Production Of Insurer's File

In Alofs v Blake, Cassels & Graydon, an insurer paid out a director's liability claim and then commenced a subrogated action against the lawyers that structured the deal that lead to the director's liability claim.  The law firm, in defending the subrogated claim, took the position that the plaintiff did not mitigate his loss, and that the insurer paid a claim which it ought not to have paid (it was an "ex gratia" payment).  Accordingly, they sought production of the insurer's claim file.

The presiding Master held that since an "ex gratia" defence was plead, it was not for him to determine the merits of such a defence.  If it did not exist at law, the plaintiff ought to have brought a motion to have it struck.  He further held that if the plaintiffs brought such a motion in the future, they could ask that his decision be stayed, as he ordered production of certain portions of the insurer's file.  Documents that were covered by litigation privilege in the original