Belair Insurance Company v. Candido, 1999 ONFSCDRS 215

Neutral Citation: 1999 ONFSCDRS 215

Appeal P99-00055

Appellant

and

Respondent

Before: David R. Draper, Director's Delegate

Counsel:

David G. Merner (for Belair Insurance Company)

Frank Benedetto (for Ms. Candido)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal brought by Belair Insurance Company from an interim arbitration order, dated September 7, 1999, is rejected under Rule 47.2(b) of the Dispute Resolution Practice Code—Third Edition.
No appeal expenses are payable.

November 9, 1999

David R. Draper Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by Belair Insurance Company ("Belair") from an interim arbitration decision dated September 7, 1999. It claims the arbitrator erred in law in ordering it to produce the notes, memorandum or other documents with respect to its decision to deny occupational therapy benefits.

Because the appeal is from an interim order, leave is required. Rule 46.2 of the Dispute Resolution Practice Code—Third Edition states: "A party may not appeal a preliminary or interim order until all of the issues in dispute have been finally decided, unless the Director orders otherwise." The question addressed in this decision is whether the appeal should be allowed to proceed.

The appeal was decided on the record, with written submissions from both parties.

II. BACKGROUND AND ANALYSIS

Susan Candido was involved in an automobile accident on January 7, 1997. Belair paid some accident benefits, but the parties were unable to agree on other aspects of her entitlement under the SABS-1996¹ After two mediations, Mrs. Candido applied for arbitration. At the pre-hearing on September 7, 1999, a long list of issues was identified for the arbitration hearing, including weekly income replacement benefits from October 7, 1997, the amount of the income replacement benefits, and expenses for occupational therapy, attendant care, housekeeping and home maintenance. Mrs. Candido also claimed that Belair should be ordered to pay a special award under s.282(10) of the Insurance Act on the basis that it unreasonably withheld the payment of occupational therapy expenses.

As usual, the pre-hearing also dealt with production issues. A procedure, with time limits, was established for the identification and exchange of relevant documents. However, there was one contentious issue that the pre-hearing arbitrator resolved by order, as follows:

In the context of Mrs. Candido's claim for a special award, Mrs. Candido is asking for Belair's notes, memoranda or other documents concerning its decision to deny the occupational therapy benefits in dispute. Belair's neuropsychologist, Dr. Fiss, provided a report dated March 25, 1998, containing his assessment together with recommendations for treatment. He recommended retaining an occupational therapist to assist Mrs. Candido with her ongoing cognitive deficits. Mr. Lofranco maintains that Belair totally ignored that report. Mr. Lofranco wrote to Belair on numerous occasions requesting that it read the report and adhere to the recommendations. These answers went unanswered.

Belair is claiming privilege on the documents asked for. It also maintains that the documents claimed are not relevant. The claim for a special award, by itself does not create relevancy. Belair relies on the appeal decision in Leitgeb and Allstate Insurance Company of Canada, (OIC P-012407, November 16, 1995).

Based on Dr. Fiss's report, I am of the view that the documents claimed are relevant. I order Belair to produce the documents asked for, subject to litigation privilege. I order that all privileged documents are to be described, including the basis of the privilege claimed.

Belair appeals from this order, claiming that it is inconsistent with my appeal decision in Leitgeb, cited above. In Belair's submission, the documents it has been ordered to produce are irrelevant to any of the claims in dispute. The fact that Ms. Candido has raised the special award issue, it argues, does not make them relevant, particularly when the allegations are not included in any of her written material, but simply asserted by counsel during the pre-hearing. Belair claims that this kind of production order will complicate the claims handling process, undermining the ability of the dispute resolution system to provide a relatively simple, inexpensive alternative to the courts.

As stated above, the general rule, established in Rule 46.2 of the Dispute Resolution Practice Code, is that appeals from preliminary or interim orders are not allowed. This restriction was introduced in 1995, so earlier decisions were made in a different context.² The purpose of the rule is to avoid delay and to minimize the complexity and cost of proceedings.

In my view, the appeal decisions reflect an appropriate reluctance to intrude in the arbitration process, but a willingness to do so in circumstances where it is likely that allowing the appeal to proceed will streamline the process in some way.³ This would include situations where there is a clear error in the decision, or the appeal presents a strong argument on a key issue, making it likely that time and resources would be wasted if the appeal was not decided first. As stated in Rule 1.1 of the Dispute Resolution Practice Code: "These rules will be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute."

In this case, I am not persuaded that the appeal should be allowed to proceed. The prompt exchange of documents is one of the most important factors in resolving disputes. Therefore, I am reluctant to intrude. Further, I agree with Mrs. Candido that unlike the order in Leitgeb, the arbitrator's order is limited in scope and specifically relates to her claim for occupational therapy. Therefore, I am not prepared to interfere.

November 9, 1999

David R. Draper Director's Delegate

Date

Footnotes

Ontario Regulation 403/96, as amended, the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996.
I note that the appeal in Leitgeb was brought before the restrictions on appealing preliminary or interim orders were in effect.
For example, see Tesfay and Allstate Insurance Company of Canada, (FSCO P99-00023, June 21, 1999); Bouassali and Zurich Insurance Company, (FSCO P98-00039, November 20, 1998); and Glynn and General Accident Assurance Company, (OIC P98-00085, March 17, 1997).