Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 21 FSCO A05-001257

BETWEEN:

MILROY VARATHARAJAH Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

DECISION ON A MOTION FOR PRODUCTIONS

Before: Maggy Murray Heard: Written submissions were received on January 5, January 10 and 12, 2006. Appearances: Dimple Verma for Mr. Varatharajah Karen McGuire for TTC Insurance Company Limited

Issues:

The Applicant, Milroy Varatharajah, was injured in a motor vehicle accident on June 6, 2004. Mr. Varatharajah claims medical benefits for physiotherapy, chiropractic therapy and massage therapy, as well as housekeeping expenses under the Schedule,¹ and a special award against TTC Insurance Company Limited ("TTC"). The parties were unable to resolve their disputes through mediation, and Mr. Varatharajah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issues arose at a pre-hearing discussion held on December 13, 2005. They are whether Mr. Varatharajah is required to produce to TTC the following:

1. A complete copy of his welfare records from one year prior to the accident and ongoing;
2. A complete copy of his employment records from WOW Thermo-Printing for the period June 6, 2004 and ongoing; and
3. His 2004 and 2005 income tax returns.

Result:

1. Mr. Varatharajah shall produce to TTC a copy of the basis for his application for welfare, as well as the medical documents and Ontario Drug Benefits information contained in his welfare file from one year prior to the accident and ongoing.

2. Mr. Varatharajah shall produce to TTC those employment records from WOW Thermo-Printing from one year prior to the accident and ongoing which describe his job duties and hours of employment.

3. Mr. Varatharajah need not produce to TTC his 2004 and 2005 income tax returns.

EVIDENCE AND ANALYSIS:

TTC alleges that Mr. Varatharajah was working at WOW Thermo-Printing at the same time he was collecting welfare. TTC submits that production of the documents requested from Mr. Varatharajah are relevant to his credibility.

Test For Production of Documents:

"The test for production of a document is relevance"² and the "degree of relevance is weighed against other factors such as the sensitivity of the information."³ An arbitrator may order the production of documents "he or she considers relevant to the determination of the issues in the arbitration,"⁴ however, an arbitrator cannot order production of a document that is privileged.⁵ Rule 32.3 of the Code makes it clear that relevance is based upon the issues in the arbitration. Credibility by itself is not a sufficient basis upon which to order the production of documents.⁶

(a) Welfare Records:

Mr. Varatharajah's welfare file may provide information regarding whether he was receiving welfare because of a disability, which is relevant to his claim for medical benefits. The Ontario Drug Benefits information contained in Mr. Varatharajah's welfare file is relevant to what, if any medications (such as anti-inflammatories) he was or is taking, which is also relevant to his claim for medical benefits. Mr. Varatharajah shall produce to TTC a copy of the basis for his application for welfare, as well as the medical documents and Ontario Drug Benefits information contained in his welfare file from one year prior to the accident and ongoing, the cost of which shall be paid for by TTC.

(b) Employment Records:

Mr. Varatharajah's employment records may provide information regarding his physical duties and hours of employment. That information is relevant to his contention that he could not perform his post-accident housekeeping tasks. Mr. Varatharajah shall produce to TTC a copy of employment records from WOW Thermo-Printing which describe his job duties and hours of employment from one year prior to the accident and ongoing, the cost of which shall be paid for by TTC.

(c) Income Tax Returns:

Mr. Varatharajah's income tax returns are not relevant to the issues in the arbitration hearing because they would only establish whether or not he earned income from employment, not his physical capabilities. Production of his income tax returns is not necessary.

EXPENSES:

In view of the mixed degree of success, each side will bear its own expenses for the costs of this motion.

February 2, 2006

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 21 FSCO A05-001257

BETWEEN:

MILROY VARATHARAJAH Applicant

and

TTC INSURANCE COMPANY LIMITED Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.1.8, as amended, it is ordered that:

1. Mr. Varatharajah shall produce to TTC a copy of the basis for his application for welfare, as well as the medical documents and Ontario Drug Benefits information contained in his welfare file from one year prior to the accident and ongoing, the cost of which shall be paid for by TTC.

2. Mr. Varatharajah shall produce to TTC those employment records from WOW Thermo-Printing from one year prior to the accident and ongoing which describe his job duties and hours of employment, the cost of which shall be paid for by TTC.

3. Mr. Varatharajah is not required to produce to TTC a copy of his 2004 and 2005 income tax returns.

4. Each side will bear its own expenses for the costs of this motion.

February 2, 2006

Maggy Murray Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2David and Allstate Insurance Company of Canada at p.3 (FSCO A02-000969, November 1, 2003); Glowinsky v. Stephens and Rankin Inc., [1989] O.J. No. 1388, QL at p.2 (Ont. H.C.J.)
3. 3Allstate Insurance Company of Canada and Al-Obaidi at p.6 (FSCO P99-0009, May 2, 1999)
4. 4Dispute Resolution Practice Code -Fourth Edition ("Code"), Rule 32.3; Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, s.5.4(1)(a)
5. 5Code, Rule 39.3(a); Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, s.5.4(2)
6. 6Glowinsky v. Stephens and Rankin Inc., [1989] O.J. No. 1388, QL at p.2 (Ont. H.C.J.); Y. W. v. L.W., [1994] O.J. No. 1315, QL at p.3, paragraphs 12 and 13 (Ont. Gen. Div.); Rundle v. Kruspe, [1998] O.J. No. 2078, QL at p.4, paragraphs 10 and 11 (Ont. Gen. Div.); Bombardieri v. Baldini, [2003] O.J. No. 4531, QL at pp.3-4, paragraph 10 (Ont. S.C.J.)