In last year’s Manitoba decision of Funk et al. v. Aviva Insurance Company of Canada et al., 2022MBQB 149, the Court granted the defendants’ summary judgment motion and dismissed the claim. The Court held that the defendants exercised the appropriate standard of care and as such there was no genuine issue for trial.
Essentially, the action was against the insurance broker for negligence. In granting summary
judgment, the Court said this about the broker’s business practice:
 First, I note that the [broker] maintained a contemporaneous log of discussions and
correspondence with the plaintiffs as part of their regular business routine. There was nothing
special about these clients that caused these notes to be taken – it was simply a good business
practice. The plaintiffs did not keep notes.
Moreover, on an issue for which the broker did not have a specific note, there is this:
 In reference to the Questionnaire, [the broker] deposed that she specifically asked about
the heat sources in the outbuildings (at para. 10):
… Although my notes do not specifically refer to there being no woodstove in any of the outbuildings, it was, and is, my general practice to ask whether any of a client’s buildings contains a woodstove or any other source of heat. I did that in my discussion with Mr. Funk. He advised me that there was no heat in the garage. He did not advise me that there was a woodstove in the garage.
We have often said that notes contemporaneously made during your handling of a file certainly
help in defending a claim. But it is also true that that lack of notes will not make a matter
indefensible. When there are no notes on specific issues, evidence of your regular practice is
In the end, the Court held that the broker met the standard of care by (i) asking the client
appropriate questions to obtain material facts relevant to the matter, (ii) asking the client to read
the insurance application to confirm its accuracy (similar to sending your client a retainer letter
confirming what you will be doing and a reporting letter confirming what you did), and (iii) based upon the information and instructions received properly assessed the risk, gave appropriate advice and placed appropriate insurance.
LIANSwers v82, July 2023