Neutral Citation: 2004 ONFSCDRS 19

FSCO A01-001521

BETWEEN:

MIODRAG KOVAC

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR PRODUCTION

Before:

Anne Sone

Heard:

January 28, 2004 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearance:

Seth Kornblum, in person 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 his physicians asking for clinical notes and records with respect to Mr. Kovac (including handwritten notes prepared during consultations). These letters included authorizations signed by Mr. Kovac. His counsel also sent letters and authorizations to Mr. Kovac's employers requesting employment records respecting Mr. Kovac. Some of these third parties 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. In a decision dated November 27, 2003, I ordered the physicians, who had not supplied their clinical notes and records, to produce to Wawanesa their complete charts with respect to Mr. Kovac from 1997 to date.

However, the parties had difficulty serving Mr. Kovac's employer, YBS Auto Service ("YBS"). Rule 67.7 of the Dispute Resolution Practice Code, Fourth Edition, May 31, 2001, (the "Code") requires that I must be satisfied that a third party, YBS in this case, has had a reasonable opportunity to respond. Given the difficulties that the parties had with serving YBS, I was not satisfied that this was the case.

As discussed at a teleconference call on November 25, 2003, with Mr. March on behalf of Wawanesa and Mr. Chapnik on behalf of Mr. Kovac, I advised that I was 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.

The issue on the motion is:

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, YBS Auto Service, to produce to Wawanesa employment records in its possession with respect to Mr. Kovac, within 30 days of the date of the order.

Background:

On December 4, 1999, Mr. Kovac was driving when another vehicle exited a side street and hit 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 as a result, 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, where he began 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 Mr. Kovac's complete employment file 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 these productions to Mr. Kovac 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 the undertakings.

Dispute Resolution Practice Code:

Pursuant to subsection 67.7 of 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.

YBS Auto Service, Employer:

The Pace Law Firm sent a letter dated July 29, 2002 to Mr. 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, 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 Joy, 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 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. 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.

In my decision dated November 27, 2003, I found that the parties had made a reasonable effort to obtain the documents sought. I also found that it was reasonable to assume that Mr. Kovac's records from his employment with YBS are in the possession, control or power of YBS. Both parties agreed that these documents are relevant to the issues to be dealt with at the hearing.

Subsequently, Ms. Barbara Prouse, a process server, successfully served YBS. She swore in an affidavit dated January 8, 2004 that:

On January 8, 2004 at 9:45 a.m., I personally served YBS Auto Service with the Motion Record and accompanying cover letter, by leaving a copy with Milan Bjelanovic, President, and the person in care and control of the office at the time of service at 268 Lakeshore Road East, Unit #403, Mississauga, Ontario.
I was able to identify the person by means of verbal acknowledgment.

The covering letter from Seth Kornblum of Beard Winter LLP was addressed to YBS Auto Service and dated December 16, 2003. It stated as follows:

Enclosed please find our Motion Record which although originally returnable May 16, 2003 is now returnable January 28, 2004, at the Financial Services Commission, 5160 Yonge Street, 14th Floor, North York, Ontario.

Please be advised that if we do not receive your agreement to produce the requested records, prior to this date, we will be seeking our costs of attending on January 28, 2004.

After being served with the Motion Record on January 8, 2004, Mr. Bjelanovic contacted Mr. Kornblum on January 12, 2004. In the telephone conversation, he advised that Mr. Kovac was not an employee of YBS, and that he had already sent a letter to Mr. Kovac's lawyers confirming this.

In response, Mr. Kornblum sent Mr. Bjelanovic a letter dated January 19, 2004 enclosing a copy of an Employer's Confirmation of Income (OCF-2/59). The Employer's Confirmation of Income shows that Mr. Kovac was employed with YBS prior to the accident, and indicates Mr. Bjelanovic as the contact person. It is also signed by Mr. Bjelanovic as President of YBS and dated January 12, 2000.

Mr. Kornblum further asks Mr. Bjelanovic to forward a copy of his letter to Mr. Kovac's lawyers confirming that Mr. Kovac was not an employee of YBS. Mr. Kornblum also confirms that the motion seeking production of YBS's complete employment file will be proceeding on January 28, 2004, but that depending on the information which Mr. Bjelanovic provides, the date may no longer be required. Mr. Kornblum did not receive a response to this letter.

The Pace Law Firm, on behalf of Mr. Kovac, has not produced any letter from Mr. Bjelanovic or YBS.

Conclusion regarding YBS Auto Service:

Based on the facts I have outlined above, I find that the parties have made reasonable efforts to obtain the documents sought from YBS. Although Mr. Bjelanovic has recently denied that Mr. Kovac was an employee of YBS, he did sign an Employer's Confirmation of Income indicating that Mr. Kovac was an employee of YBS. In addition, there is no written evidence of any letter he alleges he sent to Mr. Kovac's lawyers. Accordingly, I find that the documents sought are in the possession, control or power of YBS. YBS has received one or more requests. It has also been served with a Motion Record. Further, Mr. Bjelanovic telephoned Mr. Kornblum. In spite of all this, YBS, through Mr. Bjelanovic, opted not to respond to Mr. Kornblum's letter of January 19, 2004, and to not attend at the hearing set for this matter on January 28, 2004.

I find that despite its failure to take advantage of the opportunity to respond to the letter of January 19, 2004, or attend at the hearing, it has had a reasonable opportunity to respond.

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-party, YBS Auto Service to produce to Wawanesa its complete employment file with respect to Mr. Kovac, within 30 days from the date of this order.

EXPENSES:

Wawanesa was making a claim for expenses from the non-party, YBS. Counsel requested time to prepare additional submissions on this issue. Accordingly, I allowed Wawanesa until February 9, 2004 to provide submissions to me as to whether I should order YBS to pay Wawanesa's expenses of this motion. By letter dated February 9, 2004, Wawanesa advised me that it has withdrawn its request for expenses from YBS.

February 13, 2004.

Anne Sone Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 19

FSCO A01-001521

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MIODRAG KOVAC

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

YBS Auto Service produce to Wawanesa its complete employment records with respect to Mr. Kovac, within 30 days of the date of this order.

February 13, 2004