Financial Services Commission of Ontario

Neutral Citation: 2005 ONFSCDRS 127 FSCO A04-001072

BETWEEN:

ALEXANDER VOSSOS Applicant

and

WESTERN ASSURANCE COMPANY Insurer

DECISION ON A PRE-HEARING ISSUE

Before: Anne Sone Heard: August 5, 2005, by teleconference call arranged by the Financial Services Commission of Ontario.

Appearances: Charlia D. von Buchwald for Mr. Vossos Daniel Himelfarb for Western Assurance Company

Issues:

The Applicant, Alexander Vossos, was injured in a motor vehicle accident on September 19, 2001. He applied for and received statutory accident benefits from Western Assurance Company ("Western"), payable under the Schedule.¹ He is seeking payment of a non-earner benefit starting March 19, 2002, less amounts he has received for income replacement benefits. Western disputes his entitlement to this benefit. The parties were unable to resolve their disputes through mediation and Mr. Vossos applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The pre-hearing discussion in this matter was held by teleconference call on December 15, 2004. Subsequently, Western brought a motion seeking production of a report prepared by Dr. Shawn Scherer. Dr. Scherer conducted a defence medical examination of Mr. Vossos in connection with Mr. Vossos' tort claim. Mr. Vossos objects to producing this report.

The preliminary issue is:

1. Is Mr. Vossos required to produce the report of Dr. Shawn Scherer dated June 14, 2005?

Result:

1. Mr. Vossos is required to produce the report of Dr. Shawn Scherer dated June 14, 2005.

EVIDENCE AND ANALYSIS:

Alexander Vossos struck his head on the pavement when he fell from a moving vehicle while attempting to climb between the open back of a pickup truck and the passenger seat. He was an athletically and academically high achieving high school student when the accident occurred. As a result, he suffered a traumatic brain injury, including skull vault and skull base fractures.

Dr. Shawn Scherer is a rehabilitation psychologist who performs vocational assessments. In connection with Mr. Vossos' tort claim, Dr. Scherer conducted an assessment and prepared a report for the defence dated June 14, 2005. This came to Western's attention at a private mediation on June 30, 2005, where the parties attempted to resolve both Mr. Vossos' tort and accident benefits claims. Mr. Vossos objects to producing Dr. Scherer's report. Both parties agreed that the Rules of Civil Procedure regarding the implied undertaking rule do not apply in this case.

Western's Submissions

Western submits that its insurer examinations are over a year old and that an updated report would be helpful to the hearing arbitrator. It provides a better picture of his current status because the arbitration relates to ongoing weekly benefits. In addition, Western does not have a vocational report in this case.

Western points out that pursuant to Rule 32.3 of the Dispute Resolution Practice Code, I have the power (subject to Rule 39) to order the production of documents that I consider relevant, on such terms as I consider appropriate.

Western also argues that the policy reasons precluding the use or disclosure of a report prepared pursuant to a defence medical in another proceeding are not present in this situation. Firstly, no privilege has been asserted over the report in Mr. Vossos' tort action, and therefore, there is no privilege which attaches to the report in the arbitration proceeding. Secondly, Mr. Vossos' privacy will not be prejudiced by the disclosure and use of the report as any personal information contained in the report has already been disclosed in the reports currently in Western's possession. The only difference is the opinions and findings of the assessor, Dr. Scherer.

Mr. Vossos' Submissions

Mr. Vossos reviewed Director's Delegate McMahon's decision in CAA Insurance Company (Ontario) and Sandhu² in detail. Based on that decision, and the decision of Arbitrator Allen in Abate and Liberty Mutual Insurance Company,³ he argues that the factors to be considered when ruling on the production of defence medical reports generated in a tort action in the Ontario Superior court, in the context of a FSCO proceeding, are the following:

a) the relevance of the documents,

b) the sufficiency of the existing documents in the party's possession,

c) whether the documents will complicate or unduly prolong the arbitration proceeding and

d) the prejudice to the parties.

Mr. Vossos submits that the report is not relevant, in that it was prepared for the purpose of determining Mr. Vossos' tort claim for future loss of income. There is no claim in the tort action for a non-earner benefit. Mr. Vossos also submits that admitting this report will unduly lengthen and complicate the proceedings since Western already has sufficient medical reports to conduct its own defence in this matter. In addition, Mr. Vossos submits that he will be unduly prejudiced if the report of Dr. Scherer is ordered to be produced, and Mr. Vossos' privacy interests should be protected.

Analysis and Conclusion

I concur with the factors that Mr. Vossos submits I should consider in this case. The first factor is the relevance of the report. Mr. Vossos supplied me with a copy of Dr. Scherer's report so that I could read it in order to determine its relevance. In McAllister and Economical Mutual Insurance Company,⁴ Arbitrator Killoran was not persuaded that the documents in the applicant's disability file that the insurer sought to have produced were relevant to the arbitration proceeding. She stated that those medical reports prepared for the purpose of determining the applicant's eligibility for long-term disability benefits were prepared in the context of a particular test to be met. Arbitrator Killoran found that the disability tests set by disability carriers and those found in the Schedule are different and require consideration of a different set of factors.

In this case, Dr. Scherer has prepared a lengthy and detailed report.⁵ Although it was prepared in the context of Mr. Vossos' tort proceeding, and deals with his future loss of income claim, it addresses from the perspective of a psychological expert whether Mr. Vossos currently suffers from a complete inability to carry on a normal life. This is the very question the arbitrator who hears this case will have to answer when dealing with Mr. Vossos' claim for a non-earner benefit. Accordingly, I find that Dr. Scherer's report is relevant to this case.

The next factor to be considered is the sufficiency of the existing documents. Pursuant to section 42 of the Schedule, Western is entitled to conduct an insurer examination as often as is reasonably necessary to determine whether an insured person is entitled to a benefit. Western has conducted the following insurer examinations on Mr. Vossos:

• June 1, 3 and 4, 2004 (Dr. Bauer, neuropsychologist)

• June 3, 2004 (Dr. Mayer, neurosurgeon)

• June 4, 2004 (Dr. Meikle, physiatrist)

In addition, Western has all reports and records of the treating physicians. Mr. Vossos submits that the assessments are recent and there is no allegation of a change in circumstances.

I note that all the insurer's assessments are more than a year old. None of the above assessments were conducted by a professional with special qualifications and experience in vocational rehabilitation. Dr. Scherer, based on his qualifications and experience with the Workplace Safety & Insurance Board and the Financial Services Commission of Ontario, refers to himself as a rehabilitation psychologist. In addition, he opines on the vocational rehabilitation support Mr. Vossos requires. Accordingly, I find that Dr. Scherer will provide additional, relevant information to the arbitrator which is not otherwise currently available.

The next factor to consider is whether the document will complicate or unduly prolong the arbitration proceeding. Mr. Vossos refers to the decision in Snook and ING Insurance Company of Canada,⁶ where Arbitrator Sandomirsky was concerned that ordering production of tort defence reports dating from the pre-accident period would result in a "doubling up" of the assessments and potentially lengthen and complicate the hearing process. However, she found that the argument for production of the reports for the period after the insurer terminated benefits more compelling, and decided to exercise her discretion to order their production.

If I order the production of Dr. Scherer's report, Mr. Vossos may need to obtain a further responding report. This may lengthen and add costs to the hearing process. However, it is also possible that Mr. Vossos would have to obtain such a report for the tort proceedings, in any event.

Further, I am also considering the prejudice to the parties which may result from the production or non-production of Dr. Scherer's report. Mr. Vossos states that he will be unduly prejudiced if the report of Dr. Scherer is ordered produced, as the report and the evidence of Dr. Scherer will unduly lengthen and complicate the proceeding.

Western argues that the production of Dr. Scherer's report will not unduly complicate or lengthen the proceedings because it is not looking to do another assessment or report of this nature. There is no overlap with any existing reports.

I also note that in the Abate decision mentioned above, Arbitrator Allen states that in addition to these factors, "of prime importance to the court in Tanner v. Clark, Reimer v. Christmas⁷ is ensuring that the court has the best evidence before it."

To sum up, I find Dr. Scherer's report to be relevant to the arbitration. It may lengthen the hearing process, if Mr. Vossos feels compelled to respond. However, there is currently no evidence of this nature, and therefore, its production will not result in a "doubling up" of similar reports. In addition, I am of the view it is important that the arbitrator has the best evidence before him or her. Accordingly, I exercise my discretion to order Mr. Vossos to produce Dr. Scherer's report.

September 9, 2005

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2005 ONFSCDRS 127 FSCO A04-001072

BETWEEN:

ALEXANDER VOSSOS 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:

1. Mr. Vossos produce the report of Dr. Shawn Sherer dated June 14, 2005.

September 9, 2005

Anne Sone Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(FSCO P01-00044, January 18, 2002) appeal
3. 3(FSCO A03-001542, June 11, 2004)
4. 4(FSCO A01-001065, March 1, 2002)
5. 5Dr. Scherer's report is 28 pages long, including appendices.
6. 6(FSCO A02-000728, September 15, 2003)
7. 7(2003), 2003 CanLII 41640 (ON CA), 63 O.R. (3d) 508 (C.A.) This case deals with the operation of the implied undertaking rule. Its primary rationale is balancing the protection of the privacy of individuals whose documents are used in the discovery process and the desire for full and frank disclosure.