Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 198 FSCO A03-001091

BETWEEN:

JULIE ANNE WILSON Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS, PRODUCTION OF DOCUMENTS AND DIRECTIONS

Before: John Wilson

Heard: By telephone conference call on September 22, 2006. Written submissions were received on June 23, August 31, November 3 and November 8, 2006

Appearances: Guy A. Hurtubis as amicus curiae. Mrs. Wilson on her own behalf. R.W. Howard Lightle for TD Home and Auto Insurance Company

Issues:

The Applicant, Julie Wilson, was injured in the same serious motor vehicle accident on April 27, 1997 that killed her husband. She applied for statutory accident benefits from TD Home and Auto Insurance Company ("TD"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Wilson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mrs. Wilson has now brought a motion, pursuant to section 67 of the Dispute Resolution Practice Code, for a variety of relief including further interim benefits

This motion is for the following relief:

1. a production order that TD produce its file including correspondence with its solicitors from the date of the Application for Mediation to date,

2. an increase in her interim income replacement benefit (IRB) payment,

3. an interim order for certain medical and rehabilitation benefits, as well as

4. an order that the Insurer not be permitted to rely on the Algoma Physical Rehabilitation post 104 DAC, the report of Dr. Upton and the report of Dr. Walsh,

5. unspecified litigation expenses due to this motion.

Result:

1. Mrs. Wilson is not entitled to a production order that TD produce its file including correspondence with its solicitors from the date of the Application for Mediation to date.

2. Mrs. Wilson is not entitled to an increase in her interim IRB payment.

3. TD shall pay interim benefits for certain medical expenses effective June 5, 2006 in the amount of $782.42 per month, payable until the completion of the substantive hearing or until the end of April 2007, the ten-year anniversary of the accident, whichever comes first.

4. Mrs. Wilson is not entitled to an order that the Insurer not be permitted to rely on the Algoma Physical Rehabilitation post 104 DAC, the report of Dr. Upton and the report of Dr. Walsh.

5. The issue of litigation expenses due to this motion is left to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Adjournment

This matter was adjourned on June 5, 2006 at the request of Mr. Lightle, counsel for TD (Liberty). At the time I wrote to the parties:

Further to the earlier correspondence received from both Mr. Lightle and Mrs. Wilson, I have now received a further letter from Mr. Lightle indicating that he will not be available for the current hearing dates due to his father's terminal illness. I accept that, under the circumstances, this is a valid reason for adjourning this arbitration. It will also, however, provide an opportunity for the parties to address the outstanding issues of production, as well as the formal addition of the corollary issues raised by Mrs. Wilson.

As suggested by all parties, there should be a resumption of the pre-hearing to deal with these matters, and the scheduling of new dates, preferably in July. Such a resumption could be arranged in person if that would offer a significant efficiency over a teleconference. In terms of having the matter brought on quickly however, a teleconference may offer more flexibility in dates. I leave the parties to work out possible dates for the resumption with the case administrator. If no agreement is forthcoming by July 9, 2006, I will reserve the right to order a new date for the resumption.

Following further correspondence on the issue of the adjournment I noted:

Further to the correspondence received from all the parties and Mr. Hurtubise following the interim adjournment order in this matter, it is clear that there are significant challenges in reaching any agreement as to the date and the manner of the ultimate hearing of this matter.

I framed the adjournment itself as follows:

For the time being, I will order that the conditions attached to the current adjournment continue until the date scheduled for the resumption, when parties may address that issue. Should Mrs. Wilson intend to bring forward the request for interim medical benefits identified in her May 26, 2006 letter at the pre-hearing resumption, she must comply with the provisions of Rule 67 of the Dispute Resolution Practice Code, and bring this request in motion format if she wishes to have that issue addressed at the resumption.

No agreed date for the resumption was set. In the interim Mrs. Wilson served and filed her claim for further interim benefits in the appropriate format.

I also noted in correspondence that "Mr. Hurtubise has now advised of his difficulties in fulfilling his appointed role as "friend of the court" given the likelihood that the hearing of this matter will likely not finish until well into 2007."

The parties were given until July 9 to set a date for a teleconference. If the parties could not provide a reasonable agreed alternative, I would set a default date for the teleconference to proceed on August 11, 2006.

I also ordered that Mr. Lightle file any responding documents to Mrs. Wilson's motion for further interim benefits at least two weeks prior to the August 11 date, or the agreed alternative date.

Mr. Lightle then advised that he could not attend the August 11 date due to his absence from the office for his wedding, and that there was no-one available to take his place. I agreed to re-schedule the motion hearing for September 22, 2006, while continuing the original interim income benefit order until then.

At the motion hearing and resumed case conference held by teleconference on Friday, September 22, both sides had filed motions to be heard.

Mrs. Wilson moved for certain production orders, an increase in her interim IRB payment, an interim order for certain medical and rehabilitation benefits, as well as an order that the Insurer not be permitted to rely on the Algoma Physical Rehabilitation post 104 DAC, the report of Dr. Upton and the report of Dr. Walsh, as well as for certain, unspecified costs.

TD Home (Liberty), in turn, filed a cross-motion for certain productions as well as its costs in this motion.

In addition, there were outstanding issues arising from the adjournment in this matter in June, including, the new date or dates for the hearing, the conditions, if any, to be placed on the adjournment and the potential discharge of the lawyer appointed as "friend of the court" to assist Mrs. Wilson.

The Friend of the Court and Accommodation in the hearing process

Mrs. Wilson, who is unrepresented in this process, has always maintained that she is entitled to formal accommodations within the hearing process. She asserts that, as a person suffering from brain injury, she has the right to have a "facilitator" present and active in the hearing process on her behalf.

Originally, Ms. Champaigne, a long-term acquaintance, was put forward in the role of "facilitator." Her participation, however, was rejected by Arbitrator Renahan, on the grounds that Ms. Champaigne was closely involved in the claim and would be a necessary witness in the matter. That decision was upheld by the Director of Arbitrations on appeal.

Later on in the process, Mrs. Wilson put forward the alternative idea of appointing Guy Hurtubise, her lawyer in a related tort matter, as a "friend of the court" to assist in presenting the legal issues from the Applicant's perspective during the arbitration process.

Although this was an unusual request, in my decision dated March 10, 2006 I noted:

Given the complexity of this matter, the expressed desire, and indeed the absolute right of Mrs. Wilson to not retain counsel, I accept that it is both necessary to protect the rights of the parties to a fair process and useful to the efficient proceeding of this matter to appoint an amicus curiae.

That such a move was appropriate in this situation was confirmed by the Divisional Court which found:

In our view, Arbitrator Wilson has dealt with the issue of accommodation, adopting the applicant's own words in granting the level of accommodation she sought to provide a level playing field at the arbitration hearing.²

Following the unexpected adjournment of the arbitration in June, however, Mr. Hurtubise asked that he be relieved of his obligations of "friend of the court" as he intended to be on sabbatical for much of the upcoming year. He noted that he had consented to this appointment based on the holding of the hearing in June 2006. He is neither in the country nor available for the February 2007 hearing dates.

With the consent of both Mrs. Wilson and counsel for Liberty/TD, Mr. Lightle, I accepted that Mr. Hurtubise should be relieved of his responsibilities as friend of the court.

Following my oral decision on the "friend of the court" Mrs. Wilson again raised the possibility of Ms. Champaigne acting again in the role of "facilitator" in the absence of Mr. Hurtubise's assistance.

I advised Mrs. Wilson at the time that I do not accept that either the role of "friend of the court" or the qualifications to be so named are in any way akin to a "facilitator" as conceived by Mrs. Wilson and Ms. Champaigne. While both roles potentially address elements of Mrs. Wilson's claimed disability, a "friend of the court" as a barrister, and an officer of the court entails certain responsibilities toward the tribunal and the process that are not encompassed by a "facilitator."

As well, Ms. Champaigne remains barred from participating in this process in any other way than as defined by the order of Arbitrator Renahan.

I noted that Ms. Champaigne's role in this matter has been the subject of both an arbitration order, and an appeal order, not to mention an order of the Divisional Court. Even if I were tempted to make such an order, I have no jurisdiction to override the above orders which restricted Ms. Champaigne's role to that of witness in these proceedings.

Mrs. Wilson has since filed materials requesting that Mrs. Jill Stevens be appointed as a "facilitator." While the role of "facilitator" itself may indirectly have been addressed in the decisions by Arbitrator Renahan and Director Draper, neither the pre-hearing letter nor the record make any specific reference to Mrs. Stevens appearing as either a treatment provider or as a potential witness.

I note however that Mr. Lightle's submissions appear to class Mrs. Stevens as either witness or counsel, in the same category as Ms. Champaigne. While there may be similarities, there is no evidence on the record to support a conclusion that Mrs. Stevens will be a necessary witness in this matter, and consequently no support for barring her from being present at any part of the hearing.³

Mrs. Stevens' right to be present at the hearing, whether to lend moral support to Mrs. Wilson or merely out of interest in the proceedings, does not however translate to a right to speak at the arbitration, address the tribunal in any way, or present evidence or otherwise participate in the hearing process. Nor does it mean that she is entitled to be a "facilitator" as she and Mrs. Wilson envisage that role.

The use of the word "facilitator" has raised some significant problems in this arbitration and others. To Mrs. Wilson, the use of a "facilitator" is an accommodation akin to the provision of an interpreter, in that a "facilitator' may assist a brain-injured person in expressing him or herself, prompt responses, and assist the individual in framing questions and answers. As an assistive service, such facilitation is not without some controversy since it interposes another person between the witness and his or her interlocutor.

There is no provision for facilitation in either the Practice Code, which governs hearings at the Commission, nor in the Rules of Civil Procedure, which govern matters before the courts.

In another matter involving the proposed use of Ms. Champaigne as a "facilitator", I noted some of the problems raised by the use of a "facilitator" to mediate testimony:⁴

It must be presumed that Ms. H.I., being capable of testifying, is the best and most reliable source of information relating to her own memories, thoughts and recall. If during examination-in-chief the witness requires "prompting" and "advocacy" to enable her to retrieve information from her memory, then, perhaps that is an appropriate role for counsel acting within the framework of the rules of evidence and the practice at quasi-judicial hearings. [footnote omitted]

Anyone is entitled to ask a family member, as defined by the regulation, to represent him or her at the Commission. Mrs. Stevens is not a family member. Anyone may retain a lawyer, or hire a SABS Representative to represent him or her at a hearing. Mrs. Stevens is neither.

While a request to have the assistance of a trusted friend and support person present during the hearing may be accepted by a hearing arbitrator, the active involvement of such a support person would be subject to the approval and the conditions set by the hearing arbitrator.

While I have no doubt that an arbitrator would attempt to give effect to the party’s choice of a support person, that choice, however, cannot be seen to impede or obstruct the arbitration process. I have no evidence before me that would suggest that Mrs. Stevens would be a particularly good candidate for such a support person, whatever laudable personal attributes she may have. On the other hand she enjoys the apparent personal confidence of Mrs. Wilson.

Another consideration also enters into play in considering the appropriateness of allowing Mrs. Stevens an active role in these proceedings. Mr. Hurtubise mentioned in an off-hand matter that both Mrs. Stevens and Ms. Champaigne are law clerks employed by his firm. Were either to represent Mrs. Wilson in this forum, Mr. Hurtubise or a lawyer in his firm would have to undertake a supervisory responsibility.⁵ This would not appear to be what is proposed in this case.

It would be inappropriate to allow the active participation of someone who might appear to be taking an end-run around the consumer protection provisions put in place to ensure a measure of competence and professionalism amongst those who appear at arbitrations.⁶

Should Mrs. Stevens be clearly supervised as a law clerk by a lawyer who acknowledges direct supervisory responsibility for training and conduct, including financial responsibility for any misfeasance or malfeasance and who is retained by Mrs. Wilson then perhaps this issue might be decided differently. Indeed, both parties and the hearing process might benefit if Mrs. Wilson retained legal counsel, with or without a law clerk to supervise.

In the absence of such reassurance, Mrs. Stevens' participation in this matter remains at best that of friend/assistant to Mrs. Wilson without the right to become directly involved in the proceedings, question witnesses or make submissions.

Timing and Structure of the Hearing:

Prior to hearing the motions we dealt with setting the date for the hearing. The parties agreed that the hearing should take place in Sudbury commencing February 26, 27, 28 and March 1 and continuing on March 5, 6, 7 and 8, 2007.

As noted in my correspondence at the time, the issue of bifurcating the hearing remained an open question due to my concerns whether the extensive subject-matter of this hearing can be covered efficiently in the allotted time. The continuation of Mrs. Wilson's status as a self-represented litigant combined with the removal of the amicus curiae from the process has heightened my concerns.

Given the absence of professional counsel to assist Mrs. Wilson in the preparation of her case, and the wide-ranging and complex issues at play, I have decided that the hearing to commence on February 26, 2007 will deal with solely the issue of whether Mrs. Wilson sustained and continues to sustain an impairment arising from the motor vehicle accident which took place on April 27, 1997.

I make this order based on Rule 31 of the Dispute Resolution Practice Code which provides that:

Where an arbitrator considers it appropriate, or where the parties agree and the arbitrator approves, the Dispute Resolution Group will notify the parties in writing that an Application for Arbitration in Form C is to be divided into distinct issues to be heard separately.

As well, this issue is a pre-condition of any claim for indemnity under the Schedule, and an issue that to judge from the record is controversial. Indeed, my impression is that dealing with this issue first may well obviate the need for a lengthy hearing of all the subsidiary entitlement issues, since all are dependent on this controverted pre-condition.

I find as well that the severance of this issue will likely result in the "most just, quickest, and least expensive resolution of the dispute" as provided for in Rule 1.1 of the Practice Code and will significantly simplify the hearing process. It goes without saying that should it be necessary to proceed on the remaining issue, the same arbitrator will be seised of the matter.

Admission of Certain Documents at the Hearing

With regard to Mrs. Wilson's request that the Insurer not be permitted to rely on the Algoma Physical Rehabilitation post 104 DAC, the report of Dr. Upton and the report of Dr. Walsh, I leave such a determination to the hearing arbitrator who alone can rule on what may be admitted in a process before him or her.

Interim Medical Expenses

At the outset of the motion hearing, Mr. Lightle advised that the Insurer would consent to an interim benefit order for certain medical expenses, to continue until the completion of the substantive hearing or until the end of April 2007, the ten-year anniversary of the accident, whichever comes first. As with the first interim order, all benefits would be re-payable by Mrs. Wilson should she ultimately not be successful in her claim.

The amount agreed to by way of interim medical and rehabilitation benefit that should be payable is $782.42 per month, payable effective June 5, 2006, the date of the adjournment order.

Quantum of IRB

I find no compelling reason to order that the quantum of the interim income replacement benefit be increased pending the hearing. Should there be a greater entitlement than is presently paid Mrs. Wilson will have an opportunity to address that issue at the hearing. The interim weekly income replacement benefit remains payable at the rate of $231.81.

Production Issues

When this motion was first received I commented that "The substantial requests for further production made by Mrs. Wilson at this hearing are unsettling, given that Mrs. Wilson claimed to be ready to proceed when the issue of this adjournment was being heard in June."

Once the written submissions were received from Mrs. Wilson concerning her requested productions I gave counsel for TD time to respond.

The further documents claimed by Mrs. Wilson involve, among others, the documents created by TD since the application for arbitration, including correspondence to and from Mr. Lightle, TD's counsel.

As noted, TD has claimed both litigation privilege and solicitor and client privilege in support of its refusal to produce the documents produced after the application for mediation. It points to the date of the application for mediation as the presumptive date for a claim of litigation privilege to arise.

In this matter, Mrs. Wilson has claimed that neither litigation privilege nor solicitor-client privilege will attach to post-mediation documents since, in her view, Mr. Lightle has been involved in "adjusting the file." I note that Mr. Lightle denies acting outside the traditional solicitor-client role, and that he is not employed by TD as in-house counsel.

It is possible that a lawyer acting in a role outside of a traditional solicitor-client role may trigger a disclosure obligation in relation to those activities. As Major J. noted in Pritchard⁷:

Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.

Besides relying on Mr. Lightle’s supposed activities adjusting the file, Mrs. Wilson also relies on the special nature of the first-party insurer-client relationship as displacing privilege. As Master Clark noted in Nikeas:

This is an accident benefit action. It is not a tort action. The plaintiff and defendant (insured and insurer respectively) are bound together by obligations and responsibilities until it can be said that to one or the other the prospect of litigation between them is clear.⁸

The Court of Appeal in Plaza Fiberglass⁹ made it clear, however, that a relationship of utmost trust, such of that between a first-party insurer and its insured does not automatically translate directly into a fiduciary duty. Drawing from Lac Minerals¹⁰, Robins J.A. found that the pre-conditions for the existence of a fiduciary obligation were as follows:

(1) The fiduciary has scope for the exercise of some discretion or power;

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

While the duty of utmost good faith in insurance matters may include some of the elements noted above, the element of discretion and scope of discretion in an accident benefit claim are significantly different than in a true fiduciary arrangement.

In a policy of insurance, an insurance company is obliged to make specified payments upon the happening of a specified event. It has no discretion akin to that of a trustee's right to encroach on the capital of a trust where circumstances warrant.

In the accident benefit context, what might be characterized as discretion is in reality the obligation to make a determination as to whether the prerequisites to a payment under the policy have been met. Such a determination cannot be made on a whim. It is dictated by the contract and the existence or not of the factual situation triggering the payment of the indemnity. I find no reason to characterize the insurer/insured relationship in this matter as a fiduciary relationship.

Nor do I accept that Mrs. Wilson has produced any convincing evidence of conduct by Mr. Lightle that would amount to adjusting the file. The apparent suggestion by TD that she contact counsel (Mr. Lightle) to deal with her claim when the matter was under litigation suggests to me that the Insurer was being cautious about Rule 6:03(7) of the Rules of Professional Conduct of the Law Society, and not that Mr. Lightle was necessarily acting as an adjuster.

While my decision refusing further documentary discovery is principally based on the timing of the request, as discussed below, I will also briefly address Mrs. Wilson's argument that in accordance with Wachmenko¹¹ the Insurer has the onus of proving that any document withheld due to privilege is indeed properly subject to either litigation or solicitor-client privilege, and that the documents should be produced because it has not done so. I note that there are key differences between this case and Wachmenko.

Essentially the decision in Wachmenko arose from a failure to abide by an order that the equivalent of an affidavit of production be produced. In this matter, there has been no such order, and no basis for making one. Mrs. Wilson has provided no credible evidence that would suggest that documentary discovery should proceed beyond the traditional demarcation point. Consequently, the Insurer is not put to the burden of justifying its claim for privilege each and every document produced after the Application for Mediation.

Perhaps a more important element from the point of view of the arbitration process, is the timing of Mrs. Wilson's request for further productions. As noted earlier, in the context of the arguments concerning the June adjournment in this matter, Mrs. Wilson stated repeatedly that she was ready to proceed with the arbitration at that time. Since the adjournment was only for personal reasons on the part of Mr. Lightle, both sides indeed should have been ready to proceed at that time.

While the Practice Code does not specifically provide for a certificate of readiness¹², an analogy to litigation once a certificate of readiness has been filed would be appropriate. Barring extraordinary circumstances, the documentary discovery process should not be re-opened once the parties have indicated that they are ready to proceed to trial. On this point, R. E. Holland, J. stated¹³:

I agree with Master Davidson that there has been no such change in circumstances as would warrant vacating the certificate of readiness to permit the examination for discovery of this one defendant. As was said by Galligan, J., in the unreported decision of Nobrega v. Boyd, in which reasons for judgment were released on February 23, 1973: "When Rule 246 was amended it was intended to be taken very seriously and the signing of a certificate is a very serious matter." In my view, before any certificate of readiness is vacated to permit further interlocutory proceedings or discovery, there should be a substantial and unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust.

While there may be an ongoing obligation in the arbitration to update and continue to disclose the existence of relevant evidence as it becomes available, allowing routine new production requests until the very eve of arbitration can only unnecessarily delay and complicate an arbitration process that is meant to be both expeditious and cost-effective.

Arbitrator Blackman commented in Levin¹⁴ that:

Arbitration should not be a "make work" project. The overall result of clearly defined but sensibly flexible guidelines has been that pre-hearing discussions have been more productive and conducive in moving the parties towards a voluntary or imposed resolution of the substantive issues in dispute, rather than routinely dealing with the same types of time consuming procedural motions in case after case. Dispute resolution should have its eye on resolving disputes, not creating them.

In my mind, re-opening the discovery process at this time is just the sort of "make work" project that Arbitrator Blackman had in mind.

Since Mrs. Wilson has brought forward no new and compelling evidence of a change in circumstances, I find no reason to accept her claim for further productions from TD.

Likewise, TD may not re-open productions at this time.

EXPENSES:

The question of expenses is deferred to the hearing arbitrator.

December 18, 2006

John Wilson Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 198 FSCO A03-001091

BETWEEN:

JULIE ANNE WILSON Applicant

and

TD HOME AND AUTO 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:

1. TD shall continue to pay Mrs. Wilson interim income replacement benefits in the amount of $231.81 per week pending the hearing of this matter.

2. TD shall pay interim benefits Mrs. Wilson for certain medical expenses effective June 5, 2006 in the amount of $782.42 per month, payable until the completion of the substantive hearing or until the end of April 2007, the ten-year anniversary of the accident, whichever comes first.

December 18, 2006

John Wilson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Wilson v. Ontario (Financial Services Commission) [2006] O.J. No. 1420
3. 3Pursuant to section 9 of the SPPA all arbitration hearings are presumptively open to the public unless ordered closed for the reasons outlined in the Act.
4. 4H.I. and Aviva Canada Inc. (FSCO A02-001766, November 12, 2004)
5. 5"'Lawyers' employees are also exempt, provided they act only under the direct supervision of a lawyer who is retained, or whose law firm is retained, by the claimant." -Bulletin No. A-06/03 Property & Casualty, issued by the Superintendent of Financial Services, November 1, 2003.
6. 6Non-lawyer representatives for compensation must now be registered with the Commission, carry errors and omissions insurance and maintain the standards of practice set out in the Code of Conduct for Statutory Accident Benefit Representatives. (ibid)
7. 7(supra)
8. 8Nikeas (Litigation Guardian of) v. Dominion of Canada General Insurance, (supra)
9. 9Plaza Fiberglass Manufacturing Ltd. v. Cardinal Insurance Co. 1994 CanLII 653 (ON CA), 18 O.R. (3d) 663
10. 10International Corona Resources v. Lac Minerals 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574
11. 11Wachmenko and Primmum Insurance Co. (Canada Life), (FSCO A04-001086, December 16, 2004).
12. 12See Rule 48.04 of the Rules of Civil Procedure provides that a party that sets an action down for trial shall not initiate any motion without leave of the court.
13. 13Kovary v. Heinrich et al. (1974), 1974 CanLII 784 (ON HCJ), 5 O.R. (2d) 365
14. 14Levin and Security National Insurance Co./Monnex Insurance Mgt. Inc. (FSCO A06-000257, September 8, 2006).