Neutral Citation: 2007 ONFSCDRS 229 FSCO: A06-001134

BETWEEN:

ALEXANDRU HERCZOG Applicant

and

NORDIC INSURANCE COMPANY OF CANADA Insurer

MOTION DECISION

*On consent of the parties, correction made on December 4, 2007 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Anne Sone Heard: October 26, 2007, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario, and written submissions received on November 21, 2007.

Appearances: P. Michael Rotondo for Mr. Herczog Elissa Boyle for Nordic Insurance Company of Canada

Issues:

The Applicant, Alexandru Herczog, was injured in a motor vehicle accident on June 14, 2004. He applied for and received statutory accident benefits from Nordic Insurance Company of Canada ("Nordic"), payable under the Schedule.¹ Nordic terminated weekly income replacement benefits on March 7, 2006. Nordic also denied some medical benefits and the costs of two assessments claimed by Mr. Herczog. The parties were unable to resolve their disputes through mediation, and Mr. Herczog applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A motion was brought in this case returnable in person on October 26, 2007 to compel production from third parties. The Applicant, Mr. Herczog, consented to Nordic obtaining orders for production against the third parties.

The issues are:

Is Nordic entitled to production of clinical notes and records pertaining to Mr. Alexandru Herczog from Allied-Med Trauma Evaluations, Dr. Markus, Dr. Kaye, Regain Health, Dr. Leventhal, Dr. Kushnir and Dr. Whetstone, at reasonable photocopying costs?
Is Nordic entitled to production of the social assistance files pertaining to Mr. Alexandru Herczog in the records of Toronto Social Services, in the possession of the City of Toronto, at reasonable photocopying costs?

Result:

Nordic is entitled to production of clinical notes and records pertaining to Mr. Alexandru Herczog from Allied-Med Trauma Evaluations, Dr. Markus, Dr. Kaye, Regain Health, Dr. Leventhal and Dr. Kushnir, at reasonable photocopying costs.
Nordic is entitled to production of the social assistance files pertaining to Mr. Alexandru Herczog in the records of Toronto Social Services, in the possession of the City of Toronto, at reasonable photocopying costs.

Rules:

Rule 67 of the Dispute Resolution Practice Code (Fourth Edition, updated October 2003) (the "Code") sets out an adjudicator's authority to make interim orders within a proceeding.

Pursuant to Rule 67.4 of the Code, 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.

Rule 67.5 states that the third party must serve and file its written response within 10 days of being served.

Under Rule 67.6, an adjudicator may determine the request on the basis of the documents and written submissions filed, or in such manner as he or she considers appropriate.

Rule 67.7 of the Code sets out the requirements for obtaining a production order against a third party. In order to do so, I must 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;

(d) the document is reasonably required to ensure a just and fair hearing.

Outstanding Productions:

Ms. Melodie Snowdon, a law clerk with Bell, Temple, solicitors for the Insurer, swore an affidavit dated October 12, 2007. In it she sets out the efforts that have been made to obtain the documents that the Insurer is seeking from various third parties.

Allied-Med Trauma Evaluations and Dr. Markus

In a letter dated December 1, 2006, Ms. Katherine E. Kolnhofer, solicitor for the Insurer, sent authorizations signed by Mr. Herczog to Allied-Med and Dr. Markus asking them to release the clinical notes and records pertaining to the Applicant.

Dr. Markus performed an evaluation of Mr. Herczog at Allied-Med. As they did not provide their records, Ms. Snowdon sent letters dated February 20, 2007 and March 12, 2007, repeating the request that Allied-Med and Dr. Markus forward their clinical notes and records pertaining to the Applicant. As the Insurer's request was ignored, Ms. Kolnhofer sent a further letter, dated July 23, 2007 repeating the request that Allied-Med provide their records. In this letter, Ms. Kolnhofer advised that if the clinic did not provide their records, she would have no other alternative but to bring a motion. Up to the date that Nordic brought its motion, Allied-Med and Dr. Markus had not provided their records, nor otherwise responded.

Dr. Herbert Kaye

In letters dated December 1, 2006 and December 15, 2006, Ms. Kolnhofer sent Dr. Herbert Kaye an authorization signed by the Applicant, to release the clinical notes and records pertaining to the Applicant.

As there was no response to these letters, Ms. Snowdon sent further letters dated February 20, 2007 and March 12, 2007, repeating the request to Dr. Kaye to forward his clinical notes and records pertaining to the Applicant.

As Dr. Kaye did not provide his clinical notes and records, Ms. Kolnhofer sent a further letter dated July 23, 2007, reminding him of the Insurer's repeated requests for his records. In this letter, Ms. Kolnhofer advised that if Dr. Kaye did not provide his records she would have to bring a motion. Up to the date that Nordic brought its motion, it had not received the clinical notes and records of Dr. Kaye, pertaining to the Applicant, nor received any response.

Regain Health, Dr. Leventhal, Dr. Markus and Dr. Kushnir

In a letter dated December 1, 2006, Ms. Kolnhofer sent Regain Health an authorization signed by the Applicant, to release the clinical notes and records pertaining to him. The request specifically asked the clinic to provide the clinical notes and records of Dr. Leventhal, Dr. Markus and Dr. Kushnir, who treated the Applicant at Regain Health. I note that Dr. Markus also treated the Applicant at Allied Med.

As Ms. Kolnhofer did not receive a response to her letter, Ms. Snowdon sent letters dated February 20, 2007 and March 12, 2007, repeating the request to Regain Health to forward its clinical notes and records and those of Dr. Leventhal, Dr. Markus and Dr. Kushnir pertaining to the Applicant.

As the request continued to be ignored, Ms. Kolnhofer sent a further letter dated July 23, 2007 repeating the Insurer's request that Regain Health, Dr. Leventhal, Dr. Markus and Dr. Kushnir provide their clinical notes and records. In this letter, Ms. Kolnhofer advised that if they did not provide their records, she would have to bring a motion. Up to the date that Nordic brought its motion, Regain Health, Dr. Leventhal, Dr. Markus and Dr. Kushnir had not provided their records, nor provided any response.

Dr. Whetstone

Mr. Rotondo, the Applicant's counsel, sent letters dated May 1, 2007 and August 24, 2007 to Dr. Whetstone, a psychiatrist, with an authorization signed by the Applicant, to release the clinical notes and records pertaining to him. Ms. Elena Alexandrova, law clerk to Applicant's counsel, advised Ms. Filomena Palozzi, a legal assistant at Bell, Temple, that they had not received a response from Dr. Whetstone.

Ms. Palozzi received an e-mail from Ms. Alexandrova on October 12, 2007, advising that the most recent letter to Dr. Whetstone had been returned and that they could not locate the doctor. Up to the date that Nordic brought its motion, Dr. Whetstone had not provided his records.

In a letter dated July 31, 2007, Ms. Snowdon sent the Toronto Social Services an authorization signed by the Applicant to release its entire social assistance/employment insurance file pertaining to him. To date, the City of Toronto has not provided the Insurer with a copy of its file. However, Ms. Andrea Denovan, a solicitor for the City of Toronto, did send a letter dated October 25, 2007 to counsel for the Insurer, which stated, in part, as follows:

I act for the non-party City of Toronto, improperly named as Toronto Social Services. I can advise that City takes no position with regards to the motion. Please forward a copy of the Order once it is obtained. Please note that the Order for the documents should be directed to the City of Toronto. The City will then give best efforts to produce the documents within the 5 day time period subject to any privilege.

Accordingly, the City of Toronto was prepared to comply once it received an order for production.

Service of Motion Record:

The Insurer provided Statements of Service, together with copies of courier slips, which indicated that all the third parties except for Dr. Whetstone had been served with the Motion Record by October 15, 2007. Since the motion was returnable on October 26, 2007, all the parties who were served received 10 days to respond, as required by Rule 67.5 of the Code. The Insurer was not able to effect service on Dr. Whetstone.

Response of Third Parties to the Motion Record:

None of the third parties attended on the motion at 10:00 a.m. on October 26, 2007, as set out in the Notice of Motion. Nor did any of them appear by 10:30 a.m., or attempt to contact the Commission by telephone or otherwise. Only the City of Toronto filed a written response dated October 25, 2007, as set out above.

Conclusion:

In order for me to make an order for production against a third party, I have to be satisfied that the above four requirements listed in Rule 67.7 of the Code, have been fulfilled.

Ms. Melodie Snowdon is a law clerk at Bell, Temple. Based on her affidavit with attached exhibits, I am satisfied that the parties have made reasonable efforts to obtain the documents sought, as set out above, and that the listed third parties have failed to provide them. I am also satisfied based on the affidavit evidence that is before me that there is sufficient evidence for me to find that the clinical notes and records pertaining to Mr. Herczog sought from Allied-Med, Dr. Markus, Dr. Kaye, Regain Health, Dr. Leventhal, Dr. Kushnir and the social assistance files pertaining to Mr. Alexandru Herczog in the records of Toronto Social Services, in the possession of the City of Toronto, are in these third parties' possession, control or power.

Since I have copies of the affidavits of service on Allied-Med, Dr. Markus, Dr. Kaye, Regain Health, Dr. Leventhal, Dr. Kushnir and the City of Toronto, I am satisfied that these third parties have received notice of this motion and have had a reasonable opportunity to respond. With the exception of the City of Toronto, they failed to do so. The City of Toronto has agreed to comply with an order for production of documents by giving best efforts to produce the documents subject to privilege, (which they would have to prove).

Weekly income replacement benefits, certain medical benefits and the cost of two assessments are in issue. Accordingly, the medical condition of the Applicant is in question and these medical records are prima facie relevant. In addition, both parties agree to production orders against the listed third parties. Under all these circumstances, I find that these documents are required to ensure a just and fair hearing. Since this satisfies the requirements of Rule 67.7, I order Allied-Med, Dr. Markus, Dr. Kaye, Regain Health, Dr. Leventhal and Dr. Kushnir to produce their clinical notes and records pertaining to Mr. Alexandru Herczog to Nordic, at reasonable photocopying costs.

I also order the City of Toronto to produce the social assistance files pertaining to Mr. Alexandru Herczog in the records of Toronto Social Services, in the possession of the City of Toronto, at reasonable photocopying costs.

Since the process server was unable to serve Dr. Whetstone, I find that he has had not had an opportunity to respond. Therefore I do not make an order for production against him at this time.

November 21, 2007

Anne Sone Arbitrator

Financial Services Commission of Ontario