Neutral Citation: 2007 ONFSCDRS 165 FSCO A06-001745

BETWEEN:

DEBORAH LEMON Applicant

and

AVIVA CANADA INC. Insurer

DECISION ON PRELIMINARY ISSUES

Before: Judith Killoran Heard: By telephone conference call on August 14, 2007.

Appearances: David S. Wilson for Ms. Lemon Robert H. Rogers for Aviva Canada Inc.

Issues:

The Applicant, Deborah Lemon, was injured in a motor vehicle accident on June 27, 2000. She applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ Ms. Lemon is now claiming a catastrophic designation under the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Lemon applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The parties had disputes about production issues. Consequently, a preliminary issue hearing before me was scheduled for August 14, 2007 at 9:00 a.m.

The preliminary issues are:

Is Ms. Lemon obliged to sign an authorization for the production of her long-term disability file?
Must Ms. Lemon produce her property damage documentation?
Must Ms. Lemon produce her motor vehicle accident report?
Must Ms. Lemon produce her employment file?

Result:

Ms. Lemon consented to production of her long-term disability file. Mr. Wilson undertook to make his best efforts to obtain, by August 29, 2007, Ms. Lemon's signed authorization for her long term disability file.
Ms. Lemon shall not produce her property damage documentation.
Ms. Lemon shall not produce her motor vehicle accident report.
Ms. Lemon shall not produce her employment file.

SUBMISSIONS:

Ms. Lemon was injured in an accident on June 27, 2000. Aviva has been paying income replacement benefits to her for more than seven years. Also, Ms. Lemon's housekeeping claim was paid to the 2-year limit.

Ms. Lemon is claiming a "catastrophic" designation under clause 1.1(g) of the Schedule which states:

For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs before October 1, 2003 is, subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

Ms. Lemon has been paid income replacement benefits by Aviva on the basis that she meets the test outlined in subsection 5(2)(b) of the Schedule that "as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience." Aviva submits that the issue of how the accident has affected Ms. Lemon requires a before and after picture in order to determine whether and where she fits on the scale for a catastrophic impairment. For that reason, Aviva submits that Ms. Lemon's employment file is relevant, as is her property damage documentation and motor vehicle accident report.

Ms. Lemon submits that the Catastrophic Designated Assessment Centre assessors did not think that her employment file was relevant or necessary in order for them to give an opinion about her status. As well, Ms. Lemon argues that her property damage documentation and motor vehicle accident report have no relevance to her claim for a catastrophic designation.

ANALYSIS:

An arbitrator has many sources of authority for ordering the production of documents relevant to a proceeding. Section 22 of the Insurance Act provides arbitrators with the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions.

Rule 32.3 of the Dispute Resolution Practice Code (DRPC) also gives an arbitrator power to order the production of documents. Rule 32.3 states that an arbitrator may at any time order the production of documents or the giving of information considered relevant to the determination of the issues in the arbitration, on such terms as the arbitrator considers appropriate.

Based on the DRPC, I have the power to order the production of documents which I determine are relevant to the proceedings. However, this power is subject to solicitor-client and litigation privilege.

Section 15 of the Statutory Powers Procedure Act grants arbitrators the jurisdiction to admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any oral testimony and any document or thing relevant to the subject matter of the proceeding.

Some of the factors which I have considered in ruling on the production of the requested documents are the following:

Preserving the integrity of the dispute resolution process at FSCO;
The relevance of the documents;
The sufficiency of the existing documents in the insurer's possession;
Whether the documents will complicate or unduly prolong the arbitration proceeding;
Any prejudice to the parties; and
Need for the best evidence.

I find that Aviva, by continuing to pay income replacement benefits to Ms. Lemon, has conceded that she has met the test for a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. I find that property damage documentation and a motor vehicle accident report from seven years ago are not relevant to these proceedings.

Ms. Lemon's employment file from more than seven years ago might have had relevance several years ago if Aviva disputed Ms. Lemon's entitlement to post-104 week income replacement benefits. However, in the present circumstances, the issue is whether Ms. Lemon meets the catastrophic designation found in subsection 1.1 (g) of the Schedule which requires a finding of a class 4 or class 5 impairment, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, due to mental or behavioural disorder. I find that production of Ms. Lemon's employment file would not assist in resolving this question.

Consequently, Ms. Lemon need not produce her property damage documentation, her motor vehicle accident report or her employment file.

EXPENSES:

I exercise my discretion to award Ms. Lemon her expenses incurred in this preliminary issue hearing.

August 30, 2007

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario