Commission des services financiers de l'Ontario

Neutral Citation: 2006 ONFSCDRS 170

FSCO A06-000984

BETWEEN:

DORVAL LEDOUX

Applicant

and

FEDERATED INSURANCE COMPANY OF CANADA

Insurer

PRE-HEARING DECISION

Before:

Eban Bayefsky

Heard:

By telephone conference call on September 28, 2006.

Written submissions were received on September 20, 2006.

Appearances:

Moi Vienneau for Mr. Dorval Ledoux

John J. Aikins for Federated Insurance Company of Canada

Issues:

The Applicant, Dorval Ledoux, was injured in a motor vehicle accident on April 11, 1999.

He applied for and received statutory accident benefits from Federated Insurance Company of Canada ("Federated Insurance"), payable under the Schedule.¹ Federated Insurance terminated weekly income replacement benefits on January 11, 2004. The parties were unable to resolve their disputes through mediation, and Mr. Ledoux 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 on September 28, 2006, Federated Insurance sought an order for the production of the reports of Dr. Stewart and Dr. Snow (from the tort file) and the raw data upon which they relied, or an order that these materials be produced to an expert as advised by the Insurer.

The issues are:

Is Mr. Ledoux required to produce the reports and raw data of Dr. Stewart and Dr. Snow?

Result:

Mr. Ledoux shall produce the reports and raw data of Dr. Stewart and Dr. Snow.

EVIDENCE AND ANALYSIS:

Mr. Ledoux objected to the Insurer's request essentially on the basis that the Insurer had had ample opportunity to obtain its own medical reports (and had, in fact, done so), that the Insurer had not established that its current reports (and specifically the ones upon which it relied to terminate benefits) were insufficient and that, in light of the implied undertaking rule, the Insurer should not be permitted to benefit from a court proceeding to which it was not a party.

Mr. Ledoux argued that the cases upon which the Insurer relied (Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO A99-000957, December 4, 2003), Vossos and Western Assurance Company, (FSCO A04-001072, September 9, 2005) and Snook and ING Insurance Company of Canada, (FSCO A02-000728, September 15, 2003)), all of which ordered the production of certain tort documents, were distinguishable primarily on the basis that the Insurer in this case had not established that its current medical information was insufficient or that it would be unfair to deny the Insurer access to the tort reports.

The noted caselaw establishes that an arbitrator must determine whether to order the production of the requested tort documents having regard to the relevance of the material sought, the sufficiency of the insurer's current evidence (and its ability to obtain its own information through the Commission's processes), the impact of ordering production on the arbitration (specifically, whether it would unduly complicate or prolong the proceeding), the relative prejudice to the parties of ordering production and the Commission's need to have the best evidence before it.

Mr. Ledoux acknowledged that, while the reports in question were only prepared in the context of the tort action, he provided them to some of the doctors in the arbitration (for example, Dr. Paulseth and Dr. King) for their review and comment.

I find that Federated Insurance is entitled to the reports and raw data of Drs. Stewart and Snow. The reports are directly relevant to the neurological and psychological aspects of Mr. Ledoux's claim for income replacement benefits beyond the 104-week mark. By importing the reports of Drs. Stewart and Snow into the arbitration process, Mr. Ledoux has waived any right to deny the Insurer access to these materials, particularly since the doctors upon which Mr. Ledoux relies in this arbitration specifically refer to and comment on Dr. Stewart's and Dr. Snow's reports (after having been provided these reports by Mr. Ledoux).

While Federated Insurance may benefit from having access to these reports (and while, in that sense, there may be a dual purpose to the Insurer's request), I agree with the Insurer's submission that, in light of the considerable role these documents play in the reports of Drs. Paulseth and King, the Insurer should have access to Dr. Stewart's and Dr. Snow's materials in order to properly respond to Dr. Paulseth's and Dr. King's evidence, including cross-examining them at the hearing, if necessary.

While the Insurer's current medical evidence may not, in itself, be insufficient, I find that it would be prejudiced by being denied access to these materials, particularly since Mr. Ledoux, and the doctors upon which he relies, have had the benefit of considering this information. Subject to any determinations on admissibility, the hearing Arbitrator may benefit from having this information before them in order to properly understand and assess the comments and conclusions of some of Mr. Ledoux's experts. I see no evidence to the effect that ordering production will unduly delay or complicate the arbitration proceeding.

I, therefore, order Mr. Ledoux to produce to Federated Insurance the reports and raw data of Dr. Stewart and Dr. Snow.

EXPENSES:

The parties did not address the issue of expenses. This matter is reserved to the hearing Arbitrator.

November 3, 2006

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario