Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2001 ONFSCDRS 129

Appeal P00-00023

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MS. Z

Appellant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Respondent

Before:

Nancy Makepeace, Director's Delegate

Counsel:

Ms. Z (representing herself)

Ms. Joan Takahashi (for Dominion)

DECISION ON A PRELIMINARY ISSUE

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

Dominion shall arrange and pay for transcription of the untranscribed portions of Dr. Judith Schachter's testimony at the arbitration hearing, and shall provide a copy of the transcript to Ms. Z and the Commission. The appeal hearing shall be resumed forthwith thereafter. Ms. Z's motion for preparation of transcripts of the remaining parts of the arbitration hearing is dismissed.
Ms. Z's motion to admit fresh evidence on appeal is dismissed, apart from the decision of the Canada Pension Plan Review Tribunal, dated May 1, 1999, and the Tribunal's earlier letter to Ms. Z, dated April 26, 1999, which shall be admitted in the appeal.

September 11, 2001

Nancy Makepeace

Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Z was involved in a car accident on January 8, 1993, when she was hit from behind while stopped at a red light. Although initial assessments indicated she suffered soft tissue injuries of her neck and back, she has not returned to work, in part because of psychological problems. The severity and cause of these problems were the main issues in the arbitration hearing.

Ms. Z appeals and Dominion cross-appeals the arbitration decision, dated March 7, 2000. The arbitrator found that Ms. Z is entitled to weekly income benefits to July 15, 1997. He dismissed her claim for a functional home assessment and occupational assessment, ordered her to repay $21,752.50 of the $80,935 Dominion had paid for psychological counselling by Dr. Judith Schachter, and denied her claim for a special award.

Ms. Z submits that the arbitrator erred in dismissing her claims for ongoing weekly income benefits, a functional home assessment and occupational assessment, the entire cost of her treatment by Dr. Schachter, and a significant special award. She also appeals the arbitrator's order, dated July 8, 1999, suspending, effective July 22, 1999, the interim benefits Dominion had been paying pursuant to Arbitrator Palmer's interim order of September 25, 1998. In its cross-appeal, Dominion seeks an order that Ms. Z repay the weekly benefits it paid in accordance with that order.

II. HISTORY OF THE PROCEEDING

This proceeding has been long and contentious. The arbitration proceeding was prolonged by interlocutory disputes about scheduling, document production, insurer medical examinations and bias allegations. The appeal and cross-appeal have been complicated by disputes about the filing and service of documents, ex parte communications with the Commission, scheduling problems, and bias allegations, as well as the disputes about fresh evidence and transcripts at issue in this decision. The parties agree on very little. The Commission is mandated to provide "the quickest, most just and least expensive resolution of the dispute."¹ The parties' conduct of this proceeding has fallen far below the expected standard.

Ms. Z applied for mediation after Dominion terminated her weekly income benefits effective July 14, 1997. When she applied for arbitration in January 1998, she also applied for interim benefits under s. 279(4.1) of the Insurance Act. After many delays, her interim benefits motion was heard by Arbitrator Palmer on September 9, 1998. The motion was granted. Dominion was ordered to pay interim weekly income benefits of $434.28, commencing September 25, 1998, until a further order of an arbitrator. Arbitrator Palmer also denied Dominion's motion for an order that Dr. Schachter produce a copy of her clinical notes and records to Dominion. Instead, Ms. Z was ordered to produce to any psychologist retained by Dominion the raw data of any psychological tests.²

Dominion appealed the decision. Director's Delegate Draper rejected the appeal pursuant to Rule 46.2 of the Code, which provides that "a party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the arbitration have been finally decided, unless the Director [or his delegate] orders otherwise." However, because of "the combination of the procedural confusions, the rulings made by the arbitrator, and the contentious nature of the September hearing," he concluded that the main hearing should not be heard by the same arbitrator who decided the interim benefits motion.³

The hearing commenced on January 6, 1999 before Arbitrator Blackman, and ended on July 5, 1999, the deadline for final written submissions. On July 8, 1999, Arbitrator Blackman suspended Arbitrator Palmer's interim benefits order, effective July 22, 1999. In his final decision, dated March 7, 2000, he made three key findings. First, he concluded that while Ms. Z's impairments "are attributable to a complex interaction of factors, . . . . this accident materially contributes to Ms. Z's continuing psychological and physical condition," satisfying the causation test adopted by the Commission.⁴Turning to the duration of her disability, he concluded that she was not entitled to weekly income benefits after July 15, 1997, relying particularly on the evidence of Dr. Schachter. The following paragraphs are especially significant:

Dr. Schachter testified that it was Ms. Z's physical condition that prevented her from working. I find that Dr. Schachter, as a psychologist, has little, if any, expertise in this area. Her opinion was largely based on her observations as a layperson. I give little weight to this opinion. Dr. Schachter, however, does have expertise regarding the psychological sequelae of this accident. Dr. Schachter testified that Ms. Z was no longer disabled from working due to her psychological condition, including her psychological reaction to her pain.

In response to the question "[f]or what period would you say that [Ms. Z] was disabled as a result of her psychological condition caused by this accident?", Dr. Schachter stated that it was perhaps a year and a half until "she got going with her studies and so on." In answer to the question as to what year and when in that calendar year that would take us to, Dr. Schachter thought out the period aloud stating that Ms. Z "started [her sessions] in November of '95, so November '96, April or May, maybe the summer of '97." I accept Dr. Schachter's opinion that Ms. Z was not psychologically disabled after that time. Weekly income benefits were terminated by Dominion July 14, 1997. I am not persuaded that Ms. Z was "continuously prevented from engaging in any occupation for which [she] is reasonably suited by education, training or experience" after that date by reason of any psychological or emotional disability.⁵

The arbitrator found that while it was reasonable for Ms. Z to obtain ongoing psychological treatment from late 1995, when she began seeing Dr. Schachter, until at least February 1999, the frequency of treatment between August 1997 and February 1999 (three times a week) was excessive and unreasonable. He ordered Ms. Z to repay $21,752.50, about one quarter of the cost of Dr. Schachter's treatment.

The arbitrator was not satisfied that Dominion's delay in paying Dr. Schachter's bills between August 1997 and February 1998 warranted a special award, given that the outstanding accounts "were then paid and continued to be paid through to the arbitration hearing, despite Dominion's legitimate concerns . . ."He was not satisfied that Dominion unreasonably delayed payments in March 1997, when it notified Ms. Z that it was "terminating" benefits for failure to attend an insurer's medical examination, rather than "suspending" benefits because in his opinion, this was merely "an error in semantics".⁶

III. THE PARTIES' POSITIONS

Ms. Z submits that the arbitrator erred in his assessment of the evidence and his conduct of the proceeding, and was biased against her. She challenges the accuracy of the arbitration record. She alleges misconduct on the part of Dominion and its counsel. Finally, she alleges numerous contraventions of the Canadian Charter of Rights and Freedoms on the part of Dominion and the arbitrator. Dominion challenges the accuracy of many of Ms. Z's statements about what happened at the arbitration hearing, and disagrees that the arbitrator was biased or made errors of law in his conduct of the case or assessment of the evidence. Dominion submits that the Charter does not apply to many of Ms. Z's complaints, and that in any event, Ms. Z's Charter rights were not infringed. In Dominion's view, the appeal is frivolous, vexatious and an abuse of process.

In its cross-appeal, Dominion seeks an order that Ms. Z repay the weekly benefits it paid in accordance with the interim benefits order of Arbitrator Palmer, between September 25, 1998 and July 22, 1999, when Arbitrator Blackman suspended the repayment order. Arbitrator Blackman ultimately found that Ms. Z was not entitled to weekly benefits after July 14, 1997. He did not make any order with respect to repayment of interim benefits, and the matter appears not to have been put to him.

Ms. Z. commenced judicial review proceedings in the spring of this year. At the time of writing, the Commission has not received any order from the Court staying these proceedings.

IV. TRANSCRIPTS

Dominion relies on partial transcripts of the hearing before Arbitrator Blackman. Ms. Z submits that the transcripts are inaccurate, and questions whether the court reporter is acting on Dominion's behalf. She also objects to admitting partial transcripts, and moves for an order that Dominion provide full transcripts of the arbitration hearing, at its expense.

The transcripts are contained in four volumes, numbered here for convenience:

submissions made on January 6, 1999 concerning production of Dr. Schachter's clinical notes and records;
cross-examination of Dr. Schachter on January 27 and January 28, 1999;
a further excerpt from the proceedings on January 28, 1999: and
an excerpt from the hearing on January 28, 1999 (testimony of June Lasenby).

Volume 4 was provided at the request of the arbitrator, and is not the subject of dispute. Nor is there any issue about Volume 1. Also found in the arbitration file is a one-volume transcript of the proceedings before Arbitrator Palmer on September 9, 1998. Ms. Z asks me to review this transcript, and relies on Arbitrator Palmer's findings. Arbitrator Palmer's decision is not under appeal. Hers was an interim decision, and not a final resolution of the dispute. Arbitrator Blackman conducted a new hearing, and was not bound by her findings. Accordingly, I have not considered this transcript. Ms. Z submits that the transcript of the arbitration hearing is inaccurate. As she was unable to give specific examples at the appeal hearing on June 12, 2001, I gave her until July 3, 2001 to do so. Her further submissions provide no further assistance. I have no basis for finding that the transcripts provided are inaccurate.

One confusing issue is the relationship between the two volumes containing excerpts from Dr. Schachter's evidence. Volume 2, the larger volume, contains her cross-examination on January 27 and 28, 1999. Volume 3 begins with a discussion on the morning of January 28, 1999 about the production of Dr. Schachter's clinical notes and records. Dr. Schachter's cross-examination then resumes, transcribed in Volume 2. Re-examination of Dr. Schachter was completed at the end of that day, and is transcribed in Volume 3. Ms. Takahashi explained that the breaks in the transcript occurred because the two volumes were ordered at different times. Ms. Z made no submissions on this point. Based on my examination of the transcripts, I accept Ms. Takahashi's explanation.

It is not clear to me how the transcripts came to be in the appeal file. Ms. Z's Notice of Appeal, signed by her then counsel, John Watson, states that Ms. Takahashi and Vicki Edgar, Ms. Z's former counsel, "possess all, or a portion of, the hearing transcripts," and "have been requested to provide them" to Mr. Watson. In Dominion's Response, Ms. Takahashi identified the transcripts already obtained (volumes 1-4, above), and indicated that the Insurer would not be ordering further transcripts because its case did not depend on them. However, given the issues raised in the Notice of Appeal with respect the arbitrator's assessment of the evidence, "transcripts of all evidence would be required." In any event, Dominion relies on volumes 2 and 3, and takes the position that it is Ms. Z's responsibility to order and pay for any other portions of the transcript she wants to rely on. Both parties state that no further transcripts have been ordered or obtained.

Although there is no requirement that an arbitration hearing be recorded, a court reporter who records a FSCO hearing is under a professional and legal obligation to the tribunal. The official role of the court reporter is reflected in s. 22(3) of the Insurance Act, which states:

The evidence and proceedings in any matter before a person referred to in subsection (1) may be reported by a stenographer who has taken an oath before the person to report the evidence and proceedings faithfully.

The requirement that the reporter be sworn is now incorporated in Rule 74.1 of the Fourth Edition of the Code. The Act says nothing about how reporters are to be hired, and does not preclude FSCO appointing and paying reporters. However, the Commission does not currently fund court reporter services, and accordingly, the Code recognizes that this is an expense for the parties.⁷ That a court reporter is hired by a party does not alter the reporter's duty to the tribunal.

There is no requirement that a transcript be prepared when a hearing is recorded, but the Code contemplates that either party may order "all or a portion of the transcript."⁸ By implication, a party may rely on a transcript of part of an arbitration hearing. Dominion submits that no Rule expressly requires a party relying on a transcript of cross-examination to pay for preparation of transcripts of examination-in-chief and re-examination as well.

Dominion's position misunderstands the role of transcripts in FSCO appeals. They must be used fairly. Adjudicators should not allow a party to rely on partial transcripts where that would create an inadequate record for the issues being argued.⁹ In some cases, fairness requires that a full transcript be prepared. This may be necessary, for example, if the appellant presents good reason to believe that the arbitration decision misstates or disregards important oral evidence, or that the arbitrator erred or showed bias in his conduct of the hearing. However, a bald assertion of a flaw in the process is not enough. Nor is a transcript required just because a party disagrees with the arbitrator's assessment of the evidence. Appeals are restricted to questions of law.¹⁰ A perverse finding of fact, or one that ignores or misconstrues important evidence, may amount to an error of law, but an appeal is not a rehearing of the evidence. In this case, the arbitrator gave 29 pages of detailed reasons for his decision, which was based on an extensive documentary record, as well as the oral evidence. I am not satisfied that a full transcript is required for a full and fair hearing of the appeal.

The situation is different, however, with respect to Dr. Schachter's evidence, which has been the focus of the case throughout the process. Both parties have made submissions as to whether the arbitrator misconstrued Dr. Schachter's testimony. Dominion relies on portions of the transcript of the doctor's cross-examination which it submits support the arbitrator's finding. In order to decide this issue fairly, I must consider all of Dr. Schachter's testimony, together with her reports that were admitted into evidence. In my view, it would be as unfair for me to consider only the transcripts of Dr. Schachter's cross-examination as it would be for an arbitrator to disregard the examination-in-chief of a witness, considering only the cross-examination. I find that a complete transcript of Dr. Schachter's oral testimony is necessary for a full and fair hearing of this appeal.

Accordingly, Dominion is required to order the remaining untranscribed portions of Dr. Schachter's evidence. I make this order in exercise of my power to control the proceedings. I considered whether Dominion should be given the alternative of withdrawing the partial transcripts it has already tendered, but I conclude this would be unfair. Dominion has resisted Ms. Z's requests for further transcripts since at least January 2000, while insisting on its right to rely on the portion that, in its view, favours its case. This is one of several disputes that have prolonged this proceeding. Moreover, having reviewed the transcripts provided, I am persuaded I must review Dr. Schachter's oral evidence in its entirety in order to reach a just result in this appeal. Accordingly, my order is unconditional.

If my order involves an exercise of my power to order payment of interim expenses under s.279(11.2) of the Act, I make that order.

V. FRESH EVIDENCE

Ms. Z moved to admit several documents into evidence in the appeal. Director's Delegate Naylor addressed these requests in her letter dated August 28, 2000. Ms. Z withdrew two of her requests, but repeated her motions on the others at the appeal hearing, although the deadline for further submissions set out by Delegate Naylor had long passed. An adjudicator's interlocutory order will not normally be reconsidered by another adjudicator appointed to the proceeding unless the circumstances have changed, new evidence not available to the previous adjudicator calls for reconsideration of the order, or the new adjudicator concludes a different approach is appropriate. In this case, I decided to hear Ms. Z's submissions, over Dominion's protests, because of the length and complexity of the proceeding. However, having considered the matter, I find no reason to depart from Delegate Naylor's orders.

The decision to admit new evidence on appeal is discretionary. The considerations guiding that discretion are (i) whether the party seeking to admit the fresh evidence could have obtained the evidence by due diligence before the hearing; (ii) whether the evidence is reasonably capable of belief; (iii) whether the evidence is relevant in that it bears upon a potentially decisive issue; and (iv) whether the evidence, considered together with the rest of the evidence admitted at the hearing, could reasonably be expected to have affected the result.¹¹ The decision essentially involves balancing the need to bring finality and certainty to the arbitration process against the mandate to reach a just and fair decision.

My detailed reasons follow.

1. Report of Dr. Robert Teasell, dated January 7, 1999

Arbitrator Blackman refused to admit this report because it was not filed and served in advance of the start of the hearing, as required by Rules 36.4 and 32 of the Code. This was a judgment call, given that the hearing was not going to end in January 1999 in any event, allowing Dominion sufficient time to review and respond to the report. Given the history of delays and production disputes in this matter, I am not persuaded he erred in law in attempting to move the matter forward without further complication. In any event, the report was unlikely to influence the outcome, since it was based solely on Ms. Z's report to Dr. Teasell about her condition in January 1999. The report itself indicates that Dr. Teasell last saw Ms. Z on January 28, 1997. That assessment was the subject of his September 11, 1997 report, which was admitted into evidence. The arbitrator found that "Dr. Teasell's opinion regarding Ms. Z's disablity was largely based on Ms. Z's subjective complaints and her opinion as to the limits of her endurance."¹² I am not persuaded admitting Dr. Teasell's January 1999 report would have changed the arbitrator's assessment.

2. Canada Pension Plan Review Tribunal

Both the letter from the Canada Pension Plan Review Tribunal, dated April 20, 1999, acknowledging receipt of Ms. Z's appeal of the initial decision denying her claim for CPP disability benefits, and the decision of the Tribunal, dated May 1, 1999, allowing the appeal, were available to Ms. Z before the arbitration hearing ended. However, I exercise my discretion to admit them as evidence in the appeal. Like Delegate Naylor, I am influenced by the fact that the evidence considered by the Tribunal was evidence that was also before the arbitrator, apart from Dr. Teasell's January 7, 1999 report. The weight to be given the decision is a matter for submissions.

3. Dr. Schachter's letters after the hearing

On January 4, 2000, Dr. Schachter wrote a detailed narrative report to the CPP in support of Ms. Z's claim. She states,

I understand from [Ms. Z] that you are in possession of a transcript of my testimony before Arbitrator Blackman in June of 1999, and perhaps also his interim decision of July 8, 1999 to which I will refer below.¹³

There appears to be a discrepancy between the content of my reports and the testimony. . . . It is the purpose of this letter to clear up these misunderstandings or discrepancies.

Dr. Schachter then goes on to relate what she "intended to communicate" at the hearing.

This is exactly the sort of document the "fresh evidence" rule is intended to exclude. It is an attempt to repair or amend oral evidence given under oath. It is highly prejudicial to the party that seeks to rely on that oral evidence. Moreover, it is unpersuasive because of its apparent purpose. As Dr. Schachter had not seen Ms. Z for almost a year at the time of writing the letter, it contains no new expert evidence that might warrant admitting it. The letter is not admitted.

The parties agree that this letter was incorrectly dated January 4, 1999, and was actually written a year later, as is evident from its contents. Its purpose is not clear, since Ms. Z's CPP appeal was allowed in May 1999. In November 2000, in response to Delegate Naylor's invitation for further information about the letter, Dr. Schachter advised that the letter was dated January 4, 2000, without giving further details about her reasons for writing it. The remainder of the November 2000 letter contains similar comments about her oral evidence as the January 2000 letter. It is not admitted.

Ms. Edgar's letter of Dr. Schachter, dated July 14, 1999, and inviting a further report in response to portions of the transcript setting out Dr. Schachter's testimony has no probative value, and is not admitted.

4. History of Children's Aid Services Involvement

Ms. Z prepared this document as evidence of her functional level prior to the motor vehicle accident. At the appeal hearing, she stated that she read it into the record when she testified before the arbitrator. The arbitrator considered and discussed Ms. Z's personal and family history in his decision. Ms. Z's disagreement with his assessment of that evidence is not sufficient reason to re-open this aspect of the decision. This document is not admitted.

VI. OTHER PRELIMINARY MATTERS

1. Dr. Schachter's Clinical Notes and Records

Dr. Schachter's clinical notes and records were marked as exhibit 35 at the arbitration hearing, and they are found in the exhibit file as a sealed exhibit. Ms. Z submits that the arbitrator never admitted the records, but merely ordered Dr. Schachter to bring them to the hearing for review by Dominion's counsel and the arbitrator. She requests a transcript for June 9, 1999, the day the exhibit appears to have been marked, in support of her allegation that no documentary evidence was admitted after Dr. O'Reilly finished testifying that day.

By letter dated August 28, 2000, Director's Delegate Naylor reviewed the exhibit list, based on the arbitrator's handwritten records. Arbitrator Blackman's entry for exhibit 35 is "sealed exhibit - Dr. Schachter's clinical notes and records." The arbitrator also marked the exhibit number, the date it was marked and sealed (June 9, 1999) and the word "sealed" on the front of the envelope enclosing Dr. Schachter's clinical notes and records. The arbitration decision includes several references to Dr. Schachter's clinical notes and records. I am satisfied the notes were admitted as evidence in the arbitration hearing and considered by the arbitrator.

The remaining question raised by Ms. Z was whether this was consistent with the arbitrator's order.

Whether Dr. Schachter's clinical notes and records should be produced or otherwise discovered has been a recurrent and hotly debated issue throughout these proceedings. Ms. Z relied on a number of reports by Dr. Schachter in support of her claim for benefits. Dominion requested production of the psychologist's clinical notes and records. Dr. Schachter refused. On September 9, 1998, Arbitrator Palmer heard Ms. Z's motion for interim benefits and Dominion's motion for production of Dr. Schachter's clinical notes and records. Dr. Schachter appeared at the motion. She testified that she was concerned that releasing the notes would damage her therapeutic relationship with Ms. Z. On September 25, the arbitrator ruled that the notes were not producible because she was satisfied that the probative value would be outweighed by the potential harm to Ms. Z that production would cause. However, she ordered Dr. Schachter to produce a copy of any raw test results to any psychologist retained by Dominion.

On appeal of the interim benefits decision, Director's Delegate Draper commented on the scope of Arbitrator Palmer's production order:

I interpret the arbitrator's order as a production order that simply relieves Dr. Schachter from delivering a copy of her clinical notes to Dominion. The arbitrator was not advised whether Dr. Schachter would be called as a witness or the nature of her testimony. In my view, therefore, the order does not determine what happens if Dr. Schachter testified. The [hearing] arbitrator remains free to decide that Dr. Schachter cannot properly testify or be cross-examined without allowing her notes to be examined. I also note that the arbitrator made her decision based on current concerns about Ms. [Z's] condition. Hopefully, Ms. [Z's] condition will improve over the next three months and, if so, I see nothing wrong with asking Dr. Schachter to reconsider her position.¹⁴

When the main hearing began before Arbitrator Blackman, Ms. Z's counsel advised that Dr. Schachter would be the only expert witness called on behalf of Ms. Z. Dominion restated its request for production of the notes, and objected to Dr. Schachter testifying or her reports being admitted if the notes were not produced. The arbitrator reserved on the matter, and issued a ruling by letter dated January 14, 1999. He refused to overturn Arbitrator Palmer's production order because he was concerned that doing so "would undermine the pre-hearing process and encourage parties to resubmit already refused prehearing requests before the (different) hearing arbitrator." Unfortunately, this case has been prolonged by both parties' insistence on doing just that, both in arbitration and in appeal.

The arbitrator dismissed Dominion's motion that Dr. Schachter's reports should not be admitted unless the notes were first produced. He noted that neither the Code nor the SPPA requires that an expert's notes be produced before the expert's report is admitted. He concluded,

I do find these notes, prima facie, to be relevant to the issues in this proceeding including causation, entitlement and the reasonableness of the "pay pending dispute" account of Dr. Schachter. However, I find that any unfairness to the Insurer in proceeding to this hearing without examining these records is outweighed by the prejudice to the Applicant, should she not be able to rely on the reports of her treating psychologist.

The arbitrator dismissed Dominion's argument that the Code and the Rules of Civil Procedure required him to prevent Dr. Schachter from testifying if her notes were not produced. However, he was concerned about Dr. Schachter's statement, under oath, that there are matters contained in her notes that are not reflected in her reports. If Dr. Schachter testified about these matters without prior disclosure of the notes, she might have to be re-called. The arbitrator also stated that Dr. Schachter would not "herself be the arbiter of what documents she will or will not allow to be before this hearing or what evidence she will or will not provide."

Accordingly, he ordered Dr. Schachter to bring her complete original file pertaining to Ms. Z when she appeared before him on January 25, 1999. He reminded Dr. Schachter that she would be entitled to counsel, and ordered Dominion to provide Dr. Schachter with any authorities or documentation it would rely upon. Finally, in the event that Dr. Schachter changed her mind about the matter before her appearance, the arbitrator ordered that records produced

shall not be seen by anyone (including office staff) other than the two counsel. No reproductions shall be made of any part of those materials and the documents provided will be returned to Dr. Schachter upon completion of this arbitration hearing. The documents shall be used only for the purposes of this arbitration hearing.

Evidently, Dr. Schachter did reconsider her position. Dominion relies on three letters from Cameron C.R. Godden, a lawyer who apparently advised Dr. Schachter about this matter in May 1999. In a letter to Dr. Schachter, dated May 25, 1999, Mr. Godden indicates that he participated in a telephone conference with Ms. Takahashi and Ms. Edgar, who had been retained by Ms. Z on May 13, 1999, after Ms. Legate withdrew. Mr. Godden refers Dr. Schachter to a letter of the same date to Ms. Takahashi, also copied to Ms. Edgar. The pertinent part states,

We understand Ms. Edgar now represents [Ms. Z]. Further, you both did concur that the clinical notes and records of Dr. Schachter be produced in keeping with the order of Arbitrator Lawrence Blackman in his correspondence of January 14, 1999.

Mr. Godden's letter to Dr. Schachter asks her to "immediately courier the clinical notes and records to Ms. Edgar and that you overnight courier copy to Ms. Takahashi." The agreement is also reflected in the letter to the two counsel. Finally, Mr. Godden wrote to Arbitrator Blackman on June 8, 1999, enclosing the two other letters, and stating,

We confirm on behalf of Dr. Schachter that she does not object to the making of the clinical notes and records as an exhibit to the proceedings. However, to ensure full compliance with the terms of arbitrator Blackman's Order of January 14, 1999, as the arbitration is a public proceeding, we would ask that this exhibit be sealed by Order of the arbitrator and further that same not be made available for public review or inspection. We understand Ms. Takahashi wishes to discuss . . . the clinical notes and records with her psychologist expert. This expert has those same confidentiality obligations as does any health professional under the [Regulated Health Professionals Act]. Accordingly, it is appropriate for such health professional to review this material.

This resolves the matter. Dr. Schachter wisely reconsidered her position and consented to her clinical notes and records being made an exhibit in the hearing, subject to their being sealed. Mr. Godden's letters were faxed to the Commission on June 8, 1999. Arbitrator Blackman marked and sealed the exhibit, to protect it from disclosure to the public, pursuant to s. 9(1)(b) of the Statutory Powers Procedure Act.¹⁵ This did not prevent Ms. Takahashi or Dominion's experts reviewing it for the purpose of the hearing.

At the appeal hearing, Ms. Z claimed she had never seen Mr. Godden's letters. As is appropriate, the letters were sent to Ms. Takahashi and to Ms. Edgar. It may be that Ms. Z does not remember these events, which is not surprising given the passage of time. This is not a sufficient basis for ordering a transcript prepared. Based on the existing record and Mr. Godden's letters, I am persuaded that there was no impropriety in the arbitrator admitting Dr. Schachter's clinical notes and records.

This case exemplifies the difficulty faced by arbitrators attempting to balance an insured person's right to privacy against an insurer's right to know the case it has to meet. This task is particularly challenging when the documents at issue relate to sensitive medical, psychological or personal matters. In this case, complicating factors were Dr. Schachter's vigorous resistance to disclosing her records, and the refusal of Dominion's counsel to accept Arbitrator Palmer's production ruling, conduct that Arbitrator Blackman rightly criticized. Although Dr. Schachter's concern that disclosure would jeopardize her therapeutic relationship with Ms. Z turned out to be well-founded, her notes were clearly relevant in this proceeding because the nature, cause and severity of Ms. Z's psychological problems were critical issues. In hindsight, a clear early ruling that the records must be produced might have better facilitated resolution of the dispute.

2. The Rehabilitation and Surveillance Briefs

Dominion's rehabilitation brief was marked Exhibit 36 and its surveillance brief was marked Exhibit 37. Ms. Z submits that the arbitrator refused to admit either. The briefs were filed under cover of a letter by Ms. Takahashi, dated June 10, 1999, and copied to Ms. Edgar. Dominion asked the arbitrator to reopen the hearing to admit the two briefs, "as agreed to and upon the consent of Ms. Edgar." The letter also indicates that the videotape summaries were removed from the surveillance brief, "as agreed with Ms. Legate," consistent with the arbitrator's refusal to admit the videotape surveillance. Clearly, the arbitrator admitted the briefs, with counsel's consent. I find no impropriety. There is no need to order any further transcripts to clarify this matter.

3. Charter of Rights and Freedoms

At the hearing on June 12, 2001, I ordered Ms. Z to give Notice of Constitutional Question, as required pursuant to the Code,¹⁶ by July 3, 2001. No Notice has been given. In the absence of notice, I will not hear submissions with respect to any constitutional question, defined in the Code as:

(a) the constitutional validity or constitutional applicability of legislation, of a regulation or by-law made under legislation, or of a rule of common law, is in question;

(b) a remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms, in relation to an act or omission of the Government of Ontario.

VII. CONCLUSION

No further submissions will be accepted, either orally or in writing, on any of the issues decided in this preliminary decision. This matter will now proceed without further delay.