Neutral Citation: 2005 ONFSCDRS 6
FSCO A04-001327
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BLAIR PLUMMER
Applicant
and
FARMERS' MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION FOR PRODUCTION
Before:
Denise Ashby
Heard:
By telephone conference call on January 4, 2005.
Appearances:
Salvatore Shaw for Mr. Plummer
Linda Matthews for Farmers' Mutual Insurance Company
Issues:
The Applicant, Blair Plummer, was injured in a motor vehicle accident on September 15, 2001. He applied for and received statutory accident benefits from Farmers' Mutual Insurance Company ("Farmers' Mutual"), payable under the Schedule.1 Farmers' Mutual did not pay the amount of housekeeping benefits claimed by Mr. Plummer for the period September 15, 2001 to September 15, 2003. The parties were unable to resolve their dispute through mediation, and Mr. Plummer 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 January 4, 2005, Farmers' Mutual brought a motion for production of the transcript of Mr. Plummer's examination for discovery.
The issues are:
- Is the Insurer entitled to production of the transcript of the Applicant's examination for discovery in the related tort action commenced as a result of the same accident which resulted in these proceedings?
Result:
- The Insurer is not entitled to production of the transcript of the Applicant's examination for discovery in the related tort action.
REASONS:
At a pre-hearing discussion held by telephone on Tuesday, January 4, 2005, Farmers' Mutual requested production of the transcript of the Applicant's examination for discovery in a related tort action. Mr. Plummer refused the production request. He submitted that the transcript was not relevant to these proceedings as the issue of housekeeping and home maintenance expenses was restricted to the period September 15, 2001 to September 15, 2003. Farmers' Mutual argued that because it was likely the Applicant had sought future housekeeping and home maintenance expenses in the tort action, his evidence would be relevant. Farmers' Mutual relied on the decision of the Court of Appeal in Tanner v. Clark and Reimer v. Christmas2 as determinative of the issue. Farmers' Mutual argued that the decision stands for the premise that evidence in the tort is relevant to an accident benefits claim and vice versa.
I was advised by Mr. Plummer's counsel that the transcript had not been ordered. Farmers' Mutual agreed that if successful on the motion it would pay the cost of obtaining the transcript.
The decision of the Court of Appeal in Tanner v. Clark and Reimer v. Christmas was recently considered in Majer and Kingsway General Insurance Company3 The Majer decision was followed in Snook and ING Insurance Company of Canada.4 In Majer, the arbitrator denied Kingsway's request for production of the Applicant's transcript for discovery distinguishing it from those considered by the Court of Appeal in two respects:
Kingsway was seeking disclosure of a transcript for discovery and not medical reports; and
the transcript was produced in the course of a civil action and therefore the Insurer was "seeking to import" the transcript into the dispute resolution process at FSCO and not the reverse.
She then went on to analyse both the provisions of the Insurance Act, the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) and FSCO's case law. The arbitrator concluded that relevance is not determinative with respect to importing a transcript for discovery into a FSCO proceeding because:
...the dispute resolution system at FSCO does not include examinations for discovery. When an insured person chooses to arbitrate, rather than bringing a civil action, they give up both the possibility of being examined and of examining the other party prior to the hearing. A party would gain an unfair advantage if it could obtain production of a transcript from an examination for discovery from a related tort or other civil action. This would also lead to a distortion of the process at FSCO, as set out in the Insurance Act
I agree that ordering production of the transcript for discovery would give Farmers' Mutual an unfair advantage by effectively importing the discovery process into the FSCO proceeding, something which is not available pursuant to the Insurance Act. Therefore, Mr. Plummer is not required to order and disclose his transcript of discovery in the tort action to Farmers' Mutual.
January 19, 2005
Denise Ashby
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 6
FSCO A04-001327
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BLAIR PLUMMER
Applicant
and
FARMERS' MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The Insurer is not entitled to production of the transcript of the Applicant's examination for discovery in the related tort action.
January 19, 2005
Denise Ashby
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- 2003 CanLII 41640 (ON CA), [2003] O.J. No. 677 (C.A.)
- (FSCO A03-000466, July 10, 2003)
- (FSCO A02-000728, September 15, 2003)