Long v. Co-Operators Life Insurance Company, 2012 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Long

Applicant

-and-

Co-Operators Life Insurance Company

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: May 28, 2012

Citation: 2012 HRTO 1053

Indexed as: Long v. Co-Operators Life Insurance Company

WRITTEN SUBMISSIONS

Elizabeth Long, Applicant

Self-represented

Co-Operators Life Insurance Company, Respondent

Elizabeth J. Forster, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of disability.

2On May 1, 2012 the applicant filed a Request for Order During Proceeding (Request) seeking the production of documents. The respondent has filed a Response to the Request opposing it.

3For the reasons that follow the applicant’s Request is allowed in part.

4The applicant seeks an Order requiring the production of the following documents:

a. Co-operator's Group Disability Claims office policies and procedures relevant to the adjudication of LTD applications, particularly where the application is based on or includes a condition that might fall within the definition of a pre-existing condition.

b. Actuarial data relied on by the respondent to support each element of the definition of pre-existing condition in its LTD policy.

c. Any data, reports, studies or other material relied on by the respondent to support each element of the definition of pre-existing condition in its LTD policy.

d. Any policies, guidelines, memoranda or submissions issued or distributed by the Financial Services Commission of Ontario that give direction to the (life, health, disability) insurance industry for designing group benefit insurance policies that are reasonable and bona fide and otherwise comply with the requirements of the Ontario Human Rights Code, including para. 25 (3) (a).

5With respect to the documents described in paragraph 4(a) the respondent takes the position that they are not relevant but has provided same to the applicant in any event. The admissibility of such material will be determined by the Member presiding at the hearing.

6With respect to the documents described in paragraphs 4(b) and (c) the respondent states that there are no such documents. The respondent indicates that it will provide, in accordance with Rule 17, expert reports related to the issues canvassed by these aspects of the Request. The Tribunal will not Order the production of documents that are said not to exist.

7With respect to the documents described in paragraph 4(d) the respondent states that the documents in question are in the public domain and therefore are available to the applicant. Despite the respondent’s position in this regard, I find that it would be most fair, just and expeditious for the respondent to identify and provide any such documents which are arguably relevant to the issues raised in this Application. Notwithstanding its position that such material is in -the public domain, I find that the respondent will likely be in a better position to do so than the applicant. If there are no such documents that the respondent is able to identify they should deliver and file written confirmation of that fact.

8The hearing is scheduled to take place on October 16, 17 and 18. The parties are required to exchange the documents they intend to rely upon on or before September 3, 2012. In order to afford the applicant the time necessary to determine whether any documents produced to her as a consequence of my Order below are going to be relied on they should be in her hands two weeks before hand. Accordingly the Tribunal makes the following Order:

a. The respondent will deliver to the applicant on or before August 20, 2012 any policies, guidelines, memoranda or submissions issued or distributed by the Financial Services Commission of Ontario that give direction to the (life, health, disability) insurance industry for designing group benefit insurance policies that are reasonable and bona fide and otherwise comply with the requirements of the Ontario Human Rights Code, including para. 25 (3) (a) in their possession or control, whether or not in the public domain.

9I am not seized of this case.