Neutral Citation: 2007 ONFSCDRS 261 FSCO A06-002700

BETWEEN:

MONICA SIDDIQUI Applicant

and

ING INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

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

Appearances: Gary Spector for Ms. Siddiqui Anna Marie Musson for ING Insurance Company of Canada

Issues:

The Applicant, Monica Siddiqui, was injured in a motor vehicle accident on September 14, 2004. She applied for and received statutory accident benefits from ING Insurance Company of Canada (“ING”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Siddiqui applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Shall ING be granted an order for production of the requested documents and information which shall be produced on or before December 31, 2007, failing which this proceeding shall be stayed until not less than 60 days after the day on which the last of the requested documents is produced?

The requested documents and information are the following:

Decoded OHIP summary for the one year prior to the subject motor vehicle accident up to the present.
Clinical notes, records and reports of all treating physicians, including the family doctor and all specialists seen by the Applicant for the one year prior to the subject motor vehicle accident up to the present. Further particulars of this request will be provided upon review of the above-requested decoded OHIP summary.
Clinical notes, records and reports of all post-accident treating practitioners, specialists and service providers, as referred to in item 2 above.
Pharmacy printout of all prescription medications dispensed to the Applicant for the one year prior to the subject motor vehicle accident up to the present, including the records of I.D.A. Permanent Drug Mart at 106 Humber College Boulevard in Rexdale and Wadland Pharmacy Ltd. at 330 Queens Plate Drive in Etobicoke.
Clinical notes, records and reports of all treatment facilities that the Applicant has attended for the one year prior to the subject motor vehicle accident up to the present.
Sign-in sheets from all of the treatment facilities that the Applicant has attended for the one year prior to the subject motor vehicle accident up to the present.
Certified Canada Revenue Agency income tax returns and Notices of Assessment for 2004, 2005 and 2006. As indicated in previous correspondence, ING reserves its right to bring this matter back on for consideration with the pre-hearing arbitrator with regards to the tax return and Notice for 2003.
A Declaration of Post-Accident Income and Benefits (OCF-13). ING acknowledges receipt of pay stubs showing income earned by Ms. Siddiqui in 2004 and 2005, as well as copies of T4, T4A and T4E forms for 2005. ING seeks the Declaration which had been forwarded to the Applicant, as well as any additional supporting documentation.
Complete employment file from all employers for the one year prior to the subject motor vehicle accident up to the present.
Complete Employment Insurance file including any medical documentation submitted to them for the one year prior to the subject motor vehicle accident up to the present.
Complete collateral benefits file with regards to any benefits received by the Applicant for the one year prior to the subject motor vehicle accident up to the present, including any access to collateral benefits the Applicant’s husband has had access to for the one year prior to the subject motor vehicle accident up to the present.
Complete clinical notes, records and reports of Dr. Veronica Kekosz, physiatrist.
Complete clinical notes, records and reports of the family doctor, Dr. Parmila Sehgal, general practitioner, for the one year prior to the subject motor vehicle accident up to the present.
Complete clinical notes, records, reports and sign-in sheets from Etobicoke Rehabilitation Centre for the one year prior to the subject motor vehicle accident up to the present, including the records of Dr. Fayaz Dossa, chiropractor, Altaf Khimji, physiotherapist, Robert Szuty, massage therapist, Manginder Dhaliwal, physiotherapist, Dr. Sanjib Ghoshdastidar chiropractor, and Dr. Shaila Kaloni, rheumatologist.
Complete clinical notes and records of Dr. Oren Gozlan, psychologist.
Complete clinical notes and records of Dr. M.K. Joseph Kwok, orthopaedic surgeon.

Result:

It is not within the control of the Applicant to produce the requested information and documentation, which is not in her possession, on or before December 31, 2007.
The Applicant’s representative has undertaken to, within 30 days of this proceeding, forward request letters, copied to ING, for all of the outstanding production requests contained in ING’s list of November 19, 2007 and reflected in the list above.

EVIDENCE AND ANALYSIS:

The Applicant has filed an Application for Arbitration on the following issues:

Income replacement benefits at the rate of $3,478.50 from December 22, 2004 to September 14, 2006;
Payment in the amount of $6,940.36 for treatment at Etobicoke Rehabilitation Centre;
Special Award; and
Expenses of the hearing which are claimed by both parties.

Section 33 of the Schedule provides that a person applying for benefits shall provide the insurer with any information reasonably required to assist it in determining the insured’s entitlement to benefits. Rule 32.2 of the Dispute Resolution Practice Code (the “Code”) imposes an ongoing obligation on the parties for the exchange of documents. Rule 32.3 of the Code provides that an Arbitrator may at any stage in a proceeding, order a party to produce documents and information relevant to the issues in dispute.

On January 24, 2007, ING, in its Response to the Application for Arbitration, forwarded its production requests to the Applicant’s representative and in subsequent correspondence repeated and updated its production requests. On October 30, 2007, ING received correspondence from the Applicant’s representative advising that efforts were being made to obtain productions but that request letters were none of ING’s concern.

I agree with ING that the documentation and information requested is relevant to the issues in dispute in this proceeding. At this stage, some of the requested documents have been produced. However, it is important to be mindful that productions within the possession and control of third parties are often difficult for the Applicant and her representative to obtain. For that reason, Rule 67 of the Code outlines the procedure for obtaining a third party production order.

I disagree that, in the circumstances where there has been a considerable delay with productions, that the request letters were none of ING’s concern. Understandably, ING requested confirmation that attempts to obtain the outstanding productions had been made. The Applicant’s representative conceded that, in the circumstances, it was appropriate to copy ING on all his production request letters. He undertook to forward, within 30 days of this proceeding, additional production request letters, copied to ING, for all outstanding productions contained in ING’s list of November 19, 2007.

I find that it is sufficient for the Applicant’s representative to undertake to forward production request letters, copied to ING, for all outstanding productions. It is not appropriate at this stage in the proceedings, with hearing dates scheduled for March 3, 4, 5 and 6, 2008, to stay the proceedings pending receipt of productions.

EXPENSES:

Both parties shall bear their own expenses of this proceeding.

December 28, 2007

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario