Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 183 FSCO A04-002101

BETWEEN:

SURESHKUMAR KATHIRESAPILLAI Applicant

and

ING INSURANCE COMPANY OF CANADA Insurer

DECISION ON A MOTION

Before: Richard Feldman Heard: On December 19, 2005 by way of a written hearing based upon motion material filed on behalf of ING on November 22, 2005 and December 9, 2005 and on behalf of the Applicant on December 5 and 12, 2005 Counsel: Ms. Dimple Verma, on behalf of the Applicant Ms. Amelia M. Lecky, on behalf of the Insurer

The Applicant, Sureshkumar Kathiresapillai, was allegedly injured in an automobile accident on February 22, 2003. This application for arbitration arises out of disputes between the Applicant and ING Insurance Company of Canada ("ING") over the benefits that are payable by ING under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mr. Kathiresapillai applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on February 10, 2005, the parties appeared before Arbitrator Leitch. According to the letter from Arbitrator Leitch, dated February 16, 2005, at the pre-hearing conference, amongst other things, the parties identified the issues in dispute, agreed to file with the Commission a joint list of agreed productions within 30 days of the pre-hearing conference and agreed to comply with their respective undertakings (or provide proof of best efforts to comply) within 60 days of the pre-hearing conference. The parties never filed a joint list of agreed productions.

The hearing was originally scheduled to commence on August 8, 2005. At the request of ING and on consent of the Applicant, the commencement of the hearing was adjourned until September 27, 2005. On August 29, 2005, counsel for ING wrote to the Commission requesting a further adjournment of the hearing on the basis that the Applicant had failed to fulfill various undertakings to produce medical documentation and on the basis that ING had only recently learned that the Applicant had undergone knee surgery in April 2005. ING was requesting an adjournment so that there would be time in which to obtain the "missing" documents and to have the Applicant attend an Insurer's examination to "determine the claimant's current status." As adjournment officer, the matter was referred to me.

ING's request for an adjournment and for an order for the production of certain documents was heard by me by teleconference on September 12, 2005. After hearing submissions from Ms. Leckey, on behalf of ING and from Ms. Verma, on behalf of the Applicant, by letter dated September 12, 2005, I adjourned the commencement of the hearing until February 27, 2006 and ordered the Applicant to produce specified documents within 60 days. Ms. Leckey indicated that it was the intention of ING to also bring a motion to compel the attendance of the Applicant at an insurer's examination. By letter dated September 12, 2005, Ms. Verma advised Ms. Leckey that the Applicant would oppose any such attempts to force the Applicant to attend an examination at this late stage in the proceedings but urged that if ING intended to pursue such a motion, it do so as early as possible to avoid any further delay.

On or about November 7, 2005, National IME Centres Inc. sent a letter to the Applicant advising him that, at the request of ING, an orthopaedic assessment was scheduled with Dr. E. English on December 5, 2005.

On November 10, 2005, Ms. Verma wrote to Ms. Leckey repeating the Applicant's position that he did not intend to attend at the scheduled examination.

On November 22, 2005, ING filed a motion record for a motion purportedly returnable during the week of November 21-25, 2005. The matter was once again referred to me. By letter dated November 24, 2005, I reminded ING that, pursuant to Rule 67.5 of the Dispute Resolution Practice Code, 4th Edition (updated October 2003), the responding party has 10 days in which to serve and file a response and that I was not prepared in these circumstances to abridge the normal time requirements set out in the Practice Code. The Applicant's responding material was received by the Commission on or about December 5, 2005 and I advised the parties by letter sent December 8, 2005 that, pursuant to Rule 67.6, I would determine this motion by way of a written hearing (i.e., on the basis of the material filed). On December 9, 2005, counsel for ING filed a factum in support of this motion. On December 12, 2005, counsel for the Applicant filed a copy of a letter, presumably as evidence of production of the clinical notes and records of Dr. Lindal.

The issues raised in this motion are:

Is ING entitled to an order requiring the Applicant to comply with the order for production issued on September 12, 2005?
Is ING entitled to an order requiring the Applicant to attend an insurer's orthopaedic assessment pursuant to section 42 of the Schedule?
In the alternative, is ING entitled to an order staying the arbitration until such time as the Applicant agrees to attend such an assessment?
Is ING entitled to any other relief on this motion?
Is ING entitled to its costs of this motion?
Is the Applicant entitled to his costs of this motion?

The order for production of September 12, 2005 still stands. No further order is required.
The Commission does not have the power to order a person to attend an insurer's medical examination and, even if it did have such power, such an order would not be appropriate in these circumstances.
ING is not entitled to an order staying the arbitration until such time as the Applicant agrees to attend such an insurer's orthopaedic assessment.
ING is not entitled to any other relief on this motion.
There shall be no costs to either party on this motion.

1. Productions

My order of September 12, 2005 speaks for itself. The Applicant was ordered to deliver to ING (at ING's expense), within 60 days: (1) a copy of the ambulance call report; (2) a copy of the records from Mount Sinai Hospital; (3) a copy of the clinical notes and records of Dr. Lindal from January 2002 to the present; (4) a copy of the clinical notes and records of Dr. Sattarian; and, (5) a copy of the records from Scarborough Hospital (Grace campus). At the very least, the Applicant is expected to show that he has used his best efforts to obtain and produce such documents as quickly as possible. According to the affidavit of Dan Rabinowitz, as of November 21, 2005, the Applicant had still not produced the clinical notes and records of Dr. Lindal and of Dr. Sattarian and the records from the Scarborough Hospital (Grace campus). According to counsel for the Applicant, the clinical notes and records of Dr. Lindal and of Dr. Sattarian and the records from the Scarborough Hospital (Grace campus) that were within the possession of Applicant's counsel have now been produced. The complete records from the Scarborough Hospital (Grace campus) were apparently recently requested by counsel for the Applicant but have not yet been produced.

With respect to the order of September 12, 2005, most of the documents referred to therein have now been produced (although not in a timely manner) and nothing will be gained by issuing yet another order for the production of the records from the Scarborough Hospital (Grace campus). If the Applicant has failed to comply with the order of September 12, 2005, pursuant to Rule 34 of the Practice Code, the hearing arbitrator may exclude the relevant documents should the Applicant seek to rely upon them at the hearing, may draw an adverse inference against the Applicant, may take this into account in deciding the issue of the parties' expenses and may make any other order that he or she considers just.

2. Insurer's Examination

I am aware of no statutory or other power that would authorize the Commission to compel an Applicant to undergo a physical examination. Counsel for ING has not referred me to any such authority.

ING has asked, in the alternative, that I order that this application be stayed until the Applicant attends an orthopaedic assessment to be conducted under section 42 of the Schedule. ING relies upon the following cases in support of its argument that such relief is within the jurisdiction of the Commission and warranted in this case: Manakolos v. Royal Insurance [1998] O.J. No. 2157 (Gen. Div.); Zeris and Aviva Canada Inc. (FSCO A03-000473, April 19, 2004); Scott and Toronto Transit Commission (MarkelInsurance) (FSCO A-00116, August 4, 1992); Belair Insurance Co. Inc. and F.S. (OIC Appeal P96-00039A, June 11, 1996); Benn v. Certas Direct Insurance Company (FSCO A01-001296, October 24, 2002) affirmed (Appeal P02-00032, February 5, 2003); McDougall and Kingsway General Insurance Company (FSCO A04-000229, November 18, 2004); and Pertilli and Zurich Insurance Company (FSCO A97-001486, February 17, 1999).

Counsel for the Applicant relies upon the case of Talbot and Lumbermens Mutual Casualty Co. (FSCO A98-000104, June 4, 1999).

The general view of the Commission has been that an examination under section 42 of the Schedule must be for the legitimate purpose of adjusting the file and not primarily to gain an advantage with respect to the pending arbitration hearing. The closer the request for an examination is made to the date of the hearing, the closer will be the scrutiny of the Commission in determining the reasonableness of the insurer's request. Typically, this involves balancing the interests of fairness and efficiency. It also involves consideration of the applicant's right to privacy and the insurer's right to obtain medical information and to know the case it has to meet.

In this case, the Applicant is claiming, amongst other things:

Attendant care benefits to October 15, 2003;
The cost of examinations and reports by Assessment Direct;
Housekeeping and home maintenance benefits to February 22, 2005; and
Income replacement benefits.

With respect to the first two types of benefits, no claim is made by the Applicant for any period beyond 2003. With respect to housekeeping and home maintenance, no claim for such benefits is being advanced beyond February 2005. ING acknowledges that the orthopaedic examination being proposed would only relate to the Applicant's claim for income replacement benefits. No such benefits have been paid since 2003.

In the motion record and factum filed by counsel for ING, reference is made to the expiry of 104 weeks from the date of the accident (February 22, 2003). While it is not clear to me that the expiry of this period automatically (and without any other justification) entitles an insurer to conduct an examination under section 42, assuming (without deciding) that such a right does accrue, ING has had since February 2005 (about 10 months ago) to seek to exercise its rights in this respect. ING's delay in assessing the Applicant's current medical condition cannot reasonably be attributed solely to the failure of the Applicant to promptly deliver all promised documents.

Counsel for ING has also suggested that it was unaware until the summer of 2005 that the condition of the Applicant's right knee had become his major complaint or that he had undergone knee surgery in April 2005. Now that ING is aware of these facts, it apparently wishes to have its own expert examine the Applicant. Although this argument has some merit and may have justified granting the relief sought by ING, there are a couple of problems.

First, ING has not adequately explained the delay between the time it learned (by July 2005 at the latest)² that the Applicant had undergone knee surgery and when it scheduled an insurer's examination (December 2005).

Second, and perhaps more importantly, since ING is seeking an extraordinary remedy (a stay of these proceedings) for an alleged failure of the Applicant to comply with the provisions of section 42 of the Schedule, ING must itself have strictly complied with all of the requirements of section 42. In particular, subsection 42(2) requires that the notice of examination shall, amongst other requirements, "state the reasons why the insurer requires the examination."

In this case, the notice dated November 7, 2005 (Exhibit "J" to the affidavit of Dan Rabinowitz, sworn November 21, 2005) fails to state the purpose for the examination as required by subsection 42(2) of the Schedule. This omission rendered the notice invalid and relieved the Applicant of any obligation to attend the examination referred to therein. ING is, therefore, not entitled to any relief as a result of the Applicant's failure to comply with the said notice.

CONCLUSION:

For the foregoing reasons, ING's motion shall be denied.

EXPENSES:

I have considered the criteria set out in the Expense Regulation.³ The two most important factors in this case in determining who should bear the expenses of this motion appear to be: (1) the failure of the Applicant to comply with his undertakings and with the order of September 12, 2005 (which has tended to obstruct or hinder the proceeding); and (2) the lack of success of ING on this motion. By failing to comply with undertakings and an order from the Commission (on a timely basis), the Applicant has essentially forced ING to first move for an adjournment of the hearing and then bring this motion; that certainly favours an award of expenses against the Applicant. On the other hand, ING has been unsuccessful on this motion and is itself partially responsible for delaying the process; ING's complete lack of success on this motion favours an award of expenses against ING. In such circumstances, I do not find it appropriate to award any expenses related to this motion to either party.

December 22, 2005

Richard Feldman Arbitrator

Date