Neutral Citation: 2004 ONFSCDRS 90

FSCO A03-001542

BETWEEN:

JOSEPH ABATE Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY Insurer

MOTION ON PRODUCTIONS

Before: Beth Allen

Heard: April 26, 2004, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on May 14, 2004 and May 21, 2004.

Appearances: Karyn Arter for Mr. Abate J. Lynne Frank for Liberty Mutual Insurance Company

Issues:

The Applicant, Joseph Abate, was injured in a motor vehicle accident on February 1, 1999. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated weekly income replacement benefits on March 17, 2003. The substantive issues in dispute in the arbitration hearing are the Applicant's entitlement to income replacement benefits after the 104-week point after the accident and Liberty Mutual's liability to pay a special award. Both parties claim their arbitration expenses.

The issue before me in this motion is whether the Applicant is required to produce to Liberty Mutual, for the purposes of the arbitration hearing, certain medical reports – an orthopaedic assessment and a functional capacity evaluation – prepared for the companion tort action.

The parties were unable to resolve this dispute at the pre-hearing discussion. Liberty Mutual brought a motion for an order that the Applicant provide the disputed medical reports.

The preliminary issue in this motion is:

Is the Applicant required to produce the orthopaedic medical report by Dr. Michael Ford dated June 26, 2001 and the functional assessment evaluation by Dr. Howard Seiden dated August 22, 2001, prepared in relation to the companion tort action?

Result:

Liberty Mutual is not entitled to production, for the purposes of the arbitration hearing, the medical reports by Dr. Michael Ford dated June 26, 2001 and by Dr. Howard Seiden dated August 22, 2001.

EVIDENCE AND ANALYSIS:

A pre-hearing discussion in this matter was held on April 26, 2004 before me, Arbitrator Beth Allen. Among other production matters, counsel for Liberty Mutual requested that the Applicant produce any defence medical reports prepared for the companion tort action. At the pre-hearing discussion, the Applicant objected to producing the medical reports on the basis that they are not relevant to the issues in dispute. I reserved my decision on this matter and set time deadlines for counsel to file written submissions on the issue.

The Applicant's counsel's written submissions indicate that only two defence medicals have been generated in relation to the tort action – those by Dr. Michael Ford, dated June 26, 2001 and Dr. Howard Seiden, dated August 22, 2001. This decision therefore will deal with the issue of whether those documents should be produced for arbitration.

PARTIES' ARGUMENTS

Liberty Mutual's Arguments

Liberty Mutual's counsel states in her submissions that she does not know how many insurer's medicals exist but argues that Liberty Mutual is entitled to production of any defence medicals prepared for the companion tort action. She submits that any medical reports assessing the Applicant's medical condition are relevant to the Applicant's entitlement to income replacement benefits.

Liberty Mutual's counsel further argues, based on the Tanner v. Clark and Reimer v. Christmas² Ontario Court of Appeal decision, that defence medicals generated in a companion tort action are not protected by Rule 30.1.01 of the Rules of Civil Procedure³, and as such, the same evidence available to the court ought to be available to the arbitration process to avoid inconsistent results.

In her submissions, Liberty Mutual's counsel restated a concern raised in Tanner/Reimer – that when considering the disclosure of defence medicals under these circumstances, regard should be had to ensuring that the best evidence will be before the arbitrator. She argued that the defence medicals are relevant to the issues in dispute and as such are the best evidence.

Liberty Mutual's counsel further argued that production of the defence medicals will not lengthen or complicate the proceedings.

As well, Liberty Mutual's counsel requested production of any defence medicals generated in the tort action after income replacement benefits were terminated. She pointed out that Liberty Mutual had not conducted any insurer's examinations after benefits were terminated.

In making this submission, Liberty Mutual's counsel relied on the Arbitrator's decision in the Snook⁴ decision where the Arbitrator declined to order defence medicals from the tort action that pre-dated benefit termination because to do so would not have been in compliance with the Commission's arbitration rules and practices designed to ensure a fair, balanced, a less expensive and more efficient alternative to the courts. The Arbitrator, however, ordered defence medicals generated after benefit termination based on the fact that the insurer had not requested insurer's assessments after that point.

The Applicant's Arguments

The Applicant's counsel pointed out that the only defence medicals conducted in association with the tort action are those that are at issue – those of Dr. Ford and Dr. Seiden. She submits that the Applicant should not be ordered to produce any defence medicals.

The Applicant's counsel argues that Liberty Mutual has conducted a number of assessments by medical practitioners in various areas of expertise, which are sufficient to raise a defence at arbitration. She points to the following assessments conducted by Liberty Mutual:

An orthopaedic examination by Dr. Reuven Lexier dated May 26, 1999;
A psychiatric examination by Dr. Sam Ozersky dated June 8, 1999;
A functional capacity evaluation by Anne Leslie dated May 31, 1999;
A functional assessment evaluation by Lori Bragga dated September 30, 2002;
An orthopaedic examination by Dr. Reuven Lexier dated September 24, 2002; and
A psychiatric examination by Dr. S. Shapiro dated September 6, 2002

The Applicant's counsel further points out that Liberty Mutual has not explained why the assessments are insufficient or why it did not exercise its right to request further assessments.

The Applicant's counsel submits that production of the tort defence medicals would result, as the Snook decision cautions, in a "battle of numbers" that would be inconsistent with the arbitration rules and practices.

Reasons for Decision

After considering the parties' submissions, I refuse Liberty Mutual's request for production of the medical reports of Dr. Ford and Dr. Seiden.

The question whether documents generated for the purposes of one proceeding can be used in another proceeding, raises the issue of whether the implied undertaking rule stated in Rule 30.1.01 applies to protect the documents from being used in the other proceeding.

The Ontario Court of Appeal in Tanner/Reimer⁵ held that the primary rationales for the implied undertaking rule are both the protection of privacy of individuals whose documents are used in the discovery process and the desire for full and frank disclosure.

The Court looked at the language of Rule 30.1.01(1) and concluded that the Rule is directed at protecting the party who submitted to the medical examination from having their medical information communicated by a third party for use in other proceedings; as distinct from a circumstance where the information is not being sought from a third party for use in another proceeding, but from the source of the medical information, the plaintiff in the tort action. According to the Court, in the latter circumstance, the plaintiff is not seeking to enforce the implied undertaking rule; it is seeking to use it as a shield against producing information. The Court held that the implied undertaking rule ought not be extended in this manner.

In my view, it would do no service to the implied undertaking rule to extend it in this fashion and would, indeed, be a considerable disservice. It would wrap a cloak of privilege around evidence given in any administrative tribunal hearing where a related issue arose in other proceedings. It would stand in the way of courts and tribunals having available the best evidence, or all of the evidence, bearing upon the issue in dispute.

In the case before me, similar to the situation in Tanner/Reimer, it is the Applicant, the plaintiff in the companion tort action, who seeks to prevent the documents from being produced in the arbitration hearing and accordingly, I find that the implied undertaking rule does not apply.

Quite apart from considerations of the applicability of the implied undertaking rule, arbitrators have the power under section 22 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, to, among other things, compel witnesses to produce documents. Commission decisions have held that the exercise of this power in an arbitration proceeding requires the exercise of discretion, having regard to the impact the production of documents from a tort action might have on the arbitration process. Consideration must be given to the relevance of the documents; prejudice to the parties; the sufficiency of existing documents in the party's possession; and whether the documents will complicate or unduly prolong the arbitration proceeding.⁶ As well, of prime importance to the Court in Tanner/Reimer is ensuring that the court has the best evidence before it.

The Director's Delegate in the Sandhu⁷ appeal decision declined to order disclosure of tort defence medicals although he found the documents relevant to the issues in dispute. The Director's Delegate stated:

Any consideration of a request to order production of defence medicals must be made against the backdrop of the insurer's ability to generate medicals within the FSCO proceeding. Section 65(1) of the SABS-94, authorizes the insurer to conduct medical examinations ("IEs") "as often as reasonably necessary." In addition, a dispute over a statutory accident benefit will often trigger an assessment at an independent, government sanctioned assessment centre ("DAC") which sends a report to each party. As a result, an insurer defending a claim advanced at FSCO will rarely be able to assert that it needs the defence medicals to properly assess its exposure or assert its defence.

The Director's Delegate continued:

In the absence of some compelling reason why the medical reports obtained by the insurer pursuant to the SABS are insufficient, I would not grant the insurer's request for production of the defence medicals from the tort file. The insurer is not prejudiced by the non-production, whereas production of the reports will inevitably and unnecessarily lengthen and complicate the arbitration proceeding.

The reports at issue in this arbitration, an orthopaedic assessment by Dr. Ford dated June 26, 2001, and a functional capacity assessment by Dr. Seiden dated August 22, 2001, were generated before the benefit termination date, during the 104-week period after the accident. The main issue in dispute however is the Applicant's entitlement to ongoing income replacement benefits after the 104-week point pursuant to subsection 5(2)(b) of the Schedule⁸. While some information in these reports might be of some assistance in looking at the Applicant's disability in the post-104 week period, I find the weight of the evidence in these reports would be limited. They provide information about the Applicant's medical and functional status for a period not under review in this arbitration. In these circumstances, I find the reports at issue would not meet the Court of Appeal's measure of being the best evidence.

On the basis that the reports will likely be of limited probative value in the arbitration hearing, I will not order them produced.

Further to this, I find persuasive the considerations raised in Sandhu about the opportunities afforded insurers under the Schedule to conduct insurer's examinations. They can conduct such assessments under section 42 of the Schedule "as often as reasonably necessary." Reviewing the list of six insurer's examinations conducted by Liberty Mutual, among them, two orthopaedic assessments (conducted in 1999 and 2002) and two functional capacity assessments (conducted in 1999 and 2002), I find that Liberty Mutual has in its possession sufficient assessments to adequately raise a defence at arbitration.

I find that to order production of the defence medicals would be to encourage a "battle of the numbers." The balance is already tipped in Liberty Mutual's favour in that the section 42 assessments in its possession already significantly exceed the assessments in the Applicant's possession.

Furthermore, I accept the Applicant's counsel's points that Liberty Mutual has never explained why its assessments are not sufficient and why it did not request further assessments, as it is entitled to do.

Further, I can see no prejudice to Liberty Mutual if these reports are not produced.

Concerning Liberty Mutual's request for defence medicals generated after income replacement benefit termination, I find this is not an appropriate production request in the circumstances of this case. The Applicant's counsel indicated that no such documents exist. Arbitrators do not have the authority to make orders based on blanket document requests, for documents that do not exist at the time of the request.

For all these reasons as well, I will not order the Applicant to produce Dr. Ford's and Dr. Seiden's reports.

EXPENSES:

I reserve the issue of expenses to the hearing arbitrator.

June 11, 2004

Beth Allen Arbitrator