Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 4

FSCO A05-000686

BETWEEN:

MARINA POSSYSSAEVA

Applicant

and

PRIMMUM INSURANCE CO.

Insurer

INTERIM MOTION DECISION

Before:

John Wilson

Heard:

By telephone conference call on December 9, 2005. Written submissions were received on December 12 and 15, 2005.

Appearances:

Alon Rooz and David Levey, Student-at-law, for Ms. Possyssaeva Lorraine Takacs for Primmum Insurance Co.

Issues:

The Applicant, Marina Possyssaeva, claimed to have been injured in a motor vehicle accident on April 7, 2003. She applied for statutory accident benefits from Primmum Insurance Co. ("Primmum"), payable under the Schedule.¹ Primmum declined to pay Ms. Possyssaeva benefits. The parties were unable to resolve their disputes through mediation, and Ms. Possyssaeva applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The position that the Insurer took at the pre-hearing was that Ms. Possyssaeva materially misrepresented facts about the accident, allowing it to decline payment of benefits pursuant to section 48 of the Schedule. It based this claim on an alleged discrepancy between the statement provided by Ms. Possyssaeva as to the circumstances of the accident and that provided by the truck driver who was implicated in the incident.

In the pre-hearing letter dated November 8, 2005, I made the following order:

The Insurer, in its documentation has alleged that Ms. Possyssaeva engaged in a material representation with respect to this claim as defined by section 47 of the Schedule. If Primmum intends to rely upon this defence it shall serve and file a revised Response, prior to the resumption of this pre-hearing on December 9, 2005, providing full particulars of the conduct alleged, including copies of any statements relied upon, failing which it may not rely upon the alleged misrepresentation. [bold emphasis in original]

Following the December 9 pre-hearing I wrote "In accordance with my order, Primmum has filed a revised Response and has stated that it continues to rely upon the alleged misrepresentation." It did not, however, file copies of any statements relied upon as constituting the alleged material misrepresentation. Mr. Rooz, however, is content that the Insurer be allowed to raise this issue.

Since the allegations, if proven, will have the consequence of defeating all of Ms. Possyssaeva's claim for accident benefits, I ordered that the issue of material misrepresentation be dealt with well before the scheduled arbitration dates.

At the December 9 pre-hearing the Insurer mentioned and Ms. Possyssaeva confirmed that criminal or quasi-criminal charges had been laid arising out of the accident. Ms. Possyssaeva and her counsel were, however, unwilling to provide details of the charges, the date of the hearing, or the disposition of the matter. Counsel for Ms. Possyssaeva, however, did not wish the arbitration to be delayed pending the resolution of any charges.

Primmum has since requested copies of materials routinely used in the Crown brief, since it believes that these would be relevant to the allegations it has raised of material misrepresentation. More specifically, it has requested a complete copy of the police officer's notes, the summary contained in the Crown brief, as well as a copy of the charges allegedly filed against Ms. Possyssaeva

The issues are:

Is Primmum entitled to the production of the Crown brief in a related criminal matter?

Result:

Primmum must comply with the protocol outlined in D.P. v. Wagg to compel production of materials contained in a Crown brief.

EVIDENCE AND ANALYSIS:

The interaction of criminal and civil proceedings has long been recognized as problematic. Criminal and quasi-criminal charges may have serious consequences for those charged. If convicted they can be subject to fines or imprisonment, or both.

While section 13 of the Charter has the effect of precluding the use of evidence given by a person in a civil proceeding or civil discovery against the person in a criminal matter, there remain concerns about proceeding with civil matters while criminal charges arising out of the same circumstances are pending.² These concerns include potential breaches of the rule against self-incrimination. (It is, notwithstanding section 13, still possible to use evidence from a civil process in the context of prosecution for perjury, or for the giving of contradictory evidence.)³

A second concern is the risk of inconsistent findings of fact between the two processes.⁴ It would be odd if, on a balance of probabilities, a civil court or an administrative tribunal made a finding that the factual elements of misrepresentation were not made out if a criminal process, examining the same facts, found, in the face of a higher onus of proof, that they were.⁵

The public has an interest in seeing that a prosecution is conducted fairly without compromising the rights of an accused. It also has a reasonable expectation that the ability of the Crown to prosecute an individual for an offence against public order should not be unnecessarily impeded by the involvement of the parties in concurrent civil proceedings.

Given the public interest in a criminal process, contemporaneous involvement in a civil process driven only by the parties may also raise questions of how the public interest may be addressed in a civil process that directly involves only two parties, none of whom represents the public.

This is precisely the point raised by the Insurer's request for production of the Crown brief in this matter. Typically, a Crown brief may contain a variety of documents, including "will say" statements of potential witnesses, statements of the accused and others, as well as police notes and statements. They may also include information about third parties, medical practitioners or wiretap surveillance.

Section 32.4 of the Dispute Resolution Practice Code provides that:

An arbitrator may at any time order the production of any document 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.

Given the potential content of a Crown brief, it would be likely that the contents would meet the relevancy test for production at least with regard to the allegation of material misrepresentation. As Mr. Levey has pointed out, however, there are other considerations that must be taken into account before ordering production of the materials contained in a Crown brief.

The Court of Appeal in D.P. v. Wagg⁶ examined the procedures that need to be taken when a request for the disclosure of a Crown brief is made in the context of a civil action. The Divisional Court and then the Court of Appeal supported the creation of a screening mechanism to prevent abuse and to allow the public interest in the integrity of the criminal investigation process to be addressed. Both courts held that the party in possession of the Crown brief must disclose its existence, but that the documents are not to be produced without either the approval of the agency involved (the Attorney General and or the police service), or a court order obtained on notice to the relevant agency.

Ms. Possyssaeva relies on Wagg and on practice at the Commission relating to production orders made against third parties to argue that Primmum has not followed the appropriate procedure. She also argues that the probative value of the Crown brief would be far outweighed by the prejudice to Ms. Possyssaeva's arbitration if the contents of the brief are produced.

I accept the submission that Wagg should govern requests for production of a Crown brief. Even in cases such as N.G. v. Upper Canada College⁷, where portions of the Crown brief were ordered disclosed in a civil matter, the screening method set out in Wagg was applied, and the Attorney-General was given both notice and standing to argue the public interest in non-disclosure. There is no reason that practice at the Commission should diverge from that standard.

I do not accept, however, that the issue of prejudice is so clear at this point that the documents should be ordered not produced. Given the default in arbitration that anything relevant and probative that is not subject to a privilege should be produced, such an argument is better addressed to the admissibility of the documents in question at a hearing.

Having accepted that Wagg defines the appropriate procedure in this matter, I note that Rosenberg J.A. started his analysis with the obligation of the defendant to disclose the existence of the Crown brief in his affidavit of documents.

In this arbitration, although there has been no order to date for the creation of an affidavit of documents, counsel for Ms. Possyssaeva has been tight-lipped about any information it may have as to the existence of criminal or quasi-criminal proceedings, let alone the contents of any Crown brief, if such is in their possession.

I find that, if Primmum wishes the production of materials in the Crown brief, it must follow the procedures set out in Wagg, as well as the provisions of Rule 67.4 of the Dispute Resolution Practice Code. However, the real starting point is for Ms. Possyssaeva to provide some basic information as to the nature of the charges filed against her, the date of the hearing, and their disposition. This is necessary not only from the point of view of facilitating productions but also of addressing the possibility of inconsistent findings discussed earlier.

Ms. Possyssaeva must also provide a listing of any materials from the Crown brief that may be in her hands. Without such fundamental information it is impossible to begin the analysis of what is producible or not. Ms. Possyssaeva shall have 7 days from the date of this decision to serve and file a statement containing this information.

Should Primmum wish to proceed with its motion for production of the Crown brief it shall have a further 7 days to serve and file an amended motion in compliance with the provisions of Wagg. This will mean, of course, service of the motion on the Crown, and the police service involved in the process. Counsel may contact the Commission to obtain a date for the motion.

Ms. Possyssaeva and any interested parties shall have a further 7 days to serve and file any responding motion materials.

The parties, in their materials, may wish to address the question of what limits should be imposed on the use and dissemination of any such documents, as well as their arguments on the production or otherwise of this Crown brief.

EXPENSES:

Given the interim nature of my order, I leave the question of expenses to a later date.

January 11, 2006

John Wilson Arbitrator

Date