Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 167

FSCO A05-000779

BETWEEN:

D. F.

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION FOR PRODUCTION

Before: Anne Sone

Heard: October 3 and 24, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ms F represented herself

Carla Falkeisen for Wawanesa Mutual Insurance Company

Issues:

The Applicant, D.F.,¹ was injured in a motor vehicle accident on October 13, 2002. She applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.² The parties were unable to resolve their disputes through mediation, and Ms F applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Wawanesa brought a motion seeking various preliminary orders.

The motion hearing was initially held on October 3, 2005, at the offices of the Financial Services Commission of Ontario. I dealt with one of the issues on that date and issued a letter decision dated October 6, 2005, in connection with this issue. As Ms F was obviously ill, I adjourned the hearing to October 24, 2005 to hear the rest of the issues.

On October 24, 2005, Wawanesa requested that the remainder of the issues, except for three, be adjourned without a fixed date. I agreed to do so, as it appears likely that they will be moot.

The remaining preliminary issues are:

Is Wawanesa entitled to an order compelling the non-party, Dr. I. Mohamed, to produce to me, Arbitrator Sone, copies of clinical notes and records in his possession with respect to Ms F, from April 1, 1999 to date, including Dr. Rennie's note, at Wawanesa's reasonable expense?
Is Wawanesa entitled to an order compelling the non-party, Revenue Canada, to produce to Wawanesa copies of the income tax returns pertaining to Ms F for the taxation years 2001 and 2004, with attachments, at Wawanesa's reasonable expense?
Is Wawanesa entitled to an order compelling the non-party, Mr. Bruce Reilly, chartered accountant, to produce to Wawanesa a copy of the letter to Ms F from Mr. Reilly referred to on page 16 of her Application for Arbitration dated January 16, 2005, at Wawanesa's reasonable expense?

Result:

Wawanesa is entitled to an order compelling the non-party, Dr. I. Mohamed, to produce to me, Arbitrator Sone, copies of clinical notes and records in his possession with respect to Ms F, from April 1, 1999 to date, including Dr. Rennie's note, at Wawanesa's reasonable expense.
Wawanesa is entitled to an order compelling the non-party, Revenue Canada, to produce to Wawanesa copies of the income tax returns pertaining to Ms F for the taxation years 2001 and 2004, at Wawanesa's reasonable expense. Wawanesa shall provide copies of these income tax returns to Ms F at no cost to her.
Wawanesa is entitled to an order compelling the non-party, Mr. Bruce Reilly, chartered accountant, to produce to Wawanesa a copy of the letter to Ms F from Mr. Reilly referred to on page 16 of her Application for Arbitration dated January 16, 2005, at Wawanesa's reasonable expense. Wawanesa shall provide a copy of this letter to Ms F at no cost to her.

ANALYSIS:

Background

A pre-hearing was held in this matter at the Commission on July 21, 2005. In the pre-hearing letter dated July 27, 2005, the issues were confirmed as Ms F's claims for a weekly income replacement benefit, a mattress set and a lap top as a rehabilitation benefit, the cost of a neuropsychological assessment, a special award, and expenses in respect of the arbitration and interest. Wawanesa claimed a repayment of $3,700 and its expenses in respect of the arbitration.

As indicated above, Wawanesa brought a motion to deal with a number of preliminary issues. The issues I am dealing with in this decision relate to the insurer's request for production of documents by third parties. At Ms F's request, I note that she expressed concern that Wawanesa had provided her health card number to non-health care providers.

Dispute Resolution Practice Code, (Fourth Edition, updated October 2003)

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:

the parties have made reasonable efforts to obtain the documents sought;
the document sought is in the possession, control, or power of the third party;
the third party has had a reasonable opportunity to respond;
the document is reasonably required to ensure a just and fair hearing.

Service Upon Third Parties

Wawanesa submitted a Statement of Service dated September 22, 2005 which indicated that Dr. I. Mohamed, Revenue Canada Tax Service Office and Mr. Bruce Reilly, chartered accountant had been served by regular mail with Wawanesa's Notice of Motion (Motion Record) on that date. In compliance with Rule 67.3 of the Code, the Notice of Motion described the order being sought, the grounds for the order, and the documents to be relied upon. It also set out that the motion was to take place on Monday, October 3, 2005, commencing at 10:00 a.m. at the 14^th Floor of 5160 Yonge Street, North York, Ontario. (In other words, the date, time and manner in which Wawanesa sought to have the motion heard). In addition, the Notice of Motion sets out Wawanesa's prior efforts to obtain these documents. In the Notice of Motion under Grounds for the Order, it states as follows:

The Insurer has repeatedly requested this information from the Applicant. Furthermore, the Insurer's solicitor prepared Authorizations for the Applicant to sign in order for it to obtain this material at its own expense. To date the Applicant refuses to provide the material sought and refuses to sign the Authorizations.
The applicant edited her family doctor's records before submitting to the Insurer.

As a result of these statements, I find that Wawanesa has made reasonable efforts to obtain the documents.

Wawanesa also provided a copy of a letter dated October 4, 2005 to Dr. Mohamed, Revenue Canada Tax Service Office and Mr. Reilly, chartered accountant, which indicated that the motion which was to be heard in person on October 3, 2005, had been adjourned to October 24, 2005.

Dr. Mohamed

Ms F has already produced copies of Dr. Mohamed's clinical notes and records. However, Wawanesa is concerned that she may have crossed out or deleted relevant information. Ms F has stated that she has only deleted identifying information with respect to her head injury and assault. Wawanesa agrees that this information is not relevant to Ms F's claim for statutory accident benefits, and therefore can be deleted. In addition, Wawanesa has requested Dr. Mohamed's clinical notes and records going back to her head injury in 1999. Ms F agrees to authorize Dr. Mohamed to release to me his clinical notes and records from April 1, 1999 (prior to her head injury), at Wawanesa's reasonable expense, including Dr. Rennie's note. She agrees that I can determine what is relevant and provide these notes to Wawanesa.

As required by Rule 67.7 of the Code, set out above, I find that the parties have made reasonable efforts to obtain the documents sought and that these documents are in Dr. Mohamed's possession, control or power. I also find that Dr. Mohamed has been served with the Notice of Motion as set out above, and been advised that the motion was adjourned to October 24, 2005. He failed to attend. As a result, I find that Dr. Mohamed has had a reasonable opportunity to respond. Finally, I find that these clinical notes and records of Ms F's family physician are prima facie relevant to Ms F's claim for statutory accident benefits, and therefore, are reasonably required to ensure a just and fair hearing.

Under these circumstances, I order Dr. I. Mohamed to produce to me copies of his clinical notes and records from April 1, 1999. I order Wawanesa to pay the reasonable expenses to obtain Dr. Mohamed's clinical notes and records for Ms F going back to April 1, 1999. I will cross out identifying information pertaining to the head injury and the assault from which this injury emanated, and provide these productions to Wawanesa, provided that I can read Dr. Mohamed's handwriting. If I require a transcript of these productions, I will conduct a resumption of the motion hearing by teleconference call to deal with this matter.

Income Tax Returns for 2001 and 2004 and Letter from Mr. Bruce Reilly, chartered accountant

As indicated in the pre-hearing letter dated July 27, 2005, income replacement benefits are at issue in this proceeding. On page 16 of her Application for Arbitration dated January 16, 2005, Ms F, under number 3, pertaining to the heading "Documents," was asked to "List key documents not currently in your possession which you intend to get from other sources (such as employers, doctors, Revenue Canada) for use in the arbitration... "

In response to these instructions, Ms F wrote the following:

Tax return - past–current
Letter from my accountant re: earnings previously misrepresented

Ms F agrees that these documents are relevant and should be produced. Wawanesa stated that Revenue Canada and Ms F's accountant, Mr. Reilly acknowledge service of the motion material and the letter updating service, and will comply with any order I make regarding producing these documents. As set out above, I am satisfied that Revenue Canada and Mr. Reilly have received proper notice. Notwithstanding that they did not attend. Accordingly, I find that the parties have complied with the provisions of Rule 67.7 of the Code, in that the parties have made reasonable efforts to produce the documents sought, and that these documents are in the possession, control or power of Revenue Canada and Mr. Reilly. I also find that Revenue Canada and Mr. Reilly have had a reasonable opportunity to respond, and that, in view of the claim for income replacement benefits, these documents are relevant and reasonably required to ensure a just and fair hearing.

Under these circumstances, I order Revenue Canada Tax Service Office to produce Ms F's income tax returns for the taxation years 2001 and 2004, with attachments, at Wawanesa's reasonable expense. (Wawanesa has already received Ms F's income tax returns for the taxation years 2002 and 2003). I also order Mr. Reilly, chartered accountant, to produce the letter referred to at page 16, section 3, under the heading "Documents" of Ms F's Application for Arbitration, at Wawanesa's reasonable expense.

EXPENSES:

Wawanesa felt obliged to bring this motion to obtain productions. However, as noted above, Ms F consented to my orders for production. I exercise my discretion to order that Ms F and Wawanesa will bear their own expenses incurred in this motion for production.

November 24, 2005

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario