Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 127
FSCO A05-002434
BETWEEN:
CHUPASGARAN CHUNTHARALINGAM
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: John Wilson
Heard: July 27, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Ms. Nureen Sharif for Mr. Chuntharalingam
Ms. Jane Cvijan for Co-operators General Insurance Company
Issues:
The Applicant, Chupasgaran Chuntharalingam, claimed to have been injured in a motor vehicle accident on July 14, 2004. He applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Chuntharalingam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues on this motion are:
Should an order be issued compelling a third party, Mr. Ponnudurai Indiralingam, the driver of the car involved in the accident, to produce his cell phone records?
Should the commencement of the hearing in this matter be adjourned to permit the production of the above records, as well as to accommodate a recent injury to Mr. Chuntharalingam's ankle?
Result:
There will be no third-party production order.
The matter is adjourned to October 16 and 17, 2006.
EVIDENCE AND ANALYSIS:
When this matter was pre-heard on May 17, 2006, it was clear that the presence of Mr. Chuntharalingam at the accident site was a key issue in the arbitration. Indeed, I ordered the hearing bifurcated to deal first with the issue of whether Mr. Chuntharalingam's injuries arose from a motor vehicle accident. The first day of the bifurcated hearing was to be August 3, 2006.
It was also clear that the success of Mr. Chuntharalingam's case depended on evidence that could corroborate his version of events, a version that included his presence in Mr. Ponnudurai Indiralingam's car at the time of the accident. Mr. Chuntharalingam's version of events includes Mr. Indiralingam calling for a taxi for Mr. Chuntharalingam on his cell phone at the collision reporting centre.
While I accept that a printout of Mr. Indiralingam's cell phone records may be potentially relevant in corroborating Mr. Chuntharalingam's account, I am not prepared to make the order requested by Ms. Sharif at this time.
When the issue of third-party productions was raised again on July 6, 2006, I immediately wrote back to Ms. Sharif reminding her that "Rule 67.4 provides a framework for third-party production motions. Compliance with its provisions is mandatory."
Rule 67 of the Dispute Resolution Practice Code (4th Ed., Updated October 2003) provides:
67.3 A party making such a request must, in writing:
(a) describe the order being sought, the grounds for the order, and provide any documents to be relied on;
(b) set out the time, date and manner in which the party seeks to have the motion heard; and
(c) serve this material on the other parties and file it.
67.4 Where a party seeks an order for production against a person who is not a party to the proceeding ("third party"), the party making the request must serve the materials required under Rule 67.3, upon the third party and file it together with a Statement of Service in Form F.
67.5 Within 10 days of being served, the responding party and third party, if any, must:
(a) serve a written response and documents to be relied on; and
(b) file a copy of the written response and documents.
67.6 The adjudicator may determine the request on the basis of the documents and written submissions filed, or in such manner as the adjudicator considers appropriate.
67.7 Before making an order for the production of documents against a third party, the adjudicator shall be satisfied that:
(a) the parties have made reasonable efforts to obtain the document sought;
(b) the document sought is in the possession, control or power of the third party;
(c) the third party has had a reasonable opportunity to respond;
(d) the document is reasonably required to ensure a just and fair hearing.
In this matter, the motion was apparently served on Mr. Indiralingam, but no affidavit of service was provided, and Ms. Sharif could provide no particulars of service. In addition, Ms. Sharif conceded that the Notice of Motion thought to have been served on Mr. Indiralingam contained no return date, and that there was no way to be sure that Mr. Indiralingam was aware of the date and time of this motion should he wish to speak to it.
I note that Ms. Sharif also conceded that a return date for the motion was only obtained within the last few days.
Nor was Ms. Sharif able to provide any reassurance that the detailed cell phone records requested from Mr. Indiralingam existed and were within his control.
Mr. Levy's Affidavit in support of the motion makes it clear that Mr. Chuntharalingam is requesting that Mr. Indiralingam "provide the Applicant and the Insurer with his cellular phone records and/or details pertaining to his cellular phone account in order to allow his cellular phone company to release the records."
Given that the date of the Affidavit is July 25, 2006, the motion was set down for July 27, 2006 and the hearing is scheduled to commence on August 3, 2006, I have difficulty understanding how the detailed cell phone records could be identified, copied and released in time for the hearing date. One should also note Rule 39.1 of the Practice Code which provides that all documents to be introduced at the hearing by either party must be served on the other party at least 30 days prior to the first day of hearing.
I reject Mr. Chuntharalingam's request for the third-party production order since:
I am not satisfied that the third party has had a reasonable opportunity to respond;
I am not satisfied that the document sought is in the possession, control or power of the third party;
I am not satisfied that the motion, even if granted, would have any possibility of obtaining the requested documents in time for the scheduled hearing on August 3, 2006;
The delay in taking the necessary steps to initiate this motion when the problem has been known to counsel since the pre-hearing on May 17, 2006.
I note in passing that Mr. Alexander Mazin was at all times counsel of record for the Applicant, not Ms. Sharif, whose name was added in the context of this motion.
Adjournment
The Notice of Motion also identified a request for an adjournment of the arbitration. No alternative dates for an adjournment were given, nor were reasons for an adjournment given.
The Introduction to the Practice Code which governs arbitrations at the Commission, notes that our procedural rules aim to promote "timely, cost-effective and fair dispute resolution services."
The preamble to Practice Note 9, which deals with Adjournments, provides:
The Commission has an obligation to conduct arbitrations efficiently and speedily. Parties are contacted and agree to pre-hearing and hearing dates well in advance of the dates set. Therefore, adjournments are granted only sparingly once dates have been set.
Practice Note 9 further states:
WHEN WILL ADJOURNMENTS BE GRANTED?
Requests for adjournments will only be considered in three circumstances:
in cases of personal emergencies, such as serious illnesses or deaths in the family
for valid reasons relating to the hearing itself, such as an imminent settlement, or medical or other critical evidence that is UNAVOIDABLY delayed
when a lawyer is involved in a trial or other proceeding that was scheduled to conclude before the start of the Commission proceeding and which has continued or been held over into the time scheduled for the Commission proceeding.
WHEN WILL ADJOURNMENTS BE REFUSED?
Adjournments will normally be refused if they do not fall into one of the three categories mentioned above. Common circumstances in which adjournments are refused include the following:
scheduling conflicts for the parties or their lawyers (except for conflicts with pre-set trial dates as noted above)
where the parties have not made reasonable efforts to comply or delayed their compliance with undertakings and orders made at the pre-hearing
where the parties have not made early arrangements to ensure availability of documents or the attendance of witnesses
where parties have not made early arrangements for further medical examinations, assessments or follow-up.
Hearing dates are set on the consent of both parties, and are subject to revision only in cases of personal emergencies, the prospect of imminent settlement, the unforeseen unavailability of critical evidence, or the involvement of counsel in an ongoing proceeding that was scheduled to conclude before the time scheduled for the arbitration. Barring the occurrence of circumstances such as those described above, they are expected to be able to proceed within the agreed time frame. This is consistent with a system that is designed to be "quicker, less expensive and less formal"2 than the courts.
In an arbitration hearing it is expected that production issues will be clarified and resolved prior to pre-hearing. There is also a provision for the production of documentary evidence in the hands of third parties. Given the failure to avail itself of this procedure on a timely basis, and indeed any positive action to compel production in the months following the pre-hearing, I find that it would be inappropriate to adjourn on that basis now.
Ms. Sharif, however, advised at the motion that Mr. Chuntharalingam has now broken his ankle and will be attending at a specialist for a consultation the day prior to the hearing. She believes that he will either not be available, or will be unsuited to proceed with the hearing due to his condition, including the use of painkillers. She had no particulars to provide of the injury, nor of his current state. She certainly had no report from a physician explaining how a broken ankle could prevent Mr. Chuntharalingam from attending the hearing.
Ms. Sharif, however, undertook to give her best efforts to obtain a doctor’s note by 5:00 p.m. Friday, July 27, at the latest.
Given that the hearing is scheduled to start in less than a week, Ms. Sharif's assurances that Mr. Chuntharalingam was indeed indisposed, the availability of a further hearing date on October 17, 2006, and the need to avoid a last-minute adjournment with increased costs thrown away, I grant the adjournment motion notwithstanding the Insurer’s objections.
I make the adjournment subject to the following conditions:
Mr. Chuntharalingam shall bring forward a third-party production motion, in due form, in accordance with Rule 67 of the Practice Code within the next 21 days, or be deemed to have abandoned his request for the cell phone records relating to Mr. Indiralingam.
Mr. Chuntharalingam shall forthwith pay $150 as fixed costs to the Insurer for its preparation and attendance at this last-minute motion.
This adjournment shall be peremptory to Mr. Chuntharalingam.
In the event that Ms. Sharif is unable to provide any medical documentation of Mr. Chuntharalingam's inability to participate in the August 3, 2006 hearing, I remain seised of the issue of any further conditions that may be appropriate to this adjournment.
EXPENSES:
As noted above, I exercise my discretion to award Co-operators its expenses in this preliminary motion which I fix at $150.
July 28, 2006
John Wilson Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 127
FSCO A05-002434
BETWEEN:
CHUPASGARAN CHUNTHARALINGAM
Applicant
and
CO-OPERATORS GENERAL 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:
Mr. Chuntharalingam shall bring forward a third-party production motion, in due form, in accordance with Rule 67 of the Practice Code within the next 21 days, or be deemed to have abandoned his request for the cell phone records relating to Mr. Indiralingam.
Mr. Chuntharalingam shall forthwith pay $150 as fixed costs to the Insurer for its preparation and attendance at this last-minute motion.
This adjournment shall be peremptory to Mr. Chuntharalingam.
July 28, 2006
John Wilson Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Practice Code Introduction at p. 10