduct was harsh, vindictive, etc. and showed a reckless disregard for the plaintiff entitling him to aggravated, punitive and exemplary damages.
[17] At this stage, it is not necessary or appropriate for the court to consider the merits of the allegation or whether the plaintiff will be able to prove his claim at trial. The test is, assuming the allegations in the proposed amendment are proven, do they disclose a cause of action. (Spar Roofing & Metal Supplies Ltd. v. Glynn 2016 ONCA 296 (CanLII) at paragraph 43). I find they do. The plaintiffs’ motion for leave to amend their statement of claim is granted.