Neutral Citation: 2002 ONFSCDRS 134

FSCO A01-000841

BETWEEN:

SUSAN P. DRIVER

Applicant (Respondent on Motion)

and

VICTOR GUARD

(Respondent on Motion)

and

TRADERS GENERAL INSURANCE CO./HB GROUP

Insurer (Moving Party)

DECISION ON A MOTION

Before:

Eban Bayefsky

Heard:

August 12, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

C. Gordon Ross for Ms. Driver

Alexander M. Voudouris for Traders General Insurance Co./HB Group

Mr. Guard did not appear and no one appeared on his behalf

The Applicant, Susan P. Driver, was injured in a motor vehicle accident on January 16, 1999. She applied for and received statutory accident benefits from Traders General Insurance Co./ HB Group ("Traders"), payable under the Schedule.¹ The Insurer terminated Ms. Driver's income replacement benefits on July 15, 2000. The Insurer also denied Ms. Driver's claim for certain medical and rehabilitation benefits. The parties were unable to resolve their disputes through mediation, and Ms. Driver applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Various issues were identified at the pre-hearing conference, to be adjudicated at a preliminary issue hearing and at the main arbitration. The parties resolved all of the issues identified for the preliminary issue hearing and some of the issues identified for the main arbitration. At the hearing of this motion, the parties advised that the only substantive issues outstanding were Ms. Driver's claims for her Vistasp Therapy treatment at HealthWinds - The Health and Wellness Spa (the "HealthWinds Spa") (totalling close to $100,000), relatively small claims for Tai-Chi treatment and housekeeping services, and a special award.

The issue in this motion is:

Is the Insurer entitled to conduct an examination for discovery of Ms. Driver and/or Mr. Victor Guard of the HealthWinds Spa?

The Insurer is not entitled to conduct an examination for discovery of either Ms. Driver or Mr. Guard.

Background

This motion concerns the Insurer's attempt to obtain information from Ms. Driver, Mr. Guard and the HealthWinds Spa concerning Mr. Guard's professional qualifications and the method, nature and medical benefit of Vistasp Therapy (the type of treatment Mr. Guard provided Ms. Driver at the HealthWinds Spa).

The Insurer maintained that it had no knowledge of the Vistasp method and that, in its view, the treatment was not reasonable and necessary, and was experimental in nature. Pursuant to section 14(3) of the Schedule, an insurer is "not liable to pay a medical benefit for goods or services that are experimental in nature." The Insurer maintained that, despite repeated requests, neither Ms. Driver nor Mr. Guard, nor the HealthWinds Spa, had provided information on the medical benefits or experimental nature of the Vistasp method. The Insurer indicated that it had unsuccessfully attempted to obtain independent information on these matters. The Insurer maintained that it would be unfair to require it to proceed to arbitration without providing it the opportunity to obtain sufficient information on the medical benefits and experimental nature of the Vistasp method. The Insurer maintained that the only way it could obtain the relevant information was through conducting an oral examination on oath of Ms. Driver or Mr. Guard prior to the hearing in this matter.

Ms. Driver maintained that the Insurer had sufficient information concerning the disputed treatment to proceed to the hearing, that the Insurer was not entitled to an oral discovery of either herself or Mr. Guard, and that it could obtain any outstanding information and challenge Ms. Driver's claims on cross-examination at the hearing. Mr. M. Buonaguro, of the law firm of Outerbridge, Miller, Sefton, solicitors for Ms. Driver, deposed that Ms. Driver had recently attended at three insurer examinations (with a neurologist, a psychiatrist and a physiatrist) and would be attending a further IE shortly with a registered massage therapist.

The Insurer's attempts to obtain information on the Vistasp Method

Prior to the pre-hearing conference, the Insurer wrote to the HealthWinds Spa on November 6, 2001 and requested information on the experimental nature and medical benefits of the Vistasp method. On November 12, 2001, Mr. Guard responded by providing a document entitled "The Vistasp Therapy Method" and a covering letter in which he stated as follows:

The Vistasp Therapy is quite different and unique compared with other "hands on" rehabilitative techniques. It has been very effective in the rehabilitation of motor vehicle accident victims and is prescribed by physiatrists, rheumatologists and general practitioners when other traditional therapies have proven ineffective.

Mr. Guard described the course of Ms. Driver's treatment. Ms. Driver's family doctor, Dr. S. Goldstein, had referred her for Vistasp treatment in May 1999. The document describing the Vistasp method is as follows:

The Vistasp Therapy Method was developed by Mr. Victor Guard. His studies spanned over a twelve year period in India, included a comprehensive analysis of the human body focusing on all the body's systems and their co-relationship. This depth of knowledge combined with the intricate practical skill of this "hands on" application are the tools which the Vistasp Therapy Method uses to treat the root of the patient's problem in order to rehabilitate and not merely provide symptomatic relief. In the last 22 years Mr. Guard has perfected this system of treatment which is a culmination of the best of each of these techniques and his own personal experience. He currently has a private practice in Toronto and is part of the team of The Chronic Pain Department at HealthWinds, The Health & Wellness Spa.

The Vistasp Therapy Method relies solely on physical manipulation of the body. The movements are very precise and are directed at the rehabilitation of the specific muscles. The attendant stimulation of the nerves results in maximizing the blood flow to the affected areas. The blood carries nutrition and oxygen to these areas of the body and thereby, optimizes the repair and rebuilding of the muscle tissue. The actual movements are quick and are always applied within the patient's tolerance of pain. The Vistasp Therapy is a more exacting technique than other "hands on" therapies including massage therapy. While the Vistasp Therapy Method clearly relieves presenting symptoms its main focus is to address the underlying cause(s) of the problem. This provides significant results over the long term.

Benefits of this treatment include:

reduction of pain
increased range of motion and flexibility
improved metabolic rate
improved digestion
improved elimination of fluids
improved circulation
reduced nervous tension
improved depth of breathing
overall sense of deep relaxation

Some of the problems/conditions which have been helped by this therapy method are:

migraine headaches
chronic fatigue syndrome
fibromyalgia
insomnia
head, neck and shoulder pain
limited mobility
repetitive strain injuries and back problems
anxiety and depression
stress-related disorders

The Vistasp Therapy Method is available in Full and Focused treatment sessions. The Full treatment takes approximately 3-6 hours, per session. Focused sessions of 30 minutes to one hour are offered to address specific problem areas.

A complimentary consultation is the first step to taking the Vistasp Therapy Method treatment. The consultation consists of an indepth discussion regarding your health and the condition(s) to be treated and a sample session of the Vistasp Therapy Method. Following the first treatment the therapist provides an analysis of the findings and creates a treatment plan.

In December 2001, the HealthWinds Spa provided the clinical notes and records pertaining to Ms. Driver's treatment. These contained records of Ms. Driver's symptoms and treatment at each session. They also contained several progress reports in which Ms. Driver's symptoms, progress and treatment proposals were described. Lastly, they contain the detailed accounts of the HealthWinds Spa for Ms. Driver's treatments between May 26, 1999 and June 15, 2001.

The pre-hearing conference in this matter was held on January 29, 2002 at the Commission before another Arbitrator. In the pre-hearing letter, dated January 29, 2002, the Arbitrator stated that the parties had partially agreed on the production of documents. The only production issue that could not be resolved concerned the Insurer's request for the names, addresses and telephone numbers of the clients and distributors Ms. Driver had dealt with through her company. The Arbitrator denied the Insurer's request.

Mr. J. Baum of the law firm, Danson, Recht & Freedman, solicitors for the Insurer, deposed that, subsequent to the pre-hearing conference in February 2002, he contacted both the College of Massage Therapists and the Ontario Massage Therapists Association regarding Mr. Guard and the Vistasp method, but that neither organization had any information on Mr. Guard or the Vistasp treatment.

In March 2002, the Insurer wrote Mr. Guard requesting an opportunity to discuss with him the Vistasp Therapy he had been providing Ms. Driver. The Insurer also requested a copy of Mr. Guard's credentials and information as to where the Insurer might be able to find more information about the Vistasp Therapy. Ms. Kailee Kline, the President of the HealthWinds Spa, responded, in part, as follows:

As you are aware, Mr. Ian Outerbridge represents the Plaintiff Ms. Driver and he informs us that he has already provided you with Mr. Guard's professional resume and information about the VISTASP therapy.

It appears that you have clearly rejected this form of therapy in this case and we therefore conclude that your purpose in seeking a discussion with Mr. Guard must necessarily be to discredit both him and the VISTASP therapy.

In the circumstances, we believe the wisest course for Mr. Guard at this time is to decline your invitation to discuss the matter and for him to simply attend and give his evidence when and if called upon to do so. We point out that Mr. Guard concurs with this response. Moreover, our legal counsel has pointed out to us that Ms. Driver is in a relationship with our company and our staff which entitles her to expect our utmost confidentiality; accordingly, we would not be in a position in any event to make Mr. Guard available to you without her express prior written consent.

Mr. Baum deposed that, in March 2002, he conducted an extensive internet search on the Vistasp Therapy Method, and was only able to obtain the information contained in the HealthWinds Spa website, as follows:

The Vistasp Therapy Method

A very focused body therapy treatment intended for relief from acute and chronic pain. Precise movements are applied to specific nerve endings related to the problem areas. This treatment stimulates circulation, improves joint mobility, muscular flexibility and decreases pain. Highly effective in the treatment of conditions such as migraine headaches, whiplash and fibromyalgia.

The webpage contains two photographs, one beside the description of the Vistasp method, showing a therapist applying pressure with his hands to the back of a patient's neck and to the patient's forehead. The webpage also lists the price of Vistasp treatments of varying lengths of time.

In April 2002, the Insurer wrote Ms. Kline to indicate that her previous correspondence had not been helpful and to further request an opportunity to discuss the Vistasp method with Mr. Guard or a "knowledgeable representative of your institution." Ms. Kline apparently did not respond to this letter.

Mr. Baum deposed that he believed that only an examination for discovery of Ms. Driver, Victor Guard or a representative of the HealthWinds Spa knowledgeable in the Vistasp Therapy Method would provide the Insurer with an opportunity to obtain information on the Vistasp method.

Findings

The Insurer submitted that I had the authority to order Ms. Driver and Mr. Guard to attend an examination for discovery, pursuant to the Insurance Act, the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended (the "SPPA"), the Dispute Resolution Practice Code, Fourth Edition, May 31, 2001 (the "Practice Code”) and the common law. Ms. Driver submitted that the Insurer's request for an examination on oath prior to the hearing was not something either contemplated by the relevant legal guidelines or required in the particular circumstances of this case.

The Insurer's request raises significant questions about the breadth of the procedural powers accorded arbitrators under the SPPA, and the interaction of the SPPA with the Insurance Act, the Practice Code and the common law. On the one hand, arbitrators have an inherent jurisdiction to control their own process (at common law and as enunciated in section 25.0.1 of the SPPA), they have broad authority to tailor their procedural rulings to the particular circumstances of the case (at common law and under section 2 of the SPPA and, for example, Rule 1.1 of the Practice Code) and they have broad authority to summon witnesses to give evidence on oath (under section 22(1) of the Insurance Act). On the other hand, the specific provision of the SPPA governing disclosure (section 5.4(1)) seems to require tribunals to adopt specific rules in order to exercise the powers enumerated under that section. The Practice Code does not explicitly address the question of examinations for discovery, and the SPPA only speaks of the oral examination of a "party" (which Mr. Guard is not). The SPPA also requires that a tribunal's rules be consistent with the SPPA and that, in the event of a conflict, and subject to an express exemption clause, the provisions of the SPPA prevail over a tribunal's enabling statute and procedural rules. The essential issue is whether an arbitrator has the general authority to order an examination for discovery by virtue of, or despite, the specific provisions of the SPPA.

While these are important questions concerning the extent of an arbitrator's procedural authority, I find that it is not necessary to decide them. Even if I had the jurisdiction to order a person to undergo an examination for discovery, I find that this would not be an appropriate case in which to exercise that authority. I reach this conclusion for the following reasons.

Mr. Guard and/or the HealthWinds Spa has already provided the Insurer with significant disclosure. The Insurer has been provided with Mr. Guard's complete clinical notes and records, including numerous progress reports and detailed accounts for the treatment. The Insurer has also been provided a brief description of Mr. Guard's background, the nature and medical benefits of the Vistasp method, and the duration and cost of treatment sessions. The Insurer has also obtained information on these matters through the HealthWinds Spa website. Ms. Driver has made herself available for a number of insurer examinations. While the information obtained by the Insurer leaves some questions as to the nature of the treatment and the extent of Mr. Guard's qualifications, I do not find that there has been such a dearth of disclosure, that the Insurer should be allowed to take the unique and significant procedural step of conducting an examination of discovery of either Ms. Driver or Mr. Guard.

The Insurer was unable to provide me with any case law suggesting that administrative tribunals have the specific authority to order, or have, in fact, ordered examinations for discovery in the course of their proceedings. The closest the Insurer could come is the arbitration case of Osbourne and York Fire & Casualty Insurance Company and Allstate Insurance Company of Canada (OIC A-009110 & OIC A-009111, December 8, 1997),² but in that case, the Arbitrator simply admitted the transcripts of examinations on oath which the applicant and her alleged spouse had volunteered to attend. The Arbitrator had not ordered the examinations and made no comments as to her jurisdiction to do so.

In my view, this procedure is at the far end of the spectrum of disclosure. The Insurer made a general request to examine Ms. Driver and Mr. Guard on oath. It did not suggest that the examination would be limited or structured in any way (other than, presumably, by the normal rules that would apply in the context of civil proceedings). There is no indication that the examination would be restricted to the discrete issues of Mr. Guard's professional status and responsibilities, the precise physical manipulations employed by a Vistasp therapist, the existence of studies on the technique and, relatedly, the known risks and benefits of the treatment (areas the Insurer indicated it would like to explore). I have no evidence that Ms. Driver could provide this information or that the Insurer's questions would not stray into more general areas concerning the reasonableness and necessity of the treatment, areas which, in my view, are more properly reserved to the examination of witnesses at the main hearing. Examination for discovery, of course, is not used simply for the gathering of information, but can also be used for the purpose of cross-examination at the main hearing. The Insurer only briefly alluded to the areas it wished to explore, and made no submissions as to what questions it would ask or how it proposed to use the information it solicited. In these circumstances, I am not prepared to grant the Insurer's very general request for what is a significant procedural step.

Even if I had the general authority to order an examination for discovery, this step would have to be appropriate in the context of the Commission's particular administrative process, as well as in the particular circumstances of this case. The Commission's dispute resolution process is predicated on broad documentary disclosure between the parties. While, as noted above, the Practice Code allows for a liberal approach to procedural issues, none of the provisions bearing on disclosure speak of the pre-hearing oral discovery of a person. Rule 41.4 of the Practice Code (which restates an arbitrator's power under section 22(1) of the Insurance Act and section 12(1) of the SPPA) to summon a witness to give evidence on oath) is the last in a series of provisions dealing with witnesses to be called at a hearing; the Rules do not speak to the pre-hearing discovery of a person. Rules 67.4 to 67.7 (dealing with production orders against third parties) deal with documentary disclosure, not the oral examination of a person. In my view, therefore, to order an examination for discovery of a person would be a significant departure from the essential premise of the Commission's approach to pre-hearing disclosure.

The Insurer submitted that, pursuant to the rules of natural justice, it must be given adequate disclosure prior to the hearing in order to avoid a "trial by ambush." The Insurer submitted that, due to the unique circumstances of this case, granting its request for an examination for discovery would not open the floodgates to similar orders in other cases. The Insurer maintained that conducting such an examination would not delay the arbitration process or increase Ms. Driver's costs since the Insurer undertook to pay all reasonable expenses associated with the examination.

While the Insurer is entitled to adequate pre-hearing disclosure, I am not satisfied that the circumstances of this case are so unique that granting its request would not compromise the arbitration process. The Insurer has asked Mr. Guard and/or the HealthWinds Spa three times for information. Mr. Guard and the Spa have provided significant disclosure, but not everything the Insurer requested. Ms. Driver has made herself available for a number of insurer examinations. On the evidence before me, the Insurer has not asked Ms. Driver for the information it sought from Mr. Guard and the HealthWinds Spa, nor has the Insurer sought any orders from the Commission to compel Ms. Driver, Mr. Guard or the Spa to provide further documentary disclosure. The Insurer has proceeded directly to requesting the oral discovery of Ms. Driver and Mr. Guard. In these circumstances, I am unable to conclude that the Insurer's rights to natural justice will be denied or that it will be subjected to a "trial by ambush." I find that the Insurer has been provided sufficient disclosure to conduct effective cross-examination at the hearing. The Insurer's request for an oral discovery is premature and ill-founded.

Section 5.4(1) of the SPPA envisages a range of disclosure, from the exchange of documents, to the provision of particulars, to the exchange of witness statements and expert reports, to the written examination of a party, to the oral examination of a party, to any other form of disclosure. Rule 42 of the Practice Code requires a party who intends to call an expert witness to file a document setting out, in part, the expert's qualifications and the substance of the facts and opinions the expert will present. Rule 67 sets out a process through which parties can obtain documentary disclosure from third parties (and in which an arbitrator must find that a party has first made all reasonable efforts to obtain the documents in question). The Insurer has neither sought nor obtained any orders for the lesser forms of disclosure contemplated by either the SPPA or the Practice Code. In my view, given the general objective of the Practice Code to facilitate documentary disclosure, and the range of options open to the Insurer to obtain a better understanding of the Vistasp method, I find that it is premature to consider the Insurer's extraordinary procedural request.

I do not agree that the floodgates will not open if I grant the Insurer's request. Given the Insurer's limited efforts to obtain broader disclosure, there is nothing to prevent both applicants and insurers in the most routine cases from seeking oral discoveries, simply on the basis that either a person or an organization has refused to provide all of the desired information. I find that granting the Insurer's request would radically alter the nature of the production process at the Commission, essentially eliminating a party's need to avail itself of the various forms of documentary disclosure available under the Practice Code.

I find that the Insurer's unstructured request to examine Ms. Driver and Mr. Guard could lead to a myriad of procedural objections and delays (particularly in the absence of any guidelines under the Practice Code for the conduct of such examinations, as exist under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended; Rule 31 on Examinations for Discovery). This would significantly hinder what is intended to be an expeditious and cost-effective pre-hearing process (as set out in Rule 1.1 of the Practice Code and section 2 of the SPPA). I also find that the Insurer could use the discovery to challenge the merits of Ms. Driver's case, as opposed to simply using it to gather more information on the nature and benefits of the Vistasp method (which the Insurer has stated is its goal). While parties can certainly bolster their case through obtaining disclosure, in the circumstances of this case, I find that the Insurer's proposal would be an inappropriate use of the pre-hearing production process.

Finally, the Insurer submitted that an abuse of the Commission's process would occur if it were precluded from conducting an examination for discovery of Ms. Driver or Mr. Guard. Section 23(1) of the SPPA and Rule 65.7 of the Practice Code state that an arbitrator may make such orders as he or she considers proper to prevent an abuse of process. Ms. Driver and Mr. Guard have provided considerable disclosure. Mr. Guard and the HealthWinds Spa have legitimately expressed concern about the nature or scope of any "discussion" between the Insurer and Mr. Guard. The Insurer has not pursued any of the more conventional avenues available to it under the SPPA or the Practice Code to obtain further information on the Vistasp method. In these circumstances, I do not find that denying the Insurer's request for an oral examination before the hearing would result in an abuse of the Commission's process.

I, therefore, find that the Insurer is not entitled to conduct an examination for discovery of Ms. Driver or Mr. Guard.

EXPENSES:

If required, the parties may now make submissions on the issue of expenses. Alternatively, the parties can address this matter in the context of the main arbitration hearing.

August 29, 2002

Eban Bayefsky Arbitrator

Date