Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 221

FSCO A07-001067

BETWEEN:

JEAN MARC SERRET

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

Before: John Wilson

Heard: October 16, 2007, in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario. Written submissions were received on October 29, and November 1, 2007.

Appearances: Adam Wagman for Mr. Serret Robert W. Kerkmann for Motor Vehicle Accident Claims Fund Written submission from Chris Diana counsel for the OPP, received October 29, 2007.

Issues:

The Applicant, Jean Marc Serret, was catastrophically injured in an accident involving an ATV on June 3, 2003. He applied for statutory accident benefits from Motor Vehicle Accident Claims Fund (“MVAC”), payable under the Schedule.¹ MVAC Fund resisted payment of certain benefits based on unresolved issues surrounding the accident itself. Due to the nature of his injuries, Mr. Serret was unable to provide the necessary information to resolve the questions raised by MVAC.

The parties were unable to resolve their disputes through mediation, and Mr. Serret applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on October 16, 2007, it became evident that both parties in order to address the issues raised in this claim would require access to the records arising out of the investigation of the incident by the Ontario Provincial Police (“OPP”). Both parties indicated that it was their understanding that, to date the OPP had not produced any of its records relating to its investigation. The policy of the OPP apparently is that they will not release any records without a court order.

MVAC brought this motion for production of the OPP records relating to Mr. Serret’s ATV accident.

The issues are:

Is MVAC entitled to production, from the Ontario Provincial Police, of “(A)ll of the their records including records that exist in electronic format only that relate to the motor vehicle accident giving rise to the no-fault motor vehicle accident benefits claim of Jean Marc Serret, which accident occurred on June 23, 2003 in Minden Township, including, without limitation, unedited statements of witnesses and of persons involved in the accident, records of interviews or questioning by the police, police field notes, memo books memoranda reports, accident reconstruction records, photos, diagrams, sketches and records of convictions.”?

Result:

MVAC is entitled to production of “(A)ll of the their records including records that exist in electronic format only that relate to the motor vehicle accident giving rise to the no-fault motor vehicle accident benefits claim of Jean Marc Serret, which accident occurred on June 23, 2003 in Minden Township, including, without limitation, unedited statements of witnesses and of persons involved in the accident, records of interviews or questioning by the police, police field notes, memo books memoranda reports, accident reconstruction records, photos, diagrams, sketches and records of convictions,” subject to the redactions contained in the letter of Chris Diana, counsel for the OPP, dated October 29, 2007.

EVIDENCE AND ANALYSIS:

The Ontario Provincial Police records jointly requested by Mr. Kerkman and Mr. Wagman, on behalf of their respective clients are identified in the motion materials as:

(A)ll of the their records including records that exist in electronic format only that relate to the motor vehicle accident giving rise to the no-fault motor vehicle accident benefits claim of Jean Marc Serret, which accident occurred on June 23, 2003 in Minden Township, including, without limitation, unedited statements of witnesses and of persons involved in the accident, records of interviews or questioning by the police, police field notes, memo books memoranda reports, accident reconstruction records, photos, diagrams, sketches and records of convictions.

There appears to be no question that Mr. Serret, through his legal representative, has provided his consent to the OPP for the release of documents related to the ATV accident.

There appears to be no question between the parties as to the relevance of the requested documents. They deal with the pith and substance of the dispute between the Insurer and Mr. Serret: the location and mechanism of the accident, and its surrounding circumstance, evidence that would not be available from Mr. Serret.

The parties are also agreed that no charges arose out of the ATV accident and that the OPP file referred to in this motion does not form part of a crown brief as identified in D.P. v. Wagg.²

The OPP, to date has raised the issue of the Freedom of Information and Protection of Privacy Act (FIPPA) as a bar to any disclosure without a court order. It has not, however, provided any particulars as to the specific provisions of this complex act that it relies on. Nor has the OPP advanced any claim for privilege in these documents.

The fundamental principle set out in the Freedom of Information and Protection of Privacy Act is set out below:

Right of access

10(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,

(a) the record or the part of the record falls within one of the exemptions under sections 12 to 22; or

(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious. 1996, c. 1, Sched. K, s. 1.

The right of access to personal information is subject to the overrides contained in section 10 (2) none of which refer to either the Police Services Act³(PSA) or to police operations in general. As well, pursuant to section 19 of FIPPA:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

FIPPA is not the only legislative enactment dealing with police information. Sections 80 and 95 of the PSA also use clear wording to ensure the confidentiality of information obtained in the course of police operations, but specifically only in the context of internal investigations and complaints. The Act is silent as to the confidentiality of other information obtained in the course of police duties.

While such silence could be an oversight, it is more likely quite intentional on the part of the legislature. There is a vast range of information necessarily gathered in the course of police work. Much would not be inherently sensitive information. Even relatively innocuous information could well have an inhibiting effect on ongoing investigations or prosecutions if it provided a hint of police intentions in a matter. While such cases should be caught by FIPPA’s section 19 exemption, the courts also have been active in the area of the protection of sensitive police information.

While the FIPPA now clearly governs the release of information in a non-litigation situation, the courts have jealously guarded their right to access all relevant information, not subject to privilege in the context of litigation. The traditional approach as stated by Cory J.A. in Cook v. Ip has been:⁴

There is an inherent jurisdiction in the court to ensure that all relevant documents are before it. The court requires this jurisdiction in order to determine properly and fairly the issues between the parties.

He went on to cite Rand J. in R v. Snider:⁵

The prohibition of the statute is against disclosure to other staff charged with the assessment but since the public interest in the administration of justice transcends that of any individual in the details of his ledger account, the ban is to be taken to be directed against a voluntary disclosure only and has no application to judicial proceedings. The intervention of the minister, as would be that of the person himself, is therefore ineffectual.

Cook v. Ip was decided long before FIPPA was ever conceived. The courts however have, post FIPPA, continued to jealously guard their wide-ranging jurisdiction to order or refuse production in the context of litigation.

G.D. Lane J in Big Canoe observed:⁶

Wagg in the context of the use of the brief in civil proceedings. Equally, sections 14 and 19 of FIPPA are confined within their Act; they offer no protection in the civil litigation context: that is the preserve of the courts…

The purposes and imperatives of FIPPA are quite different from those of a court determining the access which the parties will have to documents necessary to do justice in a particular case. The kind of discretionary power in the head to withhold access, embodied in section 19, has its place in dealing with requests from the public generally, but is unacceptable when the interests of justice require the documents to be available. The court must be the final arbiter in such a case.

Legislation to guide the courts in dealing with documents in the hands of third parties is available to supplement the common law.

The Rules of Civil Procedure, a regulation under the Courts of Justice Act also provides a foundation for court orders dealing with the production of documents and records in the hands of persons or institutions who are not parties to an action before the courts.

Rule 30.10 of the Rules of Civil Procedure provides as follows:

The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action;

and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document. R.R.O. 1990, Reg. 194, r. 30.10 (1).

Notice of Motion

A motion for an order under subrule (1) shall be made on notice,

(a) to every other party;

and

(b) to the person not a party, served personally or by an alternative to personal service under rule 16.03. R.R.O. 1990, Reg. 194, r. 30.10 (2).

I am satisfied that a judge of a superior court in Ontario would have jurisdiction to deal with a request to produce a police file, such as that requested by the parties in this arbitration, and, if appropriate, to order its production.

An arbitrator in an accident benefits dispute, however, is not a judge, and this matter is not before the courts. That is not to say, however, that the requested order is beyond the jurisdiction of an arbitrator. Although the accident benefit arbitration is a creature of statute⁷, and the arbitrator is restricted to the exercise those powers directly or implicitly granted by the relevant

statutes, there are two important foundations for the needed jurisdiction.

Section 22(1) of the Insurance Act provides as follows:

Proceedings before Director or arbitrator

For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990,

As a result of this unusual provision, an arbitrator, once appointed to a matter, is endowed with all the powers vested in a judge of the Superior Court, with regard to compelling the appearance of witnesses and the production of documents records and things. The use of the word “vested” would appear to incorporate by reference the powers of the judiciary arising from both the common law and statute, whether the Courts of Justice Act or the relevant sections of the Rules of Civil Procedure.

Arbitrations being an exercise of a statutory power of decision which is subject to the Statutory Powers Procedure Act (“SPPA”), there is a second foundation for a production order in this matter.

Section 12(1) of the SPPA provides:

A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing;

and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal

While the section refers only to production of evidence at a hearing, there are other provisions that extend the reach of this power to the pre-hearing process. Section 25.1(1) of the SPPA provides that “A tribunal may make rules governing the practice and procedure before it.” In the case of Insurance Act arbitrations which take place under the umbrella of the Financial Services Commission of Ontario, the Dispute Resolution Practice Code provides such rules.

Rule 67, permitting production orders against non-parties is expressed as follows:

Where a party seeks an order for production against a person who is not a party to the proceeding ("third party"), the party making the request must serve the materials required under Rule 67.3, upon the third party and file it together with a Statement of Service in Form F.

Within 10 days of being served, the responding party and third party, if any, must: (a) serve a written response and documents to be relied on; and (b) file a copy of the written response and documents. The adjudicator may determine the request on the basis of the documents and written submissions filed, or in such manner as the adjudicator considers appropriate. Before making an order for the production of documents against a third party, the adjudicator shall be satisfied that: (a) the parties have made reasonable efforts to obtain the document sought; (b) the document sought is in the possession, control or power of the third party; (c) the third party has had a reasonable opportunity to respond; (d) the document is reasonably required to ensure a just and fair hearing.

I am satisfied that Rule 67 of the Code is an alternative grounding for an order to produce documents from a third party.

In examining similar provisions under the SPPA, Morden J.A. has observed:

It is generally agreed that if documents under the control of non-parties are important to the fair and accurate resolution of issues it is preferable that they be produced before the hearing to avoid almost inevitable adjournments if they are produced for the first time at the hearing (see s. 39(4) of the Human Rights Code) and to enable each side to prepare its case more effectively. In this regard s. 2 of the Statutory Powers Procedure Act (which provides that the Act and rules made under it "shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits") may be of assistance in interpreting s. 5.4(1)(e) in a way that would support pre- hearing disclosure from third parties.⁸

Obviously, any such disclosure would have to be exercised in the light of the common law, including the law of privilege.⁹

As noted earlier, there is no dispute that the documents requested are potentially relevant, and indeed, necessary to both parties to proceed to arbitration in this matter. There is no question that the documents are in the hands of the OPP, that they do not form part of a crown brief or a litigation brief, and that proper notice has been given to the OPP of the request for production. No privilege has been claimed in these documents by the police or any party.

I am satisfied that the criteria for third party production under both Rule 30.10 of the Rules of Civil Procedure and Rule 67 of the Dispute Resolution Practice Code have been met. Consequently I am of the view that the documents can and should be ordered produced, and I do so in the exercise of my powers to order the production of “documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions.”

Counsel for the OPP has submitted that, although it will not consent to any production order it would request that certain “redactions” be allowed to be made prior to the release of the documents. These would include certain personal details of a witness, and identity information relating to friends and relatives of Mr. Serret. The O.P.P. also indicates that it intends to remove material in the file that is “completely unrelated to the motor vehicle accident.”

There is no objection from either of the statutory parties to this arbitration to the redactions proposed by the counsel for the O.P.P.

Too often in accident benefit matters we sometimes venture too far into condoning unneeded intrusions into the private lives of parties and others, even where such information is at best tangentally relevant. In this matter I see little that could be considered relevant in the proposed redactions, especially in light of the judicial comments in Wagg. Consequently, I see no reason to go behind these proposed redactions. My only proviso would be that any redactions made should be clearly marked as such and that should further information come to light, these redactions may be re-visited.

I remain seized of this matter however in the event that further disputes arise to this documentation.

EXPENSES:

Given the reasonable positions taken by all parties to this motion, and the efficient manner in which it was handled, I see no compelling reason to address the issue of costs at this time.

November 13, 2007

John Wilson Arbitrator

Date