Christopher J. Russell v. Lombard General Insurance Company of Canada, 2003 ONFSCDRS 15

Financial Services Commission of Ontario

Neutral Citation: 2003 ONFSCDRS 15

FSCO A02-001057

Between:

Christopher J. Russell Applicant

and

Lombard General Insurance Company of Canada Insurer

Pre-Hearing Decision

Before: Catherine Skinner

Heard: By telephone conference call on January 23, 2003. Written submissions were received on December 11, 2002.

Appearances:

Wendy Moore Johns for Mr. Russell Tracy L. Brooks for Lombard General Insurance Company of Canada

Issues:

The Applicant, Christopher J. Russell, was injured in a motor vehicle accident on December 18, 2000. He applied for statutory accident benefits from Lombard General Insurance Company of Canada ("Lombard"), payable under the Schedule.¹ Lombard denied accident benefits on the basis that Mr. Russell has not complied with sections 32(1) and 32(3) of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Russell applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was held on November 25, 2002. The parties were given an opportunity to file additional written submissions in connection with Lombard's unresolved production requests. Written submissions were received on December 11, 2002. A resumption of the pre-hearing discussion took place on January 23, 2003 by telephone conference to resolve the production dispute.

The issue is:

1. Should Mr. Russell be ordered to produce correspondence between himself and his lawyer, and other portions of his lawyer's file, outlined at numbers 1 through 6 on page 4 of Lombard's written submission of December 11, 2002?

Result:

1Lombard's motion for production of the documents outlined at numbers 1 through 6 on page 4 of its written submission is denied because the documents sought are subject to solicitor-client privilege.

Background:

Mr. Russell was involved in an incident with a bus on December 18, 2000. Mr. Russell turned 18 approximately two months before the accident. Although he was not a minor at the time of the accident, his mother, Karen Russell, has been involved in advancing this claim and was an active participant at the pre-hearing discussion.

A preliminary issue hearing is scheduled in this case for a determination of the following question: Is Mr. Russell precluded from proceeding to arbitration in this matter by operation of sections 50(a) and sections 31 and 32 of the Schedule? More specifically, the issues for determination at the preliminary issue hearing are: whether Mr. Russell notified Lombard of his intention to claim a benefit within 30 days after the circumstances arose that gave rise to entitlement to the benefit; whether Mr. Russell submitted an application for the benefit to Lombard within 30 days after receiving the application forms; and, if not, whether Mr. Russell has a reasonable explanation for not doing so, within the meaning of subsection 31(1) of the Schedule.

During the pre-hearing conference of November 25, 2002, Ms. Brooks requested production of various documents from Ms. Johns' file. Ms. Johns resisted production of these documents, claiming that they were subject to solicitor-client privilege.

The Production Request

In her written submission of December 11, 2002, Ms. Brooks identifies her production requests as follows:

1. Copies of all authorization/directions/retainer agreements signed by the Applicant, or his mother on his behalf, and provided to the Applicant for his signature by Thomson Rogers.

2Details/summary of all oral and written communications between Thomson Rogers and the Applicant, or the Applicant's mother on his behalf, regarding the Applicant's entitlement to accident benefits.

3Details/summary of all oral and written communications between Thomson Rogers and the Applicant, or the Applicant's mother on his behalf, regarding the Applicant's receipt of the Application package from Lombard.

4Advice as to when the Applicant informed Thomson Rogers that it had received the Application package from Lombard.

5Details/summary of all oral and written communications between Thomson Rogers and the Applicant, or the Applicant's mother on his behalf, regarding any directions or instructions given by the Applicant to Thomson Rogers regarding the completion and submission of the Application package.

6Details/summary of all oral and written communications between Thomson Rogers and the Applicant, or the Applicant's mother on his behalf, regarding any directions or instructions given by Thomson Rogers to the Applicant regarding the completion and submission of the Application package.

7Clinical notes and records of the family physician of the Applicant and the Applicant's mother.

Submissions

Ms. Johns agrees to produce the documents identified at #7. She resists production of the documents identified at #1 through #6. As all of items #1 through #6 constitute confidential communications between herself and Mr. Russell or his mother, she states that these are subject to solicitor-client privilege and cannot be compelled.

Ms. Brooks accepts that the documents requested would ordinarily be protected by solicitor-client privilege. She submits, however, that Mr. Russell or his lawyer, Ms. Johns, waived privilege over these documents by implication. She relies on Ms. Johns' statement during the pre-hearing conference that she had difficulty obtaining instructions from Mr. Russell or his mother during the period of time prior to the application for accident benefits being filed. Ms. Brooks submits that Mr. Russell and Ms. Johns have placed their respective states of mind at issue, and have thereby waived solicitor-client privilege over any communications between them during that period.

Ms. Brooks relies on the Superior Court of Justice decision in Samoila v. Prudential of America General Insurance Co² In that case, Justice Brokenshire found that solicitor-client privilege had been waived over legal opinions provided to the insurer in the context of a bad faith claim. The Court in that case found that the substance of any legal opinion sought before denying coverage was directly relevant to the issue of bad faith. The Court found that solicitor-client privilege had been waived over any legal opinions offered regarding the entitlement to benefits.

Analysis

I do not agree with Ms. Brooks that the reasoning in Samoila, supra, applies to the case before me. Justice Brokenshire relied on the following definition of waiver by implication, set out in Bank Leu Ag v. Gaming Lottery Corp.³

When a party places its state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice.

In Samoila, the Court found that the insurer's state of mind concerning the adjustment of the claim was in issue and that the insured person was entitled to explore the legal advice that had helped to form that state of mind.

I do not find that Ms. Johns' statement had the effect of putting either Mr. Russell's or her own state of mind at issue. I interpret Ms. Johns' statement as being part of a more general submission concerning Mr. Russell's conduct and that of his mother during the period following the accident. The focus of the inquiry at the preliminary issue hearing is likely to be Mr. Russell's conduct. The circumstances resulting in Ms. Johns' difficulty obtaining instructions will be examined, rather than the absence of instructions themselves. This is not a case where Mr. Russell is claiming that he provided instructions to his lawyer that were not followed. Nor is he claiming that he received erroneous legal advice. The existence or substance of legal advice is not being tendered in this case as a reasonable explanation for non compliance within section 32.

Ms. Brooks also referred me to the arbitration decision in Kuronen and Allstate Insurance Company of Canada.⁴ Based on this decision, she submits that the communications between a client and his or her solicitor are relevant to the issue of whether there is a reasonable explanation for not meeting limitation periods set out in the legislation.

I find that neither the arbitration decision nor the appeal decision in Kuronen⁵ supports Ms. Brooks' position. The arbitrator in Kuronen focused on the circumstances of the applicant himself in determining whether there was a reasonable explanation for failing to comply with a statutory time limit. Although the arbitrator mentioned the relations between the applicant and his counsel in the decision, it is clear that his focus remains the conduct and circumstances of the applicant. Director's Delegate Draper approved this approach in the following terms:

...I am not persuaded that the involvement of a lawyer ends the inquiry...there was also evidence that Mr. Kuronen's personal problems affected his relationship with his lawyer...In my view, the arbitrator properly focussed on Mr. Kuronen and whether he had a reasonable excuse for his delay in claiming accident benefits.

The communications between Mr. Russell or his mother and Ms. Johns prior to filing the application for benefits are not being advanced as an explanation for failing to comply with the statutory time limits.

I find that neither Mr. Russell nor Ms. Johns has waived solicitor-client privilege over the documents enumerated at #1 through #6 above. Ms. Brooks' motion for production of these documents is denied as the documents are subject to solicitor-client privilege.

Expenses:

The parties made no submissions respecting expenses. I leave the question of expenses to the arbitrator hearing the preliminary issue.

February 6, 2003

Catherine Skinner Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 15

FSCO A02-001057

Financial Services Commission of Ontario

Between:

Christopher J. Russell Applicant

and

Lombard General Insurance Company of Canada Insurer

Arbitration Order

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

1. Lombard's motion for production is denied.

February 6, 2003

Catherine Skinner Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2(2000), 2000 CanLII 22690 (ON SC), 50 O.R. (3d) 65
3. 3[1999] O.J.No.3949 (S.C.J.)
4. 4(OIC A-951897, December 29, 1995)
5. 5(OIC P96-000026, January 31, 1997)