Neutral Citation: 2007 ONFSCDRS 156 FSCO A05-000779

BETWEEN:

D. F. Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION ON A MOTION

Before: Jeffrey Rogers Heard: By telephone conference call on July 30, 2007.

Appearances: Ms D.F., in person Ian D. Kirby, solicitor for Wawanesa Mutual Insurance Company

Issues:

The Applicant, D.F.,¹ brought a motion for the following:

An order requiring Wawanesa to pay for the cost of the transcript of the evidence from the 2006 Arbitration hearing between the parties, given by herself, Mr. Tim Votskos, Mr. M. P., Mr. Bruce Reilly, Dr. James Rennie and Dr. Kaminska.
An order requiring Wawanesa to produce its entire accident benefits file.
An order requiring Wawanesa to produce its Policy and Procedure Manual.
An order requiring Wawanesa to produce a copy of the applicant’s medical file at Riverfront Medical.

Result:

Ms F’s request for an order requiring Wawanesa to pay for a transcript is denied.
Ms F’s request for an order requiring further production of Wawanesa’s file is denied.
Ms F’s request for an order for production of Wawanesa’s Policy and Procedure Manual is denied.
Wawanesa shall produce to Ms F, at its expense, a copy of her medical file from Riverfront Medical.

EVIDENCE AND ANALYSIS:

Background

Ms F was injured in a motor vehicle accident on October 13, 2002. She applied for and received statutory accident benefits from payable under the Schedule.² Wawanesa denied entitlement to income replacement benefits and various medical/rehabilitation benefits. The parties were unable to resolve their disputes through mediation, and Ms F applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

An arbitration hearing on those issues was held in January and February 2006 and a decision was issued on August 23, 2006. Ms F appealed the decision. In the appeal, Ms F requested an order requiring Wawanesa to pay for the transcript from the arbitration. Director’s Delegate Evans denied the request.

In September 2006, Ms F filed a new Application for Arbitration, based on a further mediation that took place in June 2006. I held a pre-hearing on January 18, 2007. Wawanesa raised the defense of res judicata with regard to many of the claims in the new application. The only disputed production request identified at the pre-hearing was a request by Ms F for a payment summary, which Wawanesa agreed to provide. I scheduled the hearing to start on September 24, 2007.

Ms F wrote to the Commission on July 18, 2007, requesting a date for hearing this motion.

I decided that the motion should be heard by way of a telephone conference. Upon being informed by the Case Administrator that Ms F claimed to be disadvantaged when participating by telephone and was reluctant to disclose her telephone number for the proposed conference call, I agreed to proceed with Ms F attending at the Commission, while Wawanesa participated by telephone. The motion was heard in that way.

Transcripts

Ms F seeks on order requiring Wawanesa to pay for a transcript of certain evidence from the 2006 arbitration. She proposes to use the transcripts as evidence in the upcoming arbitration.

She submits that proceeding in that way would assist the parties in focusing on the issues and therefore it would be the quickest and lease expensive way to proceed. She proposes to achieve this result by highlighting the important elements of the witnesses’ evidence in the transcript. Wawanesa would then be free to cross-examine on the relevant matters.

I pointed out to Ms F section 15.1(1) of the Statutory Powers Procedure Act which provides as follows:

The tribunal may treat previously admitted evidence as if it had been admitted in a proceeding before the tribunal, if the parties to the proceeding consent.

I asked whether she relied on any authority for her proposed use of previously admitted evidence, where the parties do not consent. Without referring to any specific provision, she submitted that the Dispute Resolution Practice Code confers wide jurisdiction on Arbitrators.

Wawanesa gave three reasons for resisting Ms F’s request. First, Director’s Delegate Evans decided this issue in refusing the request for an order requiring Wawanesa to pay for the transcript, in the appeal. Second, except for Mr. Votskos, Wawanesa’s adjuster, the evidence was given by witnesses who supported Ms F’s claim. It could therefore only be used for the purpose of cross-examining those witnesses in the upcoming arbitration. Third, the evidence could only be relevant to the issues in the previous arbitration and is therefore irrelevant to the only matters which are properly the subject of this arbitration.

I do not agree that the Director’s Delegate decided this issue. That decision related only to the use of the transcript for the appeal. It does not address the issue before me. I also do not agree that the evidence can only be relevant to the issues in the 2006 arbitration. However, recognizing that the ultimate decision on the admissibility of evidence rests with the hearing arbitrator, I find no jurisdiction to admit the transcripts into evidence for the purpose that Ms F proposes. For that reason, Ms F’s request is denied. I find nothing in the Dispute Resolution Practice Code, the Insurance Act, or the Schedule that erodes the specific restriction in section 15.1(1) of the Statutory Powers Procedure Act on the use of previously admitted evidence. I make this ruling without resolving the question of why Wawanesa and not Ms F, should pay for the transcripts at this stage of the proceeding. I heard no submissions on that issue.

Accident Benefits File

Ms F sought production of Wawanesa’s complete accident benefits file. Wawanesa indicated that the file has already been produced and was entered as Exhibit 49 in the 2006 arbitration. Ms F then indicated that she was really seeking production of entries in the file from that arbitration to the present. Wawanesa indicated that all new entries in file are correspondence and communication between Wawanesa and its solicitors regarding the appeal, the expense hearing and this arbitration, and are therefore protected from disclosure by solicitor/client privilege.

Ms F submitted that the onus was on Wawanesa to prove the claim for privilege.

I ruled orally that, although I accepted Ms F’s submission on onus, I was not prepared to embark on the document by document analysis of Wawanesa’s file, required to determine the claim for privilege, when the request for production was being made for the first time six months after the pre-hearing and on the eve of the arbitration hearing.

Policy and Procedure Manual

Wawanesa indicated that no such document exists. Ms F did not challenge that assertion.

Ms F’s request for its production is therefore denied.

Riverfront file

Wawanesa indicated that, although Ms F did not earlier seek production of this file, it was prepared to produce it, at Ms F’s expense, subject to its availability in time for the hearing.

Ms F requested that the file be sent by Riverfront to the Commission, and not Wawanesa, because she was not confident that she would receive a complete copy from Wawanesa. Wawanesa’s solicitor indicated that the file would come to him and he believed that his professional obligation required him to provide Ms F with an entire copy.

I ruled orally that I was not prepared to change the usual practice of exchange of documents between parties, based on Ms F’s concern, which is not uncommon for applicants. I indicated that the completeness of Ms F’s copy could be explored in the hearing and that the hearing arbitrator could impose the appropriate sanction, should it prove to be incomplete. I ruled that the file should be produced at Wawanesa’s expense, subject to further order by the hearing arbitrator.

EXPENSES:

The parties made no submissions on expenses. I reserve the issue to the hearing Arbitrator. However, should the parties resolve the matter without a hearing but are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

August 13, 2007

Jeffrey Rogers Arbitrator

Financial Services Commission of Ontario