Scapegoat - Scales of Justice Burning: Supreme Court of Canada Manuscript Ruling
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Scapegoat - Scales of Justice Burning: Supreme Court of Canada Manuscript Ruling
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| ISBN-13: | 9781490716640 |
|---|---|
| Publisher: | Trafford Publishing |
| Publication date: | 05/05/2014 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 160 |
| File size: | 2 MB |
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Scapegoatâ?"Scales of Justice Burning
Supreme Court of Canada Manuscript Ruling
By Chris Porter
Trafford Publishing
Copyright © 2014 Chris PorterAll rights reserved.
ISBN: 978-1-4907-1665-7
CHAPTER 1
Controlling Corporate Consequences
Alphonse Gabriel 'Al' Capone, 'Scarface' was well known for his ability to control the justice system in the United States while committing business ventures that to most would be outside the law. This period of time in the history of the United States was considered a very dark time. His method of controlling the justice system, by diverting their attention away from corporate decision makers in his organization, allowed him to function and corporately operate as a gangster in Chicago. Clearly if you remove the fear or influence of the justice system, corporate bad behaviour could become a normative in any society including our own here in Canada.
The Supreme Court of Canada had the last say in a famous case in Canada entitled Whiten v. Pilot Insurance Company. This was a case about a fire insurance claim emanating from a house fire in Haliburton, Ontario on January 18, 1994. Quite simplistically, this claim was advanced by Mr. & Mrs. Whiten on the day their home was totally destroyed by fire on the coldest night of that year in 1994. The claim was actually received at Pilot Insurance on January 18, 1994.
The claim was reported to the branch manager of the Pilot Insurance Peterborough office from another Pilot Insurance branch that had initially received the claim from the insurance broker for Mr. & Mrs. Whiten. The Peterborough branch manager had assigned an independent adjuster and an electrical engineer to investigate and adjust the loss. This was all normal practice for how severe fire loss claims were handled in general. The twist in this story is about how a claims examiner ended up being implicated by the Supreme Court of Canada for his role at Pilot Insurance Company.
I was an employee of Pilot Insurance Company who worked at their head office with the title senior claims examiner reporting to a supervisor, a claims manager, the assistant vice president, (AVP) in charger of claims and in this case the executive vice president and secretary in charge of claims(VP). The Supreme Court found that a 'train of thought' emanated from the senior claims manager who's title was later changed to senior claims examiner, how this train of thought influenced how the corporation Pilot Insurance Company responded to this claim advanced by their insured.
In Canada, the Supreme Court of Canada, receive cases on application for decisions that are being challenged by parties to actions before the Court of Appeal. In this case it was on leave from the Court of Appeal for Ontario. This was a civil action that originated in what was called at the time, Ontario Court (General Division) or what is now called the Superior Court of Ontario. This case was tried before a judge and jury. The jury found that Pilot Insurance Company was in breach of its contractual obligation to provide coverage and also in bad faith in its obligation. The jury awarded the Whitens' full compensation to the extent of coverage under the insurance policy as well as punitive damages which were levied against the corporation Pilot Insurance Company. Punitive damages were assessed at $1,000,000.00, the largest award in Canadian history at that time.
The evidence provided to the Court was presented in the form of both oral and written submissions called factums. Both sides of the trial submit summaries of evidence developed through the process called Examinations for Discovery where both oral and material evidence is scrutinized under oath. The evidence from what is developed at the Examinations for Discovery is usually the central evidence that will be presented at trial.
At the completion of the Trial the jury returns a judgment based on the scale of probabilities, weighing out all the evidence and testimony. The finding in this case was in favour of the plaintiff, which included punitive damages in the amount of $1,000,000.00.
Pilot Insurance Company exercised its right to appeal the judgment to the next level which was to the Court of Appeal for Ontario. Again at this level the Court receives both oral and written submissions by both parties called factums however the factum from Pilot Insurance was to provide arguments to the Court of Appeal regarding errors or other elements of the trial which prevented them from having a fair trial. In other words they must point out errors made by the jury in their findings or the Judge who instructed the jury.
In the Court of Appeal which was heard by three Judges with no jury, they ruled that although Pilot Insurance had breached their obligation to their insured it was not of a sufficient breach to reach the damages assessed by the jury and lowered the punitive damages assessed to $100,000.00. The Court of Appeal for Ontario issued their reasons for judgment in a written decision.
Finally, the case reached the Supreme Court of Canada on Appeal by application by both parties which is the subject of this book. The Supreme Court of Canada also received both oral and written submissions called factums and released a judgment in the form of what is called Reasons for Judgment. The Reasons for Judgment state facts which should only pertain to the evidence and testimony presented to the Superior Court and the Court of Appeal.
In paragraphs 7, 102 and 103 of the judgment, the Supreme Court Judge who wrote the decision for the majority, makes his initial findings regarding the role of the Senior Claims Examiner quoting a reporting letter dated February 25, 1994, from the independent adjuster to Pilot Insurance Company. The Supreme Court Judge also in his findings, states that the Senior Claims Examiner was the Senior Claims Manager at Pilot Insurance Company and also a Claims Examiner as mentioned in paragraph (9) and a Senior Claims Examiner in paragraph (16). The Judge draws this conclusion as a fact because the report is to the attention of the Claims Examiner. His legal opinion is that this is prima facie evidence on its own and that because the name of the Senior Claims Examiner appeared on the report he is able to conclude that the Senior Claims Examiner had a 'train of thought' that was the catalyst in what drove the corporations Pilot Insurance Company and what is now called AVIVA, a multi-billion dollar company to deny the fire claim advanced by their insured with no evidence.
The Supreme Court of Canada Release New Revised Reasons April 10, 2002
By making this unprecedented change to my title the Supreme Court of Canada must have agreed that there was no evidence or submissions from any party identifying me as a Manager or Senior Claims Manager. Therefore the revised judgment reflecting a correction regarding this error was released a second time on April 10, 2002 and paragraphs 7, 102 and 103 were amended to show my correct title. There was no explanation provided as to how I had been misidentified as a Senior Claims Manager by the Supreme Court of Canada as described in the following paragraphs:
"7) The independent adjuster made further investigations during which he determined that although the Whitens' mortgage payments were in arrears', refinancing was being arranged. It appears that Pilot's Senior Claims Examiner, Mr. Chris Porter, was already moving towards the conclusion that the claim should be disputed based on his suspicions of the family's financial problems. In a letter dated February 25, 1994, the independent adjuster wrote to Pilot:
As outlined in my 2nd report with the physical evidence we have and the fact that the insured was attempting to arrange financing through another source and pay off the existing mortgage, there is little or no base [sic] to deny this claim. I certainly agree with your train of thought and if we did not have the physical evidence and the information from the insured's solicitor that he was arranging financing for the Whitens, then my recommendations would certainly be opposite to what they are today. Unfortunately we must deal with the facts on hand and proceed with the adjustment accordingly in my opinion. [Emphasis added.]
102) The respondent claims that an insurer is entirely within its rights to thoroughly investigate a claim and exercise caution in evaluating the circumstances. It is not required to accept the initial views of its investigators. It is perfectly entitled to pursue further inquiries. I agree with these points. The problem here is that Pilot embarked on a "train of thought" as early as February 25, 1994 (see para. 7 above) that led to the arson trial, with nothing to go on except the fact that its policy holder had money problems.
103) The "train of thought" mentioned in the letter to Pilot from independent adjuster kept going long after the requirements of due diligence or prudent practice had been exhausted. There is a difference between due diligence and willful tunnel vision. The jury obviously considered this case to be an outrageous example of the latter. In my view, an award of punitive damages (leaving aside the issue of quantum for the moment) was a rational response on the jury's part to the evidence. It was not an inevitable or unavoidable response, but it was a rational response to what the jury had seen and heard. The jury was obviously incensed at the idea that the respondent would get away with paying no more than it ought to have paid after its initial investigation in 1994 (plus costs). It obviously felt that something more was required to demonstrate to Pilot that its bad faith dealing with this loss claim was not a wise or profitable course of action. The award answered a perceived need for retribution, denunciation and deterrence."
"the above quote from the Supreme Court judgment is a replica and not represented as an official version from the judgment"
CHAPTER 2Supreme Court of Canada Mandate?
The case before the Supreme Court of Canada was an appeal regarding a judgment from the Court of Appeal for Ontario. Mr. & Mrs. Whiten appealed the Court of Appeal for Ontario ruling which lowered punitive damages assessed against Pilot Insurance Company from ($1 million dollars) to ($1 hundred thousand dollars).
This case had initially gone to trial at the end of 1995 before the Superior Court of Ontario and was tried by Jury. The Supreme Court of Canada was to review the entire case including all the evidence and testimony to decide whether Punitive Damages were warranted and were of a sufficient amount to reflect the gravity of Bad Faith alleged against Pilot Insurance Company.
The Supreme Court of Canada was to decide whether to restore the Superior Court award of ($1 million dollars) or to rule in favour of the Court of Appeal for Ontario award of ($1 hundred thousand dollars), if punitive damages were warranted in this case.
My name had not appeared in the jury findings of the trial court or in the Court of Appeal for Ontario decision. Therefore the reference to my name by the Supreme Court of Canada was an entirely new twist in the case.
No parties to the case had ever made any claim against me and the Whitens' (Plaintiff's) had never seen my name used in reference to any of the communications with their lawyer.
The parties to the case had not asked the Supreme Court of Canada to assess the role of the Senior Claims Examiner, and therefore this was an entirely new twist in the judgment, to focus the attention on the person they believed to have been the mastermind at Pilot Insurance Company. The focus on the examiner rather than Pilot Insurance Company was demonstrated; when in their ruling they described the actions to have been an aberration of an individual rather than an implication of a systemic problem with the corporation.
The plaintiff's appealed to the Supreme Court of Canada to restore the award of $1,000,000.00 from the Superior Court. The defendant also appealed to the Supreme Court of Canada in the form of a cross-appeal attempting to argue that the Corporation, Pilot Insurance Company did not act in bad faith. Pilot Insurance presented a factum to the Supreme Court which delineated the blame on senior management to infer that lower level employees were to blame including the Senior Claims Examiner. However this was not presented at the lower Court Trial or to the Court of Appeal for Ontario, and was presented in an effort to defuse the blame and to allow Pilot Insurance Company to control the consequences of decisions made exclusively by senior management. Pilot's senior management made the decision to deny the fire claim advanced by their insured on the basis that the cause of the fire was arson and that the arson was deliberately set by their insured for financial profit.
It is important to go back in history to the very beginning of the first trial to understand how the facts, evidence and allegations of the claim ended up before the Supreme Court of Canada. The information provided in this book are described by me based on my knowledge of the claim and what was discovered since the day the Supreme Court of Canada released their judgment to the public on February 22, 2002.
The reader of this book should be aware that there had never been a thought or concern by me that my name would be used by the very people I worked for and trusted. I never thought my name would be ever mentioned in the Supreme Court of Canada because of my role and my understanding of my involvement in the adjustment of the claim. I was kept in the dark by my employer and therefore had no prior knowledge of how my name was being used by others including Pilot's lower court lawyer and the branch manager when giving evidence under oath. I was not aware of how Pilot's Court of Appeal and Supreme Court lawyer was presenting his defence of Pilot Insurance Company to the Supreme Court of Canada by using my name.
I never testified or provided evidence or an affidavit regarding evidence that was presented by Pilot's lawyers. It was not my train of thought to deny the claim and I was caught off guard and felt ambushed by my name appearing in the Supreme Court Judgment since there was no precedent for my name appearing the Trial or Court of Appeal Judgments. Does a citizen of Canada not have a right to know that his or her name is going to appear in a Supreme Court Judgment before it is published to the world?
Two weeks after the claim was reported to Pilot Insurance Company a lawyer from a Toronto based law firm was hired. This occurred after the AVP and the VP of Claims had a meeting with a lawyer at that firm. The lawyer they had a meeting with had recommended his partner, a lawyer who they had not used in the past but one that the lawyer they knew, had been recommending. I was not involved in the hiring and nor did I recommend the lower court lawyer. There was no evidence of my involvement regarding how the lawyer was hired other than an insinuation by the branch manager and the lower court lawyer during examination for discovery of the branch manager who was the only representative for Pilot Insurance Company and the only employee for Pilot Insurance Company who attended the trial of Mr. and Mrs. Whiten. I requested a number of times to be allowed to attend however I was warned by both the VP and AVP of claims to stay away from the court and to not communicate with their lower court lawyer.
Pilot Insurance Company hired a senior lawyer who represented them before both the Court of Appeal for Ontario and the Supreme Court of Canada. This same lawyer would have assisted Pilot in preparing it's factum for the Court of Appeal for Ontario and the Supreme Court of Canada. In Pilot's factum to the Court of Appeal for Ontario, there is no mention of my name. At that time I was still an employee of Pilot Insurance Company, when Pilot prepared its factum which was submitted on February 27, 1998 to the Court of Appeal for Ontario.
However this all changes at a time when I was no longer an employee with Pilot Insurance Company, when Pilot's submits its factum to the Supreme Court of Canada where my name now appears three times. On page 7 paragraph 17 it states; "After consulting Chris Porter, a senior claims examiner at Pilot's head office, the branch manager decided to obtain counsel on March 8 and formally retained a lawyer (whom he had contacted about a week before) on March 10 1994."
On Page 7 paragraph 17 of the factum to the Supreme Court of Canada it goes on to state; "On March 8, the branch manager told the independent adjuster Pilot was continuing its investigation through its "head office, as they normally do". Mr. Porter and his superior, the Vice-President in charge of claims, was copied with all of the material on the file."
Pilot Insurance Company declared in its factum to the Supreme Court of Canada, that I was copied with all the material on the file. Why did it not make this same declaration in its factum to the Court of Appeal for Ontario?
(Continues...)
Excerpted from Scapegoatâ?"Scales of Justice Burning by Chris Porter. Copyright © 2014 Chris Porter. Excerpted by permission of Trafford Publishing.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents
Prologue, ix,PART ONE NATURAL JUSTICE?,
Chapter One Controlling Corporate Consequences, 2,
Chapter Two Supreme Court of Canada Mandate?, 7,
Chapter Three Al Capone Methodology, 15,
Chapter Four Facts of How The Claim Was Received and Handled, 19,
Chapter Five Assumptions Regarding Use of My Name, 45,
Chapter Six Misidentifying My Role, 50,
Chapter Seven Mystery and SCC Records, 56,
Chapter Eight Critical Review of Evidence March 31, 2002, 60,
Chapter Nine Canadian Judicial Council, 74,
Chapter Ten Supreme Court of Canada Right to Use My Name?, 77,
Chapter Eleven Supreme Court of Canada's Punishment of Pilot Insurance Company, 80,
Chapter Twelve Rules of Law That Did Not Protect My Name, 106,
PART TWO THE FUSION OF HISTORICITY AND NATURAL JUSTICE?,
Chapter Thirteen Disrespect for a Private Citizen of Canada, 110,
Chapter Fourteen Ancestral Historicity, 112,
Chapter Fifteen Family Names, 123,
PART THREE MORAL INDIFFERENCE,
Chapter Sixteen Canadian Law With Respect to The Law of Rights & Liberties, 130,
Chapter Seventeen Universal Prescriptivism and Moral Indifference, 133,
Chapter Eighteen Collateral Damage, 139,