Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 209

FSCO A06-001321

BETWEEN:

ADELA HERNANDO

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

PRE-HEARING DECISION

Before: Fred Sampliner

Heard: November 15, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: G. Joseph Falconeri for Ms. Hernando Jamie Pollack for Coachman Insurance Company

Issues:

The Applicant, Adela Hernando, was injured in a motor vehicle accident on February 17, 2001. Her claim for statutory accident benefits from Coachman Insurance Company ("Coachman"), under the Schedule¹, is scheduled for an arbitration hearing December 3 to 6, 2007 at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the pre-hearing, Coachman and Ms. Hernando disagreed about whether she is entitled to see the adjusting notes after the date she filed for mediation.

Result:

Mrs. Hernando is not entitled to Coachman's adjusting notes after the date of her application for mediation.

EVIDENCE AND ANALYSIS:

Ms. Hernando claims in this proceeding that she is entitled to ongoing weekly income replacement benefits² as a result of her accident injuries. She also claims that Coachman acted in a high-handed manner in refusing to pay her claim for continuing benefits after the termination date³ and she is seeking a special award⁴ in addition to other benefits sought.

Ms. Hernando asked for Coachman's complete adjusting notes in order to review the internal decision-making process. It is agreed she can review the notes created to the date of her mediation filing because the principle of litigation privilege does not arise until then. In refusing to produce the post-mediation adjusting notes, Coachman relies on the generally accepted rationale for litigation privilege that a party is entitled to a zone of privacy once it is fairly known legal action is imminent.⁵

In this case, Ms. Hernando does not submit any special facts or circumstances taking this case outside of the Commission's usual approach.⁶ Neither has she provided case law contra-indicating application of the general assumption that she and Coachman were in an adversarial position when she filed for mediation.

Without supporting facts and law, Ms. Hernando's bald claim for a special award does not override the established approach that legal action between Coachman and Ms. Hernando was imminent as of the date of her application for mediation. I find that litigation privilege applies to Coachman's adjusting records at that point because it is likely the dominant purpose was preparation for the conflict. Therefore, I find that Ms. Hernando is not entitled to review Coachman's adjusting notes after the date of her application for mediation, and deny her motion to produce the same at this time.

EXPENSES:

The parties did not claim expenses on this pre-hearing matter.

December 29, 2006

Fred Sampliner Arbitrator

Date