Commission des assurances de l’Ontario

Neutral Citation: 2006 ONFSCDRS 102

FSCO A05–002934

BETWEEN:

HASINA AKHTAR

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Judith Killoran

Heard: By telephone conference call on May 25, 2006.

Appearances: Rizwan Wancho for Ms. Akhtar Scott T. Croteau for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Hasina Akhtar, was involved in a motor vehicle accident on June 30, 2004. She applied for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Akhtar applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The case before me involves a matter which has not yet proceeded to a pre-hearing discussion. Royal brought a motion, pursuant to Rules 32 and 67 of the Dispute Resolution Practice Code, for productions. Rule 32 requires that the parties discuss and exchange documents ten days prior to the pre-hearing discussion. This is rarely done. In the case before me, Royal wished to prepare for the pre-hearing discussion in order to maximize the opportunities for a fruitful proceeding. Royal relied on Rule 67 which allows an adjudicator to make preliminary or interim orders within a proceeding, pending a final order.

The preliminary issues are:

Is Royal entitled to the following production orders:

(a) Ms. Akhtar's OHIP decoded summary from as far back as possible to the present;

(b) Ms. Akhtar's family physician's clinical notes and records three years pre-accident to the present; and

Is Ms. Akhtar entitled to production of the adjuster's file with notes?

Result:

Royal is entitled to the following production orders:

(a) Ms. Akhtar's decoded OHIP summary from 1 year prior to the 2003 accident.

(b) Ms. Akhtar's family physician's clinical notes and records from 1 year prior to the 2003 accident.

Ms. Akhtar is entitled to the adjuster's file and notes up to the date of the application for mediation.

EVIDENCE AND ANALYSIS:

Royal requested, under Rules 32 and 67 of the Dispute Resolution Practice Code, an order compelling Ms. Akhtar to produce a decoded OHIP summary from as far back as possible to the present; her family physician's clinical notes and records three years pre-accident to the present; and all physiotherapy and chiropractic records. Ms. Akhtar responded that she was willing to produce all of the records requested but asked that they be restricted to one year prior to the accident on June 30, 2004.

Subsection 22(1) of the Insurance Act provides that an arbitrator has the same power as is vested in the Ontario Court to order production of documents. It states as follows:

For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Ontario Court (General Division) for the trial of civil actions.

Section 15 of the Statutory Powers Procedure Act ("SPPA") sets out what evidence is not admissible at hearings. Subsection 15(2) provides as follows:

Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

Rule 32.3 of the Dispute Resolution Practice Code provides that an arbitrator may at any time order production of any document he or she considers relevant for determining the issues in dispute. Based on the SPPA and the DRPC, I have the power to order the production of documents which I determine are relevant to the proceedings. However, this power is subject to solicitor-client and litigation privilege.

Royal submitted that based on its records, Ms. Akhtar was involved in an earlier accident in 2003. Consequently, my production order reflects this and I have not accepted either party's position with respect to productions. Rather, I find that Royal's request is premature and too broad in scope, particularly as no foundation was presented to me for requiring documents dating back so far. On the other hand, Ms. Akhtar's response is too narrow in scope. If there was an earlier accident in 2003, it is important to obtain records dating at least one year prior to that accident. As well, Royal is entitled to all physiotherapy and chiropractic records relating to both accidents as these records are relevant to the proceeding.

Ms. Akhtar requested the entire adjuster's file which Royal refused to produce. I order that the adjuster's file should be produced to the date of the Application for Mediation. Traditionally, arbitrators have often relied on that date to define a line between claims adjustment and litigation. This dividing line reflects a presumption, which can be rebutted, that before that date the insurer was primarily concerned with adjusting the file and after that date the insurer has changed its focus to preparing for litigation. However, an insurer continues to have an obligation to adjust the insured's claim even after benefits have been denied and litigation has been initiated.

I did not hear any submissions from Mr. Akhtar requesting that Royal produce documents past the date of the Application for Mediation. However, Mr. Akhtar may request that Royal produce such documents. If he does so, Royal has the onus of establishing privilege to any document which it refuses to produce. Royal must then serve and file a an affidavit of documents, identifying the documents to which it claims privilege attaches, and the reason the claim for privilege is advanced. I will then review the affidavit of documents and if necessary, reconvene to hear submissions from both parties before I issue an order with respect to the production issues which may arise.

EXPENSES:

Both parties shall bear their own expenses of this motion.

June 19, 2006

Judith Killoran Arbitrator

Date

Ontario Insurance Commission