Neutral Citation: 2005 ONFSCDRS 10
FSCO A03-000308
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHAHIDA SHAHEED
Applicant
and
WESTERN ASSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before:
Judith Killoran
Heard:
By telephone conference call on January 28, 2004.
Appearances:
Jeffrey Raphael for Ms. Shaheed
Derek Greenside for Western Assurance Company
Issues:
The Applicant, Shahida Shaheed, was injured in a motor vehicle accident on September 24, 2001. She applied for and received statutory accident benefits from Western Assurance Company ("Western"), payable under the Schedule.1 Western terminated weekly income replacement benefits on May 26, 2002. The parties were unable to resolve their disputes through mediation, and Ms. Shaheed applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").
A pre-hearing discussion in this case was held on November 20, 2003 at the offices of the Financial Services Commission. The issues in dispute were identified and agreed to as follows:
Is Ms. Shaheed entitled to receive a weekly income replacement benefit of $400 from May 27, 2002 ongoing, pursuant to section 4 of the Schedule?
Is Ms. Shaheed entitled to payments of $100 weekly for housekeeping and home maintenance services from March 1, 2002, pursuant to section 22 of the Schedule?
Is Western liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Shaheed?
Is Western liable to pay Ms. Shaheed's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Shaheed liable to pay Western's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Shaheed entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
The Insurer, Western Assurance Company, brought a motion before me on January 28, 2005 at 10:00 a.m. The motion asked for:
- An Order compelling Maritime Life Assurance Company to produce a copy of its complete disability file with respect to Ms. Shahida Shaheed.
Result:
- Maritime Life Assurance Company shall produce a copy of the contents of its disability file with respect to Ms. Shahida Shaheed from September 1999 to date.
EVIDENCE AND ANALYSIS:
At the pre-hearing discussion held on November 20, 2003, Ms. Shaheed disclosed that she had disability benefits with Maritime Life Assurance Company ("Maritime"). This was an important issue because the Insurer claimed that, pursuant to the Insurance Act, it was entitled to a deduction from any award of income replacement benefits, for the amounts paid to Ms. Shaheed with respect to her disability benefits.
On July 10, 2003, Ms. Shaheed's counsel requested that Maritime forward Ms. Shaheed's file. On August 18, 2004, Ms. Shaheed's counsel again wrote to Maritime requesting that it produce her file. Although the arbitration was scheduled to proceed on September 13, 2004, it was adjourned due to the unavailability of some witnesses and the failure of Maritime to produce its file.
On November 4, 2004, the Insurer wrote to Maritime requesting a copy of its file with respect to Ms. Shaheed. Despite both parties' efforts, the disability file of Ms. Shaheed was not produced by Maritime. A motion was filed by the Insurer seeking production of the file. The motion materials were served on the Commission, Ms. Shaheed and Maritime.
At the hearing, both parties made submissions about the necessity for production of Maritime's disability benefits file with respect to Ms. Shaheed. Although Maritime had been served with the motion materials, its legal counsel was not available to participate in the motion hearing. I was informed by counsel for the Insurer that Maritime had consented to production of the file, but the Insurer required an Order from me in order to expedite the process.
Ms. Shaheed objected to production of the entire contents of her disability file on the grounds that it lacked relevance. She consented to production of the contents of the file from September 1999 onwards. I agreed with Ms. Shaheed's objections which have been reflected in my Order.
I order production forthwith of a copy of the contents of Maritime's disability file with respect to Ms. Shaheed from September 1999 onwards.
EXPENSES:
I leave the issue of expenses to the discretion of the hearing arbitrator.
January 31, 2005
Judith Killoran
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 10
FSCO A03-000308
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHAHIDA SHAHEED
Applicant
and
WESTERN ASSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Maritime Life Assurance Company shall produce a copy of the contents of its disability file with respect to Ms. Shahida Shaheed from September 1999 to date.
January 31, 2005
Judith Killoran
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.