Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 15
FSCO A05-000755
BETWEEN:
AARON URETSKY
Applicant
and
AVIVA CANADA INC.
Insurer
PRE-HEARING DECISION
Before:
Anne Sone
Heard:
October 20, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Altaf Khan for Mr. Uretsky
Todd J. McCarthy for Aviva Canada Inc.
Issues:
The Applicant, Aaron Uretsky, was injured in motor vehicle accidents on December 24, 2002 and March 15, 2003. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva terminated medical benefits for chiropractic treatment. The parties were unable to resolve their disputes through mediation, and Mr. Uretsky 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 October 20, 2005, the parties were unable to resolve the following production issue. At that time I made an oral ruling, with written reasons to follow.
The issue is:
- Is Aviva entitled to production of the file, if any, of the collateral benefit carrier, Equitable Life pertaining to Mr. Uretsky, and the applicable group contract of insurance?
Result:
- Aviva is entitled to production of the collateral benefit carrier, Equitable Life's file pertaining to Mr. Uretsky, and the applicable group contract of insurance.
ANALYSIS:
Mr. Uretsky claims payment for chiropractic services provided by Chiropractic Wellness Centre from December 24, 2002 to July 14, 2003, in the amount of $2,855.87 and from July 1 to October 17, 2003 in the amount of $2,105.05. These amounts are set out in two Mediator's Reports, both dated March 3, 2004.
At the time Mr. Uretsky was injured in the first motor vehicle accident on December 24, 2002, he was employed on probation as a customer service representative. His employer had a group contract of insurance with Equitable Life. On March 26, 2003, shortly after the second motor vehicle accident, he was laid off from this employment.
At a pre-hearing discussion held on October 20, 2005 at the Financial Services Commission of Ontario, Aviva sought production of the collateral benefit carrier, Equitable Life's file regarding Mr. Uretsky, and the group contract of insurance. For reasons set out below, Mr. Uretsky refused to produce these items.
Aviva's Submissions
Mr. Uretsky indicated that he was taken by surprise by Aviva's request for these productions. In response, Aviva stated that Mr. Uretsky was aware that his medical benefits were subject to any collateral benefits he might receive.
In the Application for Accident Benefits (OCF-1/59), prepared by Mr. Uretsky, under Part 9, Other Insurance or Collateral Payments, Mr. Uretsky checked off the Answer "No" to the Question: "Do you, your spouse or anyone you are dependent on have any other benefit plan that covers you (eg. Group or private, union, disability, medical or dental, etc.)?
In response to Mr. Uretsky's Application for Accident Benefits, Aviva sent a form entitled Explanation of Benefits Payable by Insurance Company (OCF-9/59) ("Explanation of Benefits"). Under Part 5, Aviva stated as follows:
In a covering letter dated January 30, 2003 from Aviva to Mr. Uretsky, accompanying the Explanation of Benefits, Aviva stated the following:
All invoices must be submitted by you, or on your behalf, to any group health insurer that may be available to you personally or through a family member. Any expenses that are not covered or denied may then be submitted to us along with an explanation of the amounts paid or denied by your group insurer.
Aviva subsequently learnt that Mr. Uretsky's employer had group coverage through Equitable Life, and sought production of the file and contract as it pertains to Mr. Uretsky. Aviva wishes to know if Mr. Uretsky had applied or should have applied for collateral benefits with Equitable Life, and what, if any, was the result. This information impacts the issues outstanding at the arbitration.
Mr. Uretsky's Submissions
Mr. Uretsky stated that this production request is a ruse on the part of Aviva to attempt to forestall a settlement of the amounts owing. He alleges that this production request is made in bad faith. In Mr. Uretsky's view, it shows a willingness on the part of Aviva to circumvent the process by putting forward legal arguments that are not on the table. Mr. Uretsky submits that this request for production and the related issue should have been properly dealt with at an earlier date, and is now foreclosed. The argument that Mr. Uretsky should have sought payment from his collateral benefits coverage was not presented to the Mediator, and is not in the Insurer's Response to the Application for Arbitration. Accordingly, Mr. Uretsky submits that it not properly before the pre-hearing arbitrator.
One of the purposes of the pre-hearing is to identify the issues for arbitration. According to Mr. Uretsky, these issues cannot extend beyond the limits of the proceedings that preceded the Mediations. In Mr. Uretsky's opinion, neither of the Mediator's Reports bring up a question of such nature. Mr. Uretsky states in his Application for Arbitration that he doesn't know if he has coverage for collateral benefits, (since he was a probationary employee at the time of the accidents).
Conclusion
Mr. Uretsky alleges that these production requests are improper and made in bad faith because Aviva has not raised this issue in the Mediator's Reports. He also points out that Aviva has delayed in making this request.
Subsection 5.3(1) of the Statutory Powers Procedure Act ("SPPA"), sets out what may be dealt with at a pre-hearing conference. Subsection 5.4A(1)(a) of the SPPA gives the tribunal the power at any stage of the proceeding, before all hearings are complete, to make orders for the exchange of documents.
Arbitrators under these provisions have the power to order disclosure of relevant documents until all hearings are complete.
Further, pursuant to Rule 32.2 of the Dispute Resolution Practice Code, (Fourth Edition, updated October 2003), the parties have an ongoing responsibility to ensure the prompt and complete exchange of documents that are reasonably necessary to determine the issues being arbitrated.
Under Rule 32.3, "an arbitrator may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate." (My underlining.)
In addition, pursuant to Rule 33.1, an arbitrator at a pre-hearing discussion will assist the parties to prepare for arbitration by:
(c) deciding any disputes relating to the identification and exchange of documents, making orders and setting time lines for the exchange of outstanding documents;
In my view, Mr. Uretsky's coverage by a collateral benefit carrier is a sub-issue of his claim for a medical benefit for chiropractic services. Mr. Uretsky himself indicated in his Application for Accident Benefits that he did not have collateral coverage. In fairness to Mr. Uretsky, he states that he was on probation with his employer at the time he filled out this form, and did not think he was covered. Further, Mr. Uretsky received correspondence from Aviva setting out that his benefits would be subject to collateral benefit coverage. As a result, I find that Aviva has provided sufficient proof that the issue of collateral benefits has been previously raised in their Explanation of Benefits and covering letter dated January 30, 2003. I am not prepared to prevent them from continuing with this defence at this time.
As an arbitrator at the Financial Services Commission of Ontario, I have a wide discretion to order production of documents that are relevant to the proceedings. In my view, the documents that Aviva is seeking are relevant. If there are collateral benefits that Aviva is entitled to deduct, these may affect the calculation of the medical benefits Mr. Uretsky is entitled to claim. Accordingly, I order Mr. Uretsky to produce the collateral benefit carrier, Equitable Life's file pertaining to Mr. Uretsky, and the applicable group contract of insurance.
January 27, 2006
Anne Sone
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 15
FSCO A05-000755
BETWEEN:
AARON URETSKY
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Uretsky produce to Aviva Canada Inc. his file with the collateral benefit carrier, Equitable Life, and the applicable group contract of insurance.
January 27, 2006
Anne Sone
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.