Neutral Citation: 2003 ONFSCDRS 169

FSCO A01-001521

BETWEEN:

MIODRAG KOVAC

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR PRODUCTION

Before:

Anne Sone

Heard:

August 8, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on August 12, 2003.

Additional submissions were received on November 25, 2003, by teleconference call

Appearances:

Karen Kwan Anderson and Allan Chapnik, by telephone conference call, for Mr. Kovac

Seth Kornblum, in person, and Darrell P. March, by telephone conference call, for Wawanesa Mutual Insurance Company

The Applicant, Miodrag Kovac, was injured in a motor vehicle accident on December 4, 1999. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Kovac 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 was held in this matter at the Commission on July 15, 2002. I subsequently sent a letter dated July 18, 2002 to both parties. In it, I stated that "Mr. Kovac has not provided the documents that Wawanesa has requested to date with respect to his employment and medical circumstances. Pace Law Firm on behalf of Mr. Kovac does not object to providing such documents and expects to do so within 60 days."

Mr. Kovac's counsel sent letters to Mr. Kovac's physicians asking for clinical notes and records with respect to Mr. Kovac (including handwritten notes prepared during consultation). These letters included authorizations signed by Mr. Kovac. His counsel also sent letters and authorizations to Mr. Kovac's two employers requesting employment records respecting Mr. Kovac. Some of these third parties have failed to provide the records which have been requested.

As a result, Wawanesa has brought a motion for production of these records from the third parties involved.

The issues on the motion are:

Is Wawanesa entitled to an order compelling the non-party, Dr. Gerhardt Ernest Fischer, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date?
Is Wawanesa entitled to an order compelling the non-party, Dr. Otto Veidlinger, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date?
Is Wawanesa entitled to an order compelling the non-party, Dr. Andrew Shaul, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date?
Is Wawanesa entitled to an order compelling the non-party, Dr. Thomas Van, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date?
Is Wawanesa entitled to an order compelling the non-party, YBS Auto Service, to produce to Wawanesa, employment records in its possession with respect to Mr. Kovac?

Wawanesa is entitled to an order compelling the non-party, Dr. Gerhardt Ernest Fischer, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date, within 30 days of the date of the order.
Wawanesa is entitled to an order compelling the non-party, Dr. Otto Veidlinger, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date, within 30 days of the date of the order.
Wawanesa is entitled to an order compelling the non-party, Dr. Andrew Shaul, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date, within 30 days of the date of the order.
Wawanesa is entitled to an order compelling the non-party, Dr. Thomas Van, to produce to Wawanesa, his complete chart with respect to Mr. Kovac from 1997 to date, within 30 days of the date of the order.
Wawanesa is not entitled to an order compelling the non-party, YBS Auto Service, to produce to Wawanesa, employment records in its possession with respect to Mr. Kovac.

Background:

On December 7, 1999, Mr. Kovac was driving when another vehicle exited a side street and collided into the passenger side of his vehicle. His vehicle was written off. His left knee struck his vehicle's doorframe. He was taken by ambulance to St. Michael's Hospital. He sustained injuries to his neck and back, and has also suffered from headaches, insomnia and anxiety. At the time of the accident, Mr. Kovac was 47 years old, and employed as a full-time transport truck driver on long hauls throughout North America. He worked part time as a car salesman at YBS Auto Sales ("YBS"), where he began working in August 1999. He is claiming an income replacement benefit from Wawanesa from December 11, 1999 to date, and ongoing.

Wawanesa is seeking production of the clinical notes and records of various doctors who treated or saw Mr. Kovac. In addition, it is seeking production of the complete employment file for Mr. Kovac from YBS. Wawanesa agrees to pay for these productions, and will provide copies to Mr. Kovac, with Mr. Kovac paying for reasonable photocopying expenses. Wawanesa will provide copies of productions received within 30 days of receipt of the records.

Mr. Kovac agrees that these records are relevant and does not object to producing them. Indeed, his counsel has sent numerous letters and authorizations seeking these productions in order to comply with undertakings.

Mr. Kovac also undertakes to provide all the business records of Kovac Transport. It may also be under the name, 1165006 Ontario Limited, operating as Kovac Transport. If Mr. Kovac is out of the country, he will provide the business records of Kovac Transport within 30 days of his return to Toronto.

Dispute Resolution Practice Code

Pursuant to subsection 67.7 of the Dispute Resolution Practice Code, Fourth Edition, May 31, 2001 (the "Code"), before making an order for the production of documents against a third party, I must be satisfied that:

(a) the parties have made reasonable efforts to obtain the documents sought;

(b) the document sought is in the possession, control or power of the third party;

(d) the document is reasonably required to ensure a just and fair hearing.

I will go through the documents that Wawanesa is seeking in order to consider these requirements.

Dr. Gerhardt Ernest Fischer, general surgeon

On August 19, 2002, Mr. Kovac's counsel, the Pace Law Firm, sent a letter with an attached authorization to Dr. Gerhardt Ernest Fischer ("an initial request"), which stated as follows:

We are the solicitors who represent Mr. Kovac with respect to matters arising from his involvement in a motor vehicle accident on the above-noted date.

Kindly provide us with copies of your all [sic] clinical notes and records on our client (including your hand-written notes prepared during consultation).

A Direction executed by our client authorizing you to release these documents to us is enclosed.

We would be pleased to honour your account for this service.

In response, Dr. Fischer provided a note indicating that he never saw Mr. Kovac regarding the motor vehicle accident. At the request of Beard Winter, the counsel for Wawanesa, the Pace Law Firm, sent a follow up letter dated February 20, 2003, which explained that:

Defence counsel has requested that we provide a complete copy of your clinical notes and records relating to our client, from 1997 to present, including all hand-written notes, correspondence, etc.

Dr. Fischer did not comply with this request.

Subsequently, Beard Winter served a Motion Record upon Dr. Fischer seeking his complete chart from 1997 to date. There is an affidavit of service indicating that it was served on June 9, 2003. Despite this, he chose not to respond.

Dr. Otto Veidlinger, neurologist

The Pace Law firm sent an initial request for copies of all the clinical notes and records to Dr. Veidlinger, dated August 19, 2002. It sent a follow-up request dated September 4, 2002, and a further follow-up request, dated May 13, 2003, referring to the two previous letters.

As with Dr. Fischer, Beard Winter subsequently served a Motion Record upon Dr. Veidlinger seeking his complete chart from 1997 to date. There is an affidavit of service indicating that it was served on June 9, 2003. Despite this, he chose not to respond.

Dr. Andrew Shaul, psychologist, and his Ph.D. student, Ms. Jacqueline Brunshaw

The Pace Law Firm sent an initial request dated September 9, 2002, for copies of all the clinical notes and records, including the raw test data, on Mr. Kovac, to Ms. Jacqueline Brunshaw. Subsequently, it sent a follow-up letter dated May 13, 2003 to Dr. Shaul, asking to confirm that the records provided were his complete records. There was no response to this letter.

As with Dr. Fischer and Dr. Veidlinger, Beard Winter subsequently served a Motion Record upon Dr. Shaul seeking his complete chart from 1997 to date. There is an affidavit of service indicating that it was served on June 9, 2003. Despite this, he chose not to respond.

Dr. Thomas Van, general practitioner

The Pace Law Firm sent an initial request for copies of all the clinical notes and records on Mr. Kovac, to Dr. Van, dated May 13, 2003. He did not respond.

As with the other doctors, Beard Winter subsequently served a Motion Record upon Dr. Van seeking his complete chart from 1997 to date. There is an affidavit of service indicating that it was served on June 9, 2003. Despite this, he chose not to respond.

Conclusion regarding Treating Doctors

Based on the facts I have outlined above, I find that the parties have made reasonable efforts to obtain the documents sought from Dr. Fischer, Dr. Veidlinger, Dr. Shaul and Dr. Van, and that the documents sought are in the possession, control or power of these doctors. Since all of these doctors have received one or more requests, and been served with a Motion Record, I find that Dr. Fischer, Dr. Veidlinger, Dr. Shaul and Dr. Van have had a reasonable opportunity to respond. They have failed to do so.

Mr. Kovac does not object to producing these documents. His counsel has been actively engaged in trying to obtain them. There is no question that these documents are relevant to Mr. Kovac's claim for income replacement benefits. Accordingly, I find that these documents are reasonably required to ensure a just and fair hearing.

As a result, pursuant to Rule 67.7 of the Code, I order the non parties, Dr. Fischer, Dr. Veidlinger, Dr. Shaul and Dr. Van, to produce to Wawanesa their complete charts with respect to Mr. Kovac from 1997 to date, within 30 days from the date of this order.

YBS Auto Service, employer

The Pace Law Firm sent a letter dated July 29, 2002 to Milan Bjelanovic of YBS at 256 Dundas Street West, Mississauga, Ontario L5B 1J2, with a Direction and Authorization instructing and directing Mr. Bjelanovic to provide copies of all Mr. Kovac's employment records, tax records, opinions, reports, abstracts or excerpts of his records or any other information or documents requested by his solicitor in connection with the December 4, 1999 accident. This request letter was returned to the Pace Law Firm on August 6, 2002, in the original envelope marked "Return to Sender."

The Pace Law Firm ascertained a new location for YBS at 268 Lakeshore Road East, Unit 403, Mississauga, Ontario L5G 1H1. However, their process server was not able to effect service of a summons to witness at that address in January 2003. The Pace Law Firm sent a letter dated March 13, 2003 to Wawanesa's counsel, enclosing a copy of a note from the process server, Kathy Jay, indicating that she had attempted service, but that the office was locked.

On August 1, 2003, Tom Payne, a process server, on behalf of Wawanesa, attempted to serve YBS Auto Service at 256 Dundas Street West, Mississauga, Ontario with a true copy of the Motion Record returnable August 8, 2003.

He was unable to effect service because the business was no longer at this address. A company called "Solutions" is now there. He spoke to an unnamed adult male who stated that YBS had moved from there "a long time ago." He found a listing for YBS at 268 Lakeshore Road East, Suite 403, Mississauga, Ontario. The process server attended at this address on August 1, 2003, and found that it was a locked office. He swore an Affidavit of Attempted Service dated August 6, 2003, which Wawanesa produced to me.

I find that the parties have made a reasonable effort to obtain the documents sought. I also find that it is reasonable to assume that Mr. Kovac's records from his employment with YBS are in the possession, control or power of YBS. Both parties agree that these documents are relevant to the issues to be dealt with at the hearing. However, Rule 67.7 of the Code also requires that I must be satisfied that the third party, YBS in this case, has had a reasonable opportunity to respond. Given the difficulties that the parties have had with serving YBS, I am not satisfied that this is the case.

Pursuant to Rule 3.2 of the Code,

Practice Notes are designed to guide users in the dispute resolution process at the Commission. However, they are not binding and do not affect the duty of the adjudicator to make decisions based on the circumstances and merits of each case.

Pursuant to Rule 81.1(b) of the Code, an adjudicator may decide that any Rule does not apply in respect of a proceeding. I am of the view that this section should be used sparingly, especially in cases where it results in removing a notice requirement. The parties have made efforts to serve YBS. The documents they are seeking are obviously relevant to the proceedings and are limited to Mr. Kovac's employment records in YBS's possession. However, there may be prejudice to YBS. For this reason, and since I do not have evidence that YBS has had an opportunity to respond, I am not prepared to order that YBS produce Mr. Kovac's employment records in its possession to Wawanesa. In addition, it is questionable whether an order I make against a third party, without notice to that party, would be enforceable.

As discussed at a teleconference call on November 25, 2003, with Mr. March and Mr. Chapnik, I am prepared to revisit this issue, should the parties provide me with evidence of service of the Motion Record upon YBS, or proof that the principal of YBS is evading service.

EXPENSES:

Wawanesa withdrew its claim for expenses on this motion, based on Mr. Kovac's co-operation. Accordingly, I make no order for expenses in connection with this motion.

November 27, 2003

Anne Sone Arbitrator

Date