Neutral Citation: 2001 ONFSCDRS 38

FSCO A00-000522

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CHERYL CAMPEAU

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION ON PRELIMINARY PRODUCTION ISSUES

Before:

Lawrence Blackman

Heard:

October 19, 2000, by telephone conference.

Written submissions were received November 16, 24 and 30, 2000.

The pre-hearing discussion was resumed by telephone conference on January 25, 2001

Appearances:

James E. S. Allin for Ms. Campeau

William G. Woodward for Liberty Mutual Insurance Company

Issues:

The Applicant, Cheryl Campeau, was injured in a motor vehicle accident on September 23, 1994. She applied under the Schedule¹ for certain statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), which were denied. The parties were unable to resolve their disputes through mediation and Ms. Campeau applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the Insurance Act").

The initial pre-hearing discussion in this matter was held on October 19, 2000. The following issues were identified and agreed upon by the parties:

1. Did Ms. Campeau sustain an impairment within the meaning of section 1 of the Schedule as a result of the accident?

2. Is Ms. Campeau entitled to receive weekly caregiver benefits from September 30, 1994 and ongoing pursuant to section 18 of the Schedule and, if so, what is the quantum of the weekly caregiver benefit?

3. Is Ms. Campeau entitled to payment of the supplementary medical and/or rehabilitation expenses set out on pages five and six of the January 29, 2000 report of Sunnyside Rehabilitation Services, claimed pursuant to subsections 36(1) and 40(5) of the Schedule?

4. Is Ms. Campeau entitled to $1,200 for child care and housekeeping services, claimed pursuant to sections 36, 54 and 55 of the Schedule?

5. Is Ms. Campeau entitled to payment of the cost of examinations [the Applicant to provide, at least 30 days before the start of the arbitration hearing, the particulars of the accounts claimed as well as copies of the reports for which the examination costs are claimed], including the sum of $482.84 for the January 29, 2000 report of Sunnyside Rehabilitation Services, pursuant to section 57 of the Schedule?

6. Is Liberty Mutual liable to pay a special award pursuant to subsection 282(10) of the Insurance Act, R.S.O. 1990, c. I.8, as amended because it unreasonably withheld or delayed payments to Ms. Campeau?

7. Is Liberty Mutual liable to pay Ms. Campeau's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

8. Is Ms. Campeau liable to pay Liberty Mutual's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Ms. Campeau also claims interest on any amounts owing.

A broad issue in this proceeding is causation. The Insurer disputes both initial as well as ongoing entitlement to benefits. Liberty submits that the first notice it received of any claim for accident benefits was a letter from the Applicant's counsel, dated September 28, 1998. The Applicant submits that shortly after the September 23, 1994 motor vehicle accident, she verbally contacted an employee of the Insurer, who advised her that she did not have any entitlement to benefits.

At the pre-hearing discussion, I made certain production rulings which were set out in my letter dated October 24, 2000. On other production disputes, I allowed written submissions on the following agreed basis:

(a) The Applicant to serve and file her Factum and supporting cases within 30 days of this pre-hearing discussion;

(b) The Insurer to serve and file its Factum and supporting cases within 10 days of receipt of the Applicant's Factum and supporting cases; and,

(c) The Applicant to serve and file any Reply within 10 days of receipt of the Insurer's Factum and supporting cases.

The production issues in dispute were as follows:

1. Expert Reports

The Applicant sought production of:

(a) copies of all medical reports of any kind in Liberty Mutual's possession, whether or not it intended to rely on them, the drafts of all medical reports, and copies of all physicians' clinical notes and records in Liberty Mutual's possession or control, whether or not it intended to rely on them; and,

(b) copies of all other expert reports in Liberty Mutual's power, possession, or control, whether or not it relied on them, and copies of any drafts of such reports.

The Applicant argues that this Commission has an established policy of full production exchange. She submits that the Insurer's obligation of good faith includes fully and fairly disclosing all information in its power, possession or control. Ms. Campeau further submits that draft expert reports and clinical notes and records should be produced both to disclose whether the Insurer has indeed acted in good faith as well as provide a full understanding of the reports produced.

At the initial pre-hearing discussion, after hearing oral submissions from both counsel, I ordered that:

the Insurer shall request, and produce to the Applicant upon receipt, the complete clinical notes and records, including any draft reports, in the possession of all medical practitioners who performed any assessments on the Applicant either as an insurer's medical examination (IMEs) or as a designated assessment centre (DAC).

IME and DAC reports are not privileged. Subsection 65(3) of the Schedule states that the person or persons who conduct insurer examinations shall prepare a report and provide a copy of the report to both the insurer and to the insured person. Subsection 64(10) of the Schedule states that after conducting an assessment, the person or persons who conducted the DAC assessment shall prepare a report and provide a copy of the report to the insurer, the insured person and the insured person's health practitioner.

IME and DAC examinations are not defence medical examinations. They do not arise because the physical or mental condition of an adverse party in an existing legal proceeding is in question. They are legislatively mandated as part of a statutory scheme of first-party contractual rights and obligations, to clarify, as part of the normal adjusting process, whether an applicant has met the applicable entitlement requirements.

In General Accident Assurance Co. v. Chrusz et al., 1999 CanLII 7320 (ON CA), [1999] 45 O.R. (3d) 321, the Ontario Court of Appeal held that the appropriate test for privilege is the "dominant purpose" test, and that the onus is on the party asserting the privilege to establish the evidentiary basis for the privilege. If the dominant purpose of an IME or DAC examination is litigation, actual or contemplated, then the statutory provisions are being abused. As stated by Arbitrator Allen in Swanson and Wellington Insurance Company (FSCO A98-000067, May 26, 1998), the purpose of section 65 is to adjust an applicant's claim, not to acquire medical evidence to bolster an insurer's case for the arbitration hearing.

As no privilege attaches to IME or DAC medical reports, then neither are the draft reports or the clinical notes and records of the persons who prepared the reports privileged.

I find the following comments from Vancouver Community College v. Phillips, Barratt (1987), 1987 CanLII 2532 (BC SC), 38 L.C.R. 30 helpful:

So long as the expert remains in the role of a confidential advisor, there are sound reasons for maintaining privilege over documents in his possession. Once he becomes a witness, however, his role is substantially changed. His opinions and their foundation are no longer private advice for the party who retained him. He offers his professional opinion for the assistance of the court in its search for the truth. The witness is no longer in the camp of a partisan. He testifies in an objective way to assist the court in understanding scientific, technical or complex matters within the scope of his professional expertise. He is presented to the court as truthful, reliable, knowledgeable and qualified. It is as though the party calling him says:c"Here is Mr. X, an expert in an area where the court needs assistance. You can rely on his opinion. It is sound. He is prepared to stand by it. My friend can cross-examine him as he will. He won't get anywhere. The witness has nothing to hide."

It seems to me that in holding out the witness's opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert's papers from production. He presents his evidence to the court and represents, at least at the outset, that the evidence will withstand even the most rigorous cross-examination. That constitutes an implied waiver over papers in a witness's possession which are relevant to the preparation or formulation of the opinions offered, as well as to his consistency, reliability, qualifications and other matters touching on his credibility.

Eberle J., in Bell Canada v. Olympia & York Developments Ltd. (1989), 1989 CanLII 4170 (ON HCJ), 68 O.R. (2d) 103, disagreed with the conclusion in Vancouver Community College. He expressed the concern that "it would lead almost inevitably to the conclusion that a party who becomes a witness could well be in danger of cross-examination on communications passing between him and his solicitor." Rosenberg J., however, in Potter Station Power Co. v. Inco Ltd., [1998] O.J. No. 4522, applied the decision of Delgamuukw v. British Columbia (1988), 1988 CanLII 3194 (BC SC), 32 B.C.L.R. (2d) 152, even though the latter was decided under the British Columbia Rules. In Delgamuukw, Chief Justice McEachern held that once an expert's report is furnished in compliance with the provincial Evidence Act, the "expert's report or opinion, and the facts upon which they are based, even though prepared for the purpose of litigation, and originally privileged, must all be produced to opposing parties as the privilege is deemed to be waived." However, it was further held that the "privilege attaching to other communications, if any, such as correspondence with solicitors, is not deemed to be waived at that time."

IMEs and DACs are not retained as confidential advisors. They are not supposed to be in the camp of a partisan." Hence, there is even more reason that their draft reports, notes and records be produced. Because their statutory role is non-litigious, I further find that any correspondence between counsel and these medical practitioners must also be produced.

In her written submissions submitted after my initial orders, the Applicant again sought copies of the Insurer's expert reports, drafts and records, whether medical or non-medical.

Liberty Mutual now advises that it has not conducted any IME or DAC assessments. I am not advised as to whether Liberty Mutual has obtained any expert reports. The Commission's process does not allow for examinations for discovery or affidavits of documents as part of our pre-hearing procedure. Hence, I am being asked to make an order in a vacuum.

I find that whatever good faith obligations a first-party insurer may have do not eliminate an insurer's right to claim privilege for non-IME or DAC reports. Subsection 5.4(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, states that a tribunal's power to make orders for disclosure does not authorize the making of an order requiring disclosure of privileged information. "

I also agree with Liberty Mutual that there may be reports that are not relevant to this proceeding. The Applicant speculates that the Insurer may have retained an accountant to calculate a Loss of Earning Capacity Benefit ("LECB") claim. However, given that no weekly benefit has ever been paid and that LECBs are not in dispute in this proceeding, how such a report would be relevant (if it even existed) escapes me.

Order:

Given the constraints noted above, my further order is as follows:

(1) consistent with my order set out below, the Insurer shall produce any expert report created on or before December 19, 1999 or created after December 19, 1999 as the result of requests, directions, investigations, demands or like actions instituted by the Insurer on or before December 19, 1999;

(2) both parties shall exchange their medical indexes, if they have not already done so. If there is any dispute as to the production of further medical documentation arising from the indexes, the OHIP summary, clinical notes or records previously exchanged, or any other source, this pre-hearing may be resumed, if necessary, by telephone conference before me; and,

(3) if either party intends to file an expert report at the arbitration hearing or to call an expert to give oral evidence, that party shall serve on the other side, at least ten days before the start of the arbitration hearing, copies of all reports of the expert, including any drafts, as well as copies of the notes and records of the expert, but excluding (only for non-IME or DAC medical practitioners) any communications with counsel (in accordance with Delamuukw).

2. Surveillance and Investigation

After receiving oral submissions from the parties on October 19, 2000, I ordered the Insurer to advise the Applicant, by December 31, 2000, whether it intended to rely on any part of its surveillance or investigative evidence and, if it intended to rely on any portion of such evidence, to provide the Applicant, also by December 31, 2000 with:

(a) the names and qualifications of all persons who secured the investigative or surveillance evidence, and the dates, times and places where any surveillance or investigation was undertaken; and,

(b) copies of all videotapes, photographs, reports, notes and summaries taken or prepared by anyone on behalf of the Insurer, whether or not the Insurer intends to rely on the particular documentation at the hearing.

In my view, section 37 of the present Dispute Resolution Practice Code, Third Edition, April 15, 1997, sets out, if anything, a minimum, not a maximum level of production regarding surveillance and investigative evidence. I find that it would be unfair, and further contrary, to a first party's duty of the utmost good faith to its own insured, to be allowed to pick and choose amongst its surveillance and investigative evidence, and produce only what it felt would advance its own case. If an insurer is to be allowed significant invasion of its insured's privacy, at a minimum, even when it intends to rely on only certain portions, it should be required to produce all such evidence. Such an approach reflects this Commission's evolution in this area, and is consistent with the intent of Rule 40 of the new draft Dispute Resolution Practice Code. Since rendering this order, I was provided with a copy of the endorsement in Perigny v. Royal Insurance Company of Canada (Court File No.: 98-CV-158130, July 19, 2000). In that decision, Brennan J. held that "if some surveillance evidence is disclosed to the claimant, privilege is waived for all such evidence" (emphasis in the original). In Puljic and Zurich Insurance Company (FSCO P00-00022, June 1, 2000), the Director's Delegate questioned the appropriateness of limiting the insurer's production obligations to those occasions when it decided to rely on any portion of the surveillance or investigative evidence. He commented that:

Courts and tribunals have generally been moving toward early and full disclosure, minimizing the ability of a party to "bury" relevant information that might assist the other side. The Commission certainly encourages the early exchange of documents as an important part of the mediation process and to ensure a fair hearing.²

As this Commission encourages early document exchange, in the circumstances of this case, and specifically that mediation was held in April 2000, I considered that December 31, 2000 allowed the Insurer more than a reasonable period of time to decide whether it intended to rely on any portion of its surveillance or investigative evidence.

3. Liberty Mutual's Accident Benefits File

The Applicant sought Liberty Mutual's full accident benefits file, including:

(a) copies of all adjusters' notes in connection with this matter, including those maintained electronically;

(b) any policy manuals in the possession, power or control of Liberty Mutual instructing its adjusters on how to handle the claim;

(c) any documentation dealing with reserves; and,

(d) any legal opinion obtained by Liberty Mutual in connection with adjusting this claim.

In her November 30, 2000 Reply, the Applicant limited her request for the adjusters' notes and the accident benefits file up to the date of the Application for Mediation. She states that the Application for Mediation was forwarded to the Commission on December 20, 1999.

Ms. Campeau submitted that full and fair disclosure required production of the Insurer's complete accident benefits file. She argued that the manuals were required to compare company policy with the actual handling of this claim. She further argued that disclosure of reserve information would determine whether the Insurer's handling of this matter agreed with its own adjusters' assessment of the claim and that any legal opinions might help explain why the claim was denied.

Liberty Mutual submitted that in this particular case litigation was reasonably anticipated from the outset and that, therefore, all of its adjusters' materials were privileged. It further submitted, citing the appeal decision in Leitgeb and Allstate Insurance Company of Canada (OIC P-012407, November 16, 1995), that a claim for a special award does not by itself provide a foundation for production of all records. The Insurer submitted that there was no explanation or basis advanced for this request, nor was there any relevance to the issues in dispute. The Insurer submitted that if its records were ordered produced, then a corresponding order should be made that all of the Applicant's notes and records should be produced, including her counsel's file, as being relevant to the Insurer's claim for its expenses and whether the Applicant's claim was frivolous or vexatious. I note, however, that the latter is not listed as an agreed issue in this proceeding.

I will deal with the above items separately.

The Adjuster's file

As noted above, the Ontario Court of Appeal adopted the "dominant purpose" test in Chrusz and held the onus is on the party asserting the privilege to establish an evidentiary basis for same. The "substantial purpose" test is no longer good law.

I agree with the comments of Salhany J. in Hall v. Co-operators General Insurance Co. (1992), 14 C.P.C. (3d) 356, that:

In my view, it is not open for an insurance company to claim that it is anticipating litigation simply because an insured wishes to be paid for what he or she believes to be an insured loss.

This excerpt echoes comments made decades earlier by the Ontario Court of Appeal in Blackstone v. The Mutual Life Insurance Company of New York, 1944 CanLII 92 (ON CA), [1944] O.R. 328:

Many years ago a Chief Justice of the Court of Appeal of this Province spoke of the "arts, by which a certain class of insurance companies aim at combining the collection of premiums with the non-payment of losses": Ballagh v. The Royal Mutual Fire Insurance Company (1880), 5 O.A.R. 87, per Moss C.J.A. at p. 90. That class of insurance company is, I think, practically extinct, and it is commonly the practice of insurance companies to investigate the claims of their insured with a fair and open mind, and not to anticipate litigation until they have ascertained whether or not there is any basis for it.

[emphasis added]

These comments were adopted by Arbitrator McMahon in his pre-hearing letter in Mehrani and Wellington Insurance Company (OIC A-010327, June 5, 1995).

I further agree with the comments of Lord Denning in Waugh v. British Railways Board [1980] A.C. 521, cited by Stinson J., in McCullough v. Axa Insurance Company (an unreported decision dated July 21, 2000), that:

If material comes into being for a dual purpose, one to find out the cause of the accident, the other to furnish information to the solicitor, it should be disclosed, because it is not then wholly or mainly for litigation.

[emphasis added]

As noted above, the Applicant submits that she contacted an employee of the Insurer shortly after the September 23, 1994 motor vehicle accident. The Insurer submits that the first notice it received of any claim for accident benefits was a letter from the Applicant's counsel dated September 28, 1998. The Insurer's representative, Crawford Adjusters Canada ("Crawford"), sent a brief letter dated November 6, 1998, marked "without prejudice" to the Applicant's counsel, wherein it stated that it would "not be in a position to meet with [counsel] unless we can obtain a Non-Waiver Agreement." This letter was followed by further correspondence from Crawford dated December 1, 1998, which stated, in part:

Initial investigation indicates to the insurer that the insurer may decide to deny payment to you under the policy.

The insurer intends to proceed with an investigation of the cause and amount of loss or damage claimed by you, and the circumstances surrounding the application for an issuance of the policy, pending the determination of the respective rights and obligations under the policy of you and the insurer.

Specifically, the insurer intends to make such investigations of the occurrence and your claims arising therefrom, and to make such investigations of the circumstances surrounding the application for and issuance of the policy, as it deems necessary.

Any actions taken by the insurer shall be "Without Prejudice" to the Rights of the Insurer in respect of the policy.

The insurer reserves all of its rights under the policy and does not waive any of its rights with respect to the policy by investigating the occurrence, the circumstance surround [sic] the application for an issuance of the policy, or your claims arising from the occurrence.

[emphasis added]

I have no evidence or submission that counsel was retained by the Insurer at this point in time, or indeed until arbitration was accessed by the Applicant.

It may be that Liberty Mutual approached this claim with a reasonable anticipation of litigation. Liberty Mutual may have been of the view, when it received correspondence from the Applicant's counsel in 1998, that the claim was possibly statute barred and that litigation might ultimately ensue. However, "reasonable anticipation of litigation" is not the test today in Ontario for establishing a claim for privilege.

From the correspondence submitted by the Insurer itself, it is clear that an important, if not the major, intent of its representative was "an investigation of the cause and amount of loss or damage" (quoting the Crawford letter) sustained by the Applicant. I have no evidence, nor does the Insurer submit that this investigation was done other than with "a fair and open mind" as stated in Blackstone above. In any event, I find that the correspondence, at the very least, indicates a dual purpose.

In light of Lord Denning's decision, adopted by the Ontario courts, I am not persuaded, that at least before mediation was sought, that the documents created in this matter by the Insurer came into existence for the dominant purpose of litigation. Rather, one would expect that the Insurer was processing the claim in accord with "its statutory and contractual obligation to deal with each claim."³ I am not persuaded that a request that the Applicant sign an agreement that the Insurer was not waiving any rights, specifically regarding any possible failure by the insured to comply with notice or limitation requirements, by itself cloaks all subsequent adjusters' notes with privilege.

In neither case cited by the Insurer in support of it position, being Leitgeb (supra) and Allstate Insurance Company of Canada and Al-Obaidi (FSCO P00-00009, May 2, 2000), was there any concern that the pre-hearing production order for production of the adjusters' notes violated any privilege.

Rather, the concern in both those decisions was the relevance of the requested production.

It appears obvious that prima facie, a significant part of the insurer's file is going to be relevant to the entitlement issues in dispute. The whole raison d'etre of the insurer's adjusting file is to respond to the applicant's no-fault claim arising from the motor vehicle accident in question. Therefore, substantive portions of the insurer's file are routinely produced, such as medical documentation, statements from the insured, particulars of property damage and correspondence to and from the insured.

When a special award is sought, the relevance of the insurer's file becomes even greater.

In Leitgeb, as the pre-hearing arbitrator, I had ordered that the insurer produce to the applicant copies of its internal memoranda up to the date the insurer had received the applicant's request for mediation. In revoking this order, the Director's Delegate held that:

the special award provision does not create an entirely separate basis for production. An applicant seeking production from an insurer's records must demonstrate some reasonable basis for its relevance to the issues before the arbitrator.

[emphasis added]

Special awards are statutorily mandated in subsection 282(10) of the Insurance Act. They oblige an arbitrator to make such an award where there is a finding that "an insurer has unreasonably withheld or delayed payments." This provision raises unique questions, amongst others, why did the insurer refuse or delay payments (if indeed there was a refusal or delay), what did it know, when did it know it, what did it rely on and, accordingly, was the refusal or delay reasonable? Unique questions which an arbitrator may be called upon to answer can create a relevant separate basis for production.

Entitlement questions under the various schedules require an applicant to establish, on a balance of probabilities, that he or she meets the statutory prerequisites of the particular section. Short of a concession at the arbitration hearing, the fact that the insurer may have thought or ought to have known that the applicant had met the statutory requirements, is irrelevant. The appeal decision in Royal Insurance Company of Canada and Clark (OIC P97-00008, September 26, 1997) acknowledges the unique evidentiary nature of special awards, when the Director's Delegate states that "an adjuster's testimony may be unnecessary unless a special award is in issue."

This point was noted by Arbitrator McMahon in his pre-hearing letter in Link and Zurich Insurance Company (OIC A98-000142, June 16, 1998), wherein he stated that where there is a special award claim, "the Director's Delegate recognized that additional evidence that does not speak directly to the individual's entitlement to the substantive benefit, may be necessary."

The Director's Delegate also stated in Clark that "the principles of natural justice and fairness required notice that [the Insurer] was facing a special award order and a reasonable opportunity to respond."

To provide such reasonable notice, applicants are often required to provide particulars of their special award claim within a set period of time of the pre-hearing discussion. This presents difficulties in a system premised on a more expeditious, streamlined and cost-efficient method of adjudication, a fact alluded to by Arbitrator McMahon in Link:

In the absence of affidavits of documents or oral pre-hearing discovery, it is impossible for the applicant to know if there is anything in the adjuster's file that speaks to these matters. In that sense the applicant is in the same position as the insurer who has little opportunity to ascertain if a pre-existing medical condition exists or is germane unless they are given access to the individual's pre-accident medical history for some reasonable period of time. Ultimately much of the pre-accident medical history is irrelevant and would not be admissible at a hearing, but it is routinely ordered to be produced at the pre-hearing stage, as the only expedient way of ascertaining if it is of use. The same opportunity must be afforded to the insured in her investigation of what information the insurer has that speaks to the specific benefits issue, and the claim for a special award.

I agree with Arbitrator McMahon's comments.

In Al-Obaidi, the Director's Delegate referred to a principal function of the pre-hearing process of focussing the hearing. Streamlining and shortening an arbitration hearing may, in appropriate circumstances, be accomplished by a production order that may be broader than what may ultimately be allowed in as evidence at an arbitration hearing. This discovery part of the pre-hearing process allows parties to determine at an early stage what is truly relevant, without being forced to call witnesses, whose records might be relevant, to testify at the hearing.

In Leitgeb, the Director's Delegate held that the "focus of the arbitration . . . is on the applicant's entitlement to benefits, or the proper amount of the benefits. The basis for ordering a special award arises out of that inquiry. The special provision does not expand the arbitration into a generalized inquiry into the insurer's conduct."

The Insurance Act does not give arbitrators the jurisdiction to generally inquire into the insurer's conduct. The arbitrator's mandate is to determine whether an insurer has unreasonably withheld or delayed payments. I do not read the above passage in Leitgeb to mean that the Insurance Act merely reduces special awards to a minor subsidiary matter or precludes any expanded scope for production exchange.

Subsequent to Leitgeb, the position of the Commission has evolved in this production area, endeavouring to balance the promotion of an expeditious and cost-efficient process while ensuring a fair exchange of documentation which may be relevant for the arbitration hearing.

In Belair Insurance Company and Candido (FSCO P99-00055, November 9, 1999), the Director's Delegate upheld the pre-hearing arbitrator's order that the insurer produce its notes, memoranda or other documents concerning its decision to deny the occupational therapy benefits in dispute, subject to litigation privilege, and that the insurer describe all documents for which privilege was claimed, including the basis of the privilege claimed.

A broader production order was given by Arbitrator McMahon in Link, namely that the insurer produce "the adjuster's notes and internal memoranda that relate to the applicant's general medical condition and to those specific benefits enumerated under the 'issues' section." The Arbitrator noted that whether these documents were ultimately admissible at the hearing was to be left to the hearing arbitrator. As implicitly acknowledged in Leitgeb, a pre-hearing production order does not establish the relevance of the documents for the purpose of the hearing itself.

The "Link" approach was followed by Arbitrator Wacyk, in her pre-hearing letter in M.S. and York Fire & Casualty Insurance Company (FSCO A00-000387, September 8, 2000) wherein she held that:

Subject to any claims of privilege, York Fire is ordered to produce the adjuster's notes and internal memoranda that relate to the Applicant's general physical condition or mental condition and to those specific benefits enumerated under the "issues" sections above.

In the event the Insurer withholds a note or document on the basis that it is not relevant, or is privileged, the Insurer shall provide a description and summary of the withheld note or document, together with a reason why it is not relevant, or the basis for the claim of privilege, within 60 days of the date of this letter.

In Zanelli and Security National Insurance Company (FSCO A00-000497, October 30, 2000), Arbitrator Leitch ordered pre-hearing production of all "documents, notes and records in the Insurer's file up to the date of mediation except those documents which, in the opinion of Insurer's counsel, are privileged or are clearly not relevant for the purpose of acquiring an understanding of the claims made by the Applicant as a result of the accident and the Insurer's handling of them. In the event certain documents are not disclosed to the Applicant in accordance with this order, Insurer's counsel will so indicate and will identify the basis of the refusal to disclose."

In Xiao and State Farm (FSCO A00-000471, October 23, 2000), the insurer agreed to produce its log notes up to the date arbitration was filed. Arbitrator Palmer declined to order other log notes to be produced.

In Shadd and Liberty Mutual Insurance Company (FSCO A99-001201, August 15, 2000), Arbitrator Novick ordered the insurer to produce all relevant documents from its accident benefits file, including adjusters' notes from the date the file was opened until the date the insurer first received notice of the Application for Mediation, that were not subject to privilege. The insurer was to prepare a list of the documents that it objected to producing on the ground of privilege, briefly describing each and setting out the reason why it objected to disclosing it. Arbitrator Novick declined to order production of training manuals or information regarding reserves.

In the letter decision of Guerriero and Royal Insurance Company of Canada (FSCO P98-00032, September 10, 1998), the Director's Delegate upheld Arbitrator McMahon's pre-hearing order that the insurer "deliver a copy of its entire file, subject only to reserving information, up [to] the date on which it retained" counsel. One ground of the insurer's appeal was the alleged failure of the arbitrator to consider whether the documents ordered produced had any relevance to the issues in dispute between the parties, contrary to Leitgeb. The Director's Delegate summarizing the parties "inadequate efforts to share relevant information before the pre-hearing," held that:

In the circumstances, I accept that documents detailing the handling of his claim may be relevant to the issues of entitlement and special award. In the absence of any specific examples of documents that are clearly irrelevant or privileged, I am not convinced that the arbitrator's order is so clearly flawed that the arbitration proceedings should be interrupted while the appeal proceeds. [emphasis added]

The Director's Delegate thus did not require specific relevance to be established but rather indicated that the documents ordered produced might be relevant. This is not inconsistent with the order of Arbitrator Wilson in Nigro and State Farm (FSCO A99-000656, April 28, 2000) that:

I find that, if an applicant demonstrates a reasonable possibility that a document in an insurer's file is relevant to the issues at arbitration, that is sufficient to allow an arbitrator to order production of the document, subject to any claim for privilege.

Arbitrator Wilson prefaced this statement by saying:

Such an approach [referring to Allied Signal Inc. v. Dome Petroleum (1995) A.J. No. 1100] is consistent with the practice of the Commission in routinely ordering full production of the medical records of applicants, up to one year prior to the motor vehicle accident, without the necessity to demonstrate the relevance of each and every document contained in the record. [emphasis added]

In his pre-hearing letter in Al-Obaidi and Allstate Insurance Company of Canada (FSCO A99-000889, January 7, 2000), the arbitrator ordered the insurer to produce its notes up to the date the applicant applied for mediation, except for entries from the beginning of an earlier mediation to the settlement of those issues. On appeal, the arbitrator's pre-hearing order was restricted to those notes created after the insurer received notice of the specific claim in dispute, subject to the pre-hearing arbitrator's further restrictions. Unlike Candido, the notes during this period were to be produced in their entirety.

The Director's Delegate stated that she had "no reason to conclude that the arbitrator was wrong in rejecting a claim for privilege for the balance of the notes." Her concern, rather, was relevance.

The Director's Delegate referred to several provisions in the Statutory Powers Procedure Act, (sections 5.4(1) and (2), and 15.1), and the Dispute Resolution Practice Code (Rules 1, 32.1 and 32.4). These provisions, in essence, provide for the early, expeditious and fair exchange of relevant, non-privileged documentation reasonably necessary to determine the issues in dispute. This is similar to the intent of Rule 77.02 of the Rules of Civil Procedure, which establishes a case management system that "reduces unnecessary cost and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding."

As noted in Link above, it is difficult, if not impossible, to establish the relevance of every document in a file one has never seen. One does not know, before seeing the file, whether every entry of a collateral insurer, Canada Pension Plan, or a treating care provider will actually be relevant to the issues in dispute in the hearing. However, there is no onus on an insurer to prove the relevance of every entry in documents it has not seen. Rather, fairly broad stroke orders are often made on the premise that such notes (within certain confines where the arbitrator is so persuaded) are very possibly relevant to the issues in dispute.

Arbitrator Wilson, in Nigro, referred to the problem of establishing relevance in the dark, stating:

When the internal decision-making of the Insurer is being impugned by an applicant, as in the case of a special award, it is next to impossible to present a case without access to the internal documents of the Insurer . . .

Without access to the entire document, however, Mr. Nigro is forced to argue the relevance of the excised portions in a vacuum. It may well be unfair and counter-productive to the fairness of the hearing process to oblige a party to prove that a document is relevant, to the same degree that would be required for admissibility of the document at the ultimate hearing of the matter.

Arbitrator McMahon noted in Link that one could anticipate "that in cases where benefits have been paid over a long period of time that the adjuster's file may be voluminous and much of it may not be germane to the issues at hand." Likewise, regarding medical evidence, it is not uncommon for an applicant who has been receiving or claiming benefits over a long period of time to have seen numerous medical practitioners and treatment providers, who have voluminous records, much of it, presumably irrelevant. Every notation about every cough and sneeze is hardly "reasonably necessary."

On the other hand, medical entries may note abortions, extra-marital affairs and a myriad of other extremely private matters. The relevance of these matters to a claim such as a soft-tissue disability, especially without any alleged emotional component, may be questioned. Nevertheless, without even a bald allegation of a causation issue, insurers are routinely provided with the entire clinical notes and records of an applicant's medical practitioners from the standard period of one year prior to the motor vehicle accident, without any restriction to those entries which the applicant finds relevant.

Such records, in significant measure, are produced to allay a variety of possible concerns, including causation. A general practitioner who saw an applicant shortly before the motor vehicle accident in question solely for a cold will presumably be spared the necessity of attending at a hearing if his or her notes are produced in advance of the hearing. In other cases, cross-examination can be fine-tuned if clinical notes are produced early.

Parties often on their own, or with the assistance of arbitrators, especially where there is a measure of reasonableness and trust between the parties, work out realistic compromises on what documents are truly needed. In other cases, where appropriate in the particular circumstances, arbitrators may impose restrictions on the breadth of production.

Examples of such restrictions are noted by the Director's Delegate in Al-Obaidi:

[r]elevance is a necessary, but not necessarily sufficient, requirement. In exercising the discretion to make an order, relevance and reasonableness are the guiding principles. The degree of relevance is weighed against other factors, such as the sensitivity of the information, the practicalities of compliance and the timing of the request.

Similar production issues have been dealt with by the courts, which have moved towards a more expansive production of the insurer's internal file.

Cappadocia v. Canadian General Insurance, supra (see Footnote 2) was a claim for no-fault benefits and bad faith punitive damages. On a motion for production from the insurer's file, Case Management Master Polika held that the initial question was when did the insurer's investigations and the adjuster's actions switch from satisfying its statutory and contractual obligations to deal with each claim, to anticipated litigation. He found that to be the date when the insurer advised that benefits would not be reinstated and that it sought payment of an alleged overpayment. Master Polika applied the "dominant purpose" test.

Master Polika ordered that the defendant insurer deliver a sworn affidavit of documents and further forthwith produce the adjuster's notes, investigation reports, certain correspondence and memorandum and surveillance video tapes. For certain documents, Master Polika found that there was insufficient evidence to determine their dominant purpose. Master Polika ordered these produced, consiste nt with the onus being on the party claiming such privilege to establish same. While privilege was disputed in this motion, the relevance of the documents was not.

In Perigny, Brennan J. ordered production of the insurer's file relating to the handling of the claim and the benefits payable, until the date the statement of claim was delivered, as it was not established that such documentation was produced for the sole or dominant purpose of litigation until that time. Brennan J. held that even after the start of the action, the activities of the defendant insurer might be relevant to a bad faith claim and must be the subject of updated supplementary affidavits of documents where reasonably requested, up to the date of trial. Brennan J., however, held that correspondence with the defendant's solicitor and in-house communications relating to solicitor's advice were the subject of solicitor-client privilege and were not to be produced.

Samoila v. Prudential of America General Insurance Co. (Canada) 2000 CanLII 22690 (ON SC), [2000] O.J. No. 2746, July 14, 2000, was a claim for bad faith damages against a sickness and accident insurer. The plaintiff's claim for benefits and the insurer's claim for reimbursement had resolved. Brockenshire J. held that the plaintiff was entitled to, amongst other items, "the entire claims file, including everything and anything in the file during the period that the company maintained its refusal to pay."

Brockenshire J. relied on the decision of Berguson v. National Surety Corporation (1986), 112 F.D.R., 692 (U.S.D.C., Montana), wherein Judge Lovell held that:

Bad faith actions against an insurer, like actions by client against attorney, patient against doctor, can only be proved by showing exactly how the company processed the claim, how thoroughly it was considered and why the company took the action it did. The claims file is a unique contemporaneously prepared history of the company's handling of the claim; in an action such as this the need for the information in the file is not only substantial, but overwhelming.

I find that although special awards are not identical to bad faith damages, they are similar to the types of claims noted by Judge Lovell.

In McLoughlin v. Royal Insurance Canada [1997] O.J. No. 4707, November 3, 1997, the plaintiffs action included claims for punitive and exemplary damages. Master Polika ordered production of the insurer's documents created on or before August 2, 1996, being the date of termination of Mr. McLoughlin's benefits. Both parties agreed that privilege was determined according to the "dominant purpose" test. Master Polika cited Salhany J. in Hall v. Co-operators (supra), defining the word "dominant" from the Concise Oxford Dictionary as "ruling, prevailing, most influential; (of high place) outstanding, overlooking others." He continued quoting Salhany J. that:

If Mr. Warnock was going about his business with "a fair and open mind," then it could not be said that his dominant purpose in conducting an investigation was for the purpose of anticipated litigation.

Master Polika held that until August 2, 1996, when accident benefits were terminated, the dominant purpose of the insurer's activities "was to process the claim in accord with its contractual obligations and the statutory scheme which set out the insured's obligation in that regard." He further held that until the request for mediation, any steps taken by the insurer had as their dominant purpose the giving effect to its statutory and contractual obligations. Master Polika ordered production of those documents created on or before August 2, 1996 or that "were the results of requests, directions, investigations, demands or like actions instituted on or prior to August 2, 1996."

Finally, in McCullough, a claim for accident benefits and bad faith damages, Stinson J. set aside the Master's Order and ordered production of the claims manuals, memoranda and directives of the insurer relating to the delivery of and handling of claims for income replacement benefits and medical and rehabilitation benefits and the adjuster's notes relating to the plaintiff's claim until September 9, 1998. Stinson J. held that:

Our system of litigation requires disclosure of information about the existence of documents. It should not be a cat and mouse exercise . . .

Order:

In the case before me, I order that Liberty Mutual produce to the Applicant copies of its complete accident benefits file pertaining to Ms. Campeau, up to December 19, 1999, being the date mediation was sought in this matter. This shall include copies of all adjusters' notes in connection with this matter in writing or maintained electronically and including those documents created after mediation but as the result of earlier requests, directions, investigations, demands or like actions instituted by Liberty Mutual. I do so for the following reasons:

(a) Liberty Mutual has failed to persuade me that litigation was the dominant purpose of its actions up to the date mediation was sought. I have no evidence that counsel was retained up to that point. I have no evidence before me that Liberty Mutual approached this case with a closed mind or other than in accordance with its statutory and contractual obligations to fairly adjust each claim. Indeed, in the correspondence from Crawford to counsel for the Applicant, the writer repeatedly indicates that Liberty Mutual is investigating the claim and that its decision is still pending. As set out in Waugh and followed in McCullough, the possible existence of a dual purpose for a party's actions, one being the anticipation of possible litigation, is insufficient to meet the dominant purpose test. Nor do the words "without prejudice," by themselves, magically cloak all that follows with privilege.

(b) Adjusters' notes, as a class of document, are of similar import to clinical notes and records and are prima facie relevant. Such notes come into existence solely as a result of the accident in question. In this particular case, I find such documentation not merely possibly relevant, but likely relevant to both the special award claim and to the entitlement claims. In issue in this case is whether the Applicant sustained an impairment as a result of the accident. The Insurer relies, in part, on what it says is late notice of this claim, which impacts on the question of causation. What information the Insurer had prior to mediation is pertinent to these questions as well as to whether there was an unreasonable withholding or delay in the payment of benefits.

(c) This Commission has a streamlined procedure. As stated by the Director's Delegate in Puljic, "the Practice Code establishes simple rules designed to ensure a fair, efficient process." There are no affidavits of documents or examinations for discovery. There is no set process to fine-tune the precise measure of relevance of each document within the insurer's file. Hence, there is even more reason to avoid what was termed in McCullough, "a cat and mouse exercise," in endeavouring at the pre-hearing stage to fairly determine what is truly relevant in the Insurer's file. Nor does it advance this streamlined process to introduce court discovery procedures into a system which is meant to be accessible, fast and cost efficient. Section 32 of the present Practice Code requires parties to conduct their document exchange prior to the pre-hearing discussion, disputes to be dealt with at the pre-hearing discussion assigned to the parties. I find it difficult to see the advantage of introducing into this alternative procedure to the courts, a multi-stepped pre-hearing process, accompanied by variations on affidavits of documents, to determine whether notes already in the possession, control or power of the insurer, should be produced.

(d) I find a broader stroke approach is appropriate. In the absence of the insurer establishing, at the initial pre-hearing discussion itself, privilege or in the alternative factors (for example, such as Guerriero's "clear irrelevance" or the considerations as set out above in Al-Obaidi) which outweigh the possible relevance of specific notes, a generally applicable dividing line approach is appropriate. That dividing line, ordinarily at the Commission, has been the date of application for mediation. This would logically follow the date benefits were terminated or denied, which presumably involved a reasoned consideration by the insurer as to why benefits should not be paid. As well, upon mediation being accessed, a dispute is no longer hypothetical. This point in time, therefore, seems to me to be an appropriate prima facie dividing line between producible and non-producible insurer documentation, subject to submissions by either side as to why the production period or scope in a particular case should be narrowed or broadened. In this case, it was the period requested by the Applicant. I am not persuaded by the Insurer that there should be any variance.

(e) Relevance, especially of an important class of documents, should not be determined by one party. As a purely hypothetical example, is an insurer to decide whether possible adjusting references to "red flags" (such as the applicant's sex, age, nationality or some other characteristic) are relevant to the applicant's general medical condition or to entitlement to a specific benefit, and hence producible? This Commission does not allow applicants to pick and choose which of their family doctor's clinical notes they find relevant to the issues in dispute. Even-handedness would dictate against allowing insurers that privilege regarding their notes and records.

(f) There has been an evolving change in the environment at the Commission regarding production of the Insurer's file. Director Sachs, in Vo and Maplex General Insurance Company and Insurance Bureau of Canada (OIC P-002777, December 12, 1997) stated that "cases may be distinguishable because of their factual basis or a new interpretive argument not previously made or change in the environment in which the Act or Schedule operates." Leitgeb set aside entirely the production of any part of the adjusters' notes. Candido, however, allowed production, but limited to those documents (apparently as determined by the insurer) relevant to the exact issues in dispute. Link and M.S. expanded the scope of production to those documents relating to the applicant's general medical condition as well as the specific benefits in dispute. Al-Obaidi allowed production of the insurer's notes for a relatively restricted period, but in their entirety for that period. Zanelli put the onus on the insurer to establish that particular documents up to the date of mediation, were privileged or "clearly not relevant." In Guerriero, the Director's Delegate, finding that the documents might be relevant, upheld the pre-hearing arbitrator's production order of all documents in the insurer's file up to the date counsel was retained by the insurer, the insurer failing to provide him with specific examples of documents that were clearly irrelevant or privileged.

(g) This evolving change is consistent with the present trend in the courts. The latter have concurrent jurisdiction with this tribunal in the area of no-fault benefits disputes. The court cases noted above deal with punitive damages sought on the basis of bad faith claims. I agreed in Murray with Senior Arbitrator Rotter that the criteria necessary to establish punitive damages went considerably beyond what was necessary to be proven regarding a special award. However, I find, as stated in Berguson, the method of proof is similar. Thus, I find the courts reasoning applicable.

(h) The broad stroke approach in this production issue adheres to the spirit and intent of the Dispute Resolution Practice Code. Rule 1 of the Code states that the "Rules will be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute." Rule 1.2 states that "[w]here something is not specifically provided for in these Rules, the practice may be decided by referring to similar Rules in the Code." The most similar situation to this production issue is that of clinical notes and records. Practice Note 4 provides a general guideline of production from one year leading up to the accident. As stated in Al-Obaidi, for any longer or more limited period (or narrower or broader scope) the requesting party "will be expected to provide some basis for the request."

I decline to order production of the files of either counsel. The notes of counsel are to be distinguished from those of their principals. Without even dealing with the question of privilege, I am not persuaded that a basis for such a broadened request has been established. I find the Insurer's request for "all of the applicant's notes and records" to be too broad and ambiguous.

Reserves

The Applicant submits that disclosure of the Insurer's reserves is important in determining the manner in which the claim has been adjusted.

The Insurer responds that "reserves are statutorily required and may include factors which are not relevant to the true assessment of the claim."

In Samoila, Brockenshire J. cited the decision of Whiten v. Pilot Insurance Co., 1999 CanLII 3051 (ON CA), [1999] O.J. No. 237, Ont. C.A. at paragraph 67, where Finlayson J.A. for the majority quoted with approval Mr. Justice Blackmun of the United States Supreme Court who listed factors to be considered in evaluating a punitive damage award for bad faith. The list included the profitability to the defendant of the wrongful conduct and the desirability of removing that profit as well as the financial position of the defendant. Brockenshire J. considered the reserve numbers relevant in considering a possible punitive damage award.

I find Mr. Justice Blackmun's comments pertinent to the determination of the quantum of a special award. Therefore, I also find that information about reserves potentially relevant to the question of the quantum of a special award. In addition, it may be that reserve information may be intertwined with other information on the file, which may be relevant.

I would generally approach reserves as part of the overall insurer's file. It may be that in certain cases, factors mentioned by the Director's Delegate in Al-Obaidi may outweigh factors favouring production of reserve information. As noted, however, by the Applicant in her Reply, the Insurer did not provide examples of any such "factors" particular to this case.

Up to the date of mediation, it is for the insurer to establish privilege, sensitivity particular to the claim, or some other reason to exclude production of the reserve information.

The Insurer has not done so in this case.

Accordingly, I decline to exclude reserve information from my production order. The hearing arbitrator, of course, has sole discretion as to what he or she may allow into evidence at the arbitration hearing.

Manuals

The Applicant seeks production of "any manual or manuals in the possession, power or control of Liberty Mutual instructing its adjusters on how to handle the claim." Ms. Campeau submits that:

"[i]n order to fully appreciate the manner in which Cheryl's claim has been adjusted by Liberty Mutual, it is important to be able to compare the actual handling of the claim as disclosed by the accident benefits file and the adjusters' notes" with any such manuals.

The Applicant relies on the court decisions of McCullough and Samoila. In the former, Stinson J. held that the manuals were clearly relevant to the allegations in the Statement of Claim that the defendant insurer had created guidelines and directives that breached its duty of good faith to the defendant. In the latter, Brockenshire J. ordered the defendant insurer to produce any separate manuals it might have pertaining to how to handle potentially litigious claims, "as factoring in the state of mind of the insurer in dealing with its insured."

The Insurer submits that no foundation has been established or even suggested that this documentation was relevant in any way to the issues in dispute in this arbitration.

Arbitrators have ordered production of policy manuals or similar documentation that deal with discrete issues such as section 24 cost of examinations (for example, Scott and Zurich Insurance Company, FSCO A00-000666, November 1, 2000 and in Zanelli) or treatment plans and arrangements for medical/rehabilitation DACs (for example, in Xiao).

I was not advised of any arbitration decisions that allowed the broad production requested by Ms. Campeau, a request that would appear to extend to any manuals dealing with weekly benefits, medical/rehabilitation benefits and the various other claims being made in this proceeding.

I disagree with the Applicant's assertion in her Reply that "the issue at hand is Liberty Mutual's handling of the claim." That is not the issue before the hearing arbitrator. The claim for a special award is restricted to whether this Insurer has unreasonably delayed or withheld benefits. Unlike the specific adjusters notes in this file, I am not persuaded that a prima facie case of relevance has been established for manuals which might apply to this particular case as opposed to any other no-fault insurance claim.

In my pre-hearing letter in Alexander and Zurich Insurance Company (FSCO A00-000535, October 30, 2000), I stated that:

... even "the search for the truth" is not limitless. In his article, An Overview of the Rules of Civil Procedure of Ontario (1984-5), Advocates' Q. 257-330 at p. 260 (quoted in Sacrey v. Berdan, [1986] O.J. No. 2575 (Dist. Ct.) by Borins D.C.J.), Mr. Justice Morden stated that the general interpretation policy of the Rules of Civil Procedure set forth in Rule 1.04(1):

involves, at many places, compromises between, on the one hand, providing effective mechanisms for ascertaining the truth and, on the other, not making litigation too cumbersome or expensive.

I find that for general policy manuals to be ordered produced, the specific relevance to the particular claim and/or the reasonable necessity of the document should be established. The routine production of all possibly applicable policy manuals whenever a special award is sought, is simply too cumbersome and expensive. In this case, I am not satisfied that the broad request made is reasonably necessary or relevant. I decline to make the order sought.

Legal Opinions

The Applicant submits that causation is a central issue in this proceeding. She argues that it is important that the Insurer advise whether it has obtained a legal opinion on causation or evidently any other issue, and if so, produce such an opinion.

The Applicant relies on Samoila.

Liberty Mutual submits that any legal opinion would be protected by solicitor/client privilege. I have no evidence or submission that there was any involvement by counsel before mediation was sought in this matter. Therefore, if there are any such opinions, they would have been requested or rendered after mediation was sought.

In Samoila, Brockenshire J. found that the insurer had, at the examination for discovery of its claims person, placed its state of mind in issue, namely that the insurer would seek a legal opinion in making a determination whether to deny coverage on the basis of fraud. Brockenshire J., therefore, held that the insurer had waived any solicitor/client privilege and ordered production of any and all legal opinions obtained by the insurer relating to the denial of coverage.

Liberty Mutual submits there is no evidence of such waiver of solicitor/client privilege in this case. I agree. Likewise, I am not persuaded there is evidence of any such waiver of solicitor/client privilege regarding any legal opinions given to the Applicant by her counsel.

In any event, I am not persuaded by the Applicant that I should vary the production order regarding the Insurer's file (and her general request which restricted production to the date of the application for mediation) to include legal opinions given by the Insurer's counsel after mediation was accessed.

I, therefore, decline to order production of legal opinions given by either counsel.

4. Canada Pension Plan

Subsequent to the initial pre-hearing discussion in this matter, the Insurer sought production of the contents of any file that Canada Pension Plan might have pertaining to the Applicant.

The Applicant objected to this production request. She withdrew her submission that the time for such production request was at the pre-hearing discussion and the request was now too late. However, she submitted that the documentation requested was not relevant to this proceeding. She argued that the established case law was that the first-party insurer was not entitled to deduct Canada Pension Plan payments from weekly income replacement or caregiver benefits. She further submitted that, in any event, she was not in receipt of any Canada Pension Plan benefits.

The Insurer submits that upon receipt of the clinical notes and records of Dr. Carom, it noted a report to the Canada Pension Plan detailing the history and nature of the Applicant's difficulties. Liberty Mutual submits that these documents are relevant to the medical condition of the Applicant and specifically to the question of whether she sustained an impairment as a result of the accident. I agree.

Order:

I ordered that the records of the Canada Pension Plan be produced. The parties agreed that the Insurer would request that Canada Pension Plan simultaneously provide both parties with copies of their records.

March 12, 2001

Lawrence Blackman

Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 38

FSCO A00-000522

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

CHERYL CAMPEAU

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is further ordered that:

1. The Insurer shall produce any expert report created on or before December 19, 1999 or created after December 19, 1999 as the result of any requests, directions, investigations, demands or like actions instituted by the Insurer on or before December 19, 1999;

2. Both parties shall exchange their medical indexes, if they have not already done so. If there is any dispute as to the production of further medical documentation arising from the indexes, the OHIP summary, clinical notes or records previously exchanged, or any other source, this pre-hearing may be resumed, if necessary, by telephone conference before me;

3. If either party intends to file at the arbitration hearing an expert report or call an expert to give oral evidence, that party shall serve on the other side, at least ten days before the start of the arbitration hearing, copies of all reports of the expert, including any drafts, as well as copies of the notes and records of the expert, but excluding (only for non-IME or DAC medical practitioners) any communications with counsel;

4. Liberty Mutual shall produce to the Applicant copies of its complete accident benefits file pertaining to Ms. Campeau, up to December 19, 1999, including copies of all adjusters notes in connection with this matter in writing or maintained electronically and including those documents created after mediation but as the result of earlier requests, directions, investigations, demands or like actions instituted by Liberty Mutual.

5. The records of the Canada Pension Plan are to be produced.

March 12, 2001

Lawrence Blackman

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
2. 2For example, see Practice Note 4, Exchange of Documents.
3. 3Cappadocia v. Canadian General Insurance [1998] O.J. No. 5681, December 11, 1998.