The Supreme Court of British Columbia has rejected a bid from Manufacturers Life Insurance Co. to have a lawyer removed from a case against the insurer on the grounds that he has an insider’s knowledge of the firm’s business practices and litigation strategies.
The court has denied Manulife’s application for an order to disqualify lawyer Jan Fishman from working for a woman who is suing the insurer for benefits under a disability policy.
According to the court ruling, Fishman worked as an in-house lawyer for Manulife for 10 years, from 2002 until 2012. The firm sought to have him removed from the lawsuit, not based on any insider knowledge of the plaintiff’s case (which was filed more than a year after he left Manulife), “rather, it is based on knowledge of Manulife’s business practices, litigation strategies, insurance policies and certain claims personnel,” the court decision says.
When Fishman worked in litigation at Manulife, he defended claims brought against the insurer, including actions for long-term disability benefits, the court decision notes, After he left the firm, Manulife initially took the position that “Fishman could not act against Manulife no matter what the case,” the court decision says. The insurer later revised that to conceding that Fishman could work on cases that were not related to work he did at Manulife, and does not involve people he worked with at Manulife.
Manulife has not opposed his involvement in another similar case, involving claims personnel in its Toronto office. Instead, the insurer objects to his involvement in a case in B.C. that involves people he did work with during his time at the insurer.
“Manulife’s application hinges on Mr. Fishman having insight into the personalities and practices of the company. Whether confidential or otherwise, some or all of them would not be known by someone who had not worked at Manulife. The case therefore depends on a nuanced analysis of the potential use of confidential information,” the court decision says.
However, the court sided against the firm, noting that a claim for disability benefits will be largely based on the terms of the policy, which are not confidential.
“It cannot be argued or assumed that Manulife has some secret interpretation of the policy that Mr. Fishman has knowledge of,” the court decision says, adding that the fact that he knows some of the people who handle claims at Manulife won’t impact the case either.
“As in most LTD claims the real issue will no doubt be – and no one argued otherwise – Ms. McMyn’s medical condition and how that fits into the wording of the policy,” the court decision says.
“Knowledge of how Manulife personnel perform in examinations for discovery might provide a minor advantage. But any lawyer who had previously done an examination for discovery or cross-examination in trial of that witness would also have that insight,” the court says. “It is to be borne in mind that Manulife as a major LTD insurer in Canada is an institutional litigator. This is not a one-off claim being made against it. Any lawyer specializing in LTD claims would be expected to act against Manulife multiple times and most likely come up against the same Manulife personnel.”