Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 72
FSCO A05-001491
BETWEEN:
JAMES OUIMET
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON PRODUCTION OF DOCUMENTS
*Minor error on page 2 corrected on May 26, 2006 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.
Before:
Fred Sampliner
Heard:
Pre-hearing teleconference on February 6, 2006, followed by written submissions received March 10, 30, 31, 2006.
Appearances:
Edmond J. Paquette for Mr. Ouimet
Stephen B. Macaulay for Wawanesa Mutual Insurance Company
Issues:
This preliminary matter arises out of the February 6, 2006 pre-hearing discussion in an arbitration proceeding under the Insurance Act, (R.S.O. 1990, c.I.8, as amended) between the Applicant, James Ouimet, and Wawanesa Mutual Insurance Company ("Wawanesa"). The hearing on the merits of Mr. Ouimet's claims for statutory accident benefits under the Schedule1arising from a July 4, 2003 motor vehicle accident is scheduled to commence September 25, 2006.
This matter concerns Wawanesa's refusal of Mr. Ouimet's request to review its post-mediation adjusting file. Wawanesa was ordered to provide me with its unedited adjusting file for determination, and both parties filed written submissions.
Result:
Mr. Ouimet is entitled to Wawanesa's post-mediation adjusting records except for the entries of May 11, 2005, June 7, 2005, the first 6 lines and last 2 lines of July 12, 2005, July 13, 2005, July 22, 2005, November 9, 10, 25, 28, 29, 30, 2005, and February 6, 15, 20, 2006.
EVIDENCE AND ANALYSIS:
Wawanesa claims 18 portions of its adjusting file post-mediation are privileged communications that are not subject to disclosure because they deal with internal discussions concerning disputed issues. I have applied well-established rules regarding privileged communications to the circumstances of this case.
Litigation privilege protects from production a parties' confidences relating to a legal dispute with another party in that proceeding. Generally, the filing of mediation acts as a convenient dividing point after which parties can reasonably contemplate the disputed claims will not be resolved absent formal legal action. A party claiming litigation privilege has the onus to establish that the dominant purpose of a specific discussion or document concerns the disputed issues in order for it to be protected from disclosure by litigation privilege.2 I recognize that portions of a claim file after the filing date for mediation may relate to the ongoing payment of other first-party benefits, and are not comparatively as sensitive to strategic management of the disputed claims.3
Although Wawanesa objects to producing Mr. Cecil Jaipaul's July 18, 2005 report based on general litigation privilege, the document itself focuses on the ongoing payment and adjusting of Mr. Ouimet's attendant care benefits, which are not in dispute. I find the dominant purpose of the Jaipaul report is not sensitive because it discloses no confidences related to the disputed benefits. It should be disclosed to Mr. Ouimet.
Wawanesa claims that litigation privilege protects its accounting reserves from Mr. Ouimet's discovery. Reserves are estimated amounts assigned by an insurer to account for the total possible future payout of a person's claims arising from an accident, and do not discriminate between the various types of no-fault benefits or time periods.
In my view, evidence about total claims serves little to advance an insured person's claim for the specific benefits, while offering potential to sidetrack the disability or treatment issues. More importantly, I accept that the dominant purpose of a reserve decision is integral to an insurer's assessment of the dispute.4
Most information in Wawanesa's November 10, 2005 "file synopsis" concerns its reserves for Mr. Ouimet's accident. Based on the principal that reserves are integral to decisions in the legal action, I find that the November 10, 2005 summary is subject to litigation privilege, and should not be disclosed to Mr. Ouimet.
The top 6 lines and last 2 lines of the adjuster's July 12, 2005 log note, the second entry for July 13, 2006, the November 9, 25, 28, 29, 30, 2005, February 15 and 20, 2006 notes likewise discuss changes to reserves. I find all of these entries contain confidential internal valuations of the disputed claims to which litigation privilege applies, and should not be disclosed to Mr. Ouimet.
However, litigation privilege does not attach to the middle portion of Wawanesa's July 12, 2005 log note because the primary discussion is about ongoing payment of Mr. Ouimet's non-disputed accident benefits. I find that litigation privilege does not attach to the mid-portion of the July 12, 2005 entry, and it should be disclosed to Mr. Ouimet.
I agree with Wawanesa's assertion that its May 11, 2005 and June 7, 2005 adjuster entries are privileged communications because these record internal strategic discussions concerning the parties pending litigation. I find the May 11, 2005 and June 7, 2005 entries are confidences subject to the protection of litigation privilege, and should not be disclosed to Mr. Ouimet.
The adjuster's July 22, 2005 comments about the Jaipaul report discusses the pending disputed benefits. Therefore, I find the July 22, 2005 log note respecting litigation strategy is a confidence subject to privilege.
The principal of solicitor/client privilege protects communications bearing legal advice in order to foster confidence within the professional lawyer/client relationship. I find that the February 6, 2006 conversation between Wawanesa's lawyer and its adjuster concerning matters in this arbitration is protected by solicitor/client privilege, but that the March 9, 2005, July 14, 2005, August 29, 2005 and January 26, 2006 entries describing Wawanesa's assignment of its defence to legal counsel is not a sensitive matter to which any privilege applies because I assume Mr. Ouimet already knows the information. The February 6, 2006 entry should be deleted from the adjusting record, but the latter 4 entries should be available to Mr. Ouimet.
EXPENSES:
The issue of expenses for this motion is deferred to the arbitrator who conducts the hearing.
May 11, 2006
Fred Sampliner
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 72
FSCO A05-001491
BETWEEN:
JAMES OUIMET
Applicant
and
WAWANESA MUTUAL 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:
Wawanesa shall provide its complete adjusting record to Mr. Ouimet excluding the following entries: May 11, 2005, June 7, 2005, first 6 lines and last 2 lines of July 12, 2005, July 13, 2005, July 22, 2005, November 9, 10, 25, 28, 29, 30, 2005, February 6, 15, 20, 2006.
Expenses of this matter are deferred to the hearing.
May 11, 2006
Fred Sampliner
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Graper and Liberty Mutual Fire Insurance Company (FSCO A00-000133, July 20, 2001), Campeau and Liberty Mutual Insurance Company (FSCO A00-000522, March 12, 2001), Nelson and Liberty Mutual Insurance Company (FSCO A00-000253, February 16, 2001)
- Wachmenko and Primmum Insurance Company (FSCO A04-001086, December 16, 2004)
- Griscti and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A01-000471, October 5, 2001), Samoila v. Prudential of America General Insurance Company (2000) 2000 CanLII 22690 (ON SC), O.J. No. 2746, July 14, 2000