Mohamed Mohamud v. Pilot Insurance Company, 2004 ONFSCDRS 122

Neutral Citation: 2004 ONFSCDRS 122

FSCO A03-001742

BETWEEN:

MOHAMED MOHAMUD

Applicant

and

PILOT INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before:

Anne Sone

Heard:

June 1, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Kevin Wolf for Mr. Mohamud

Jean-Claude Rioux for Pilot Canada Inc.

The Applicant, Mohamed Mohamud, was injured in a motor vehicle accident on December 18, 2002. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot terminated weekly income replacement benefits on May 13, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Mohamud applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mr. Mohamud is claiming an income replacement benefit from May 14, 2003 to March 5, 2004, along with a special award, legal expenses and interest. Pilot is also claiming its legal expenses.

At the pre-hearing discussion of this case held on June 1, 2004, the following production issue arose:

Does Mr. Mohamud have to produce to Pilot his bank statements from one year prior to the accident to date?

Mr. Mohamud does not have to produce to Pilot his bank statements from one year prior to the accident to date.

Background:

The parties do not dispute that, prior to the motor vehicle accident of December 18, 2002, Mr. Mohamud was employed as a long-haul truck driver, and received pay cheques bi-weekly. Source deductions were deducted from Mr. Mohamud's pay cheques. Pilot is seeking Mr. Mohamud's bank statements from one year prior to the accident to date.

Pilot's Argument:

Pilot states that it is seeking Mr. Mohamud's bank statements from one year prior to the accident to date because under subsection 6(2) of the Schedule it may deduct 80% of the net income Mr. Mohamud has received since the accident. Pilot also requested these records for time periods before and after the accident to allow a comparison between deposits made during these periods.

Pilot offered to give an undertaking of confidentiality. It argues that without these records, an insurer has no source of independent information regarding an applicant's receipt of post-accident income. It submits that applicants frequently argue at the Commission that income tax returns are not determinative of a claimant's entitlement to an income replacement benefit. Accordingly, the Applicant's production of his self-generated income tax returns should not be determinative as to what post-accident income he may have in fact received.

Mr. Mohamud's Argument:

Mr. Mohamud objects to producing his bank statements to Pilot. The amount of the weekly income replacement benefit ("IRB") is not in dispute. He has agreed to provide copies of his income tax returns for the relevant period in question notwithstanding that the amount of the IRB is not in dispute, and there has been no question regarding their validity. As noted earlier, Mr. Mohamud is employed as a long-haul truck driver, and is paid bi-weekly. There are source deductions made from Mr. Mohamud's pay cheques. Mr. Mohamud states that banking records are not necessarily determinative of whether he received additional income after the accident. He argues that such an order is unnecessarily intrusive.

Conclusion:

I am not prepared to order the production of Mr. Mohamud's bank statements from one year prior to the accident to date, as requested. Although the Insurer is entitled to a deduction for post accident income, I am not persuaded that the bank records would be especially helpful or relevant. The amount of the weekly IRB is not in dispute.

The Insurer has not presented any evidence that the Applicant was employed in the period in question, notwithstanding its potential access to or the availability of income tax returns, medical records, investigation, surveillance and/or statutory statements. Furthermore, there are source deductions from Mr. Mohamud's pay cheques, which increase the likelihood of the validity of his tax returns.

In the absence of any evidentiary basis to suspect that this Applicant was indeed employed at any time during the entitlement period in dispute, other than as admitted, I am not persuaded that speculation alone justifies such an intrusive production request. If such a production request were allowed, it would apply equally to every case where there was an IRB claim. That would hardly be consistent with the general rule, as set out in section 1 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003), that the Rules are to be interpreted to produce the most just, quickest and least expensive resolution of the dispute.

August 24, 2004

Anne Sone Arbitrator

Date