Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 75

FSCO A05-002166

BETWEEN:

DARLENE DONNA WILSON

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran

Heard: By telephone conference calls on March 30, 2007 and April 5, 2007.

Appearances:

Sumitha Pudupakkam for Ms. Wilson

Catherine Zingg for Aviva Canada Inc.

Issues:

The Applicant, Darlene Donna Wilson, was injured in a motor vehicle accident on September 1, 2004. She applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ Aviva terminated weekly income replacement benefits on May 18, 2005. The parties were unable to resolve their disputes through mediation, and Ms. Wilson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Aviva filed a motion returnable on Friday, March 30, 2007. The motion was for the following:

An order compelling production of the Applicant's complete employment file from Canadian Tire Associate Store # 130 - J.H. Gallant Ltd.; that is, an order for production against a third party.

Result:

Canadian Tire Associate Store # 130 - J.H. Gallant Ltd. shall produce to Aviva the Applicant's complete employment file by April 20, 2007.
Ms. Wilson agreed to waive the requirement of Rule 39 of the Dispute Resolution Practice Code that all documents to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of hearing. Ms. Wilson stipulated that she would not object to the introduction at hearing of her employment file, provided that it was produced by May 4, 2007 to her counsel.

EVIDENCE AND ANALYSIS:

On March 30, 2007, I heard a motion brought by Aviva for production against a third party. Aviva sought an order compelling production by Canadian Tire Associate Store # 130 - J.H. Gallant Ltd. (Canadian Tire) of Ms. Wilson's entire employment file. Aviva's position was that the Applicant's past employment history was relevant to the test found in subsection 5(2)(b) of the Schedule; namely, whether she was "suffering a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience."

In the course of the dispute resolution proceedings, Ms. Wilson agreed to produce her employment file and requested it from Canadian Tire. Some documents were received from Canadian Tire and produced to Aviva. However, it did not appear that the complete employment file had been produced by Canadian Tire.

As required by Rule 67.7 of the Dispute Resolution Practice Code (DRPC), both parties made reasonable efforts to obtain the necessary information from Canadian Tire and provided a reasonable opportunity for Canadian Tire to respond. This was evidenced by correspondence dated December 22, 2004, June 27, 2005, July 6, 2005, October 19, 2006, November 15, 2006 and January 23, 2007. As the records were under the control of a third party, Canadian Tire, and the company would not voluntarily produce the additional documents, Aviva sought to compel production of the complete employment file.

I was persuaded by the parties' submissions at the motion hearing that Ms. Wilson's employment file was both relevant and necessary for the arbitration hearing. I find under Rule 67.7 of the DRPC that the documents in dispute are reasonably required to ensure a just and fair hearing.

A representative of Canadian Tire, Ms. Cathy Cassin, participated in the motion hearing. She indicated that the owner of the Canadian Tire store had retired. Although he was out of the country, she had spoken to him and was attempting to obtain keys to the storage locker containing the employment records. Ms. Cassin and the former owner consented to the production of Ms. Wilson's employment file.

At the hearing of the motion, Aviva also sought consent from Ms. Wilson for a waiver of Rule 39 of the DRPC which requires that all documents to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of hearing. Aviva submitted that arrangements for production by Canadian Tire of the employment file were vague. Therefore, there was no certainty that the file would be obtained 30 days prior to the May 14, 2007 hearing. Ms. Wilson reserved on the issue of a waiver until more information was forthcoming from the third party.

I adjourned the motion hearing until April 5, 2007 to allow time for Canadian Tire to make more definite arrangements for the production of the employment records.

On April 5, 2007 at the resumption of the motion hearing, Ms. Cassin informed the parties that she was now authorized to obtain Ms. Wilson's employment file from the storage compound. She estimated that she would obtain and produce to Aviva the employment file within two weeks.

Ms. Wilson agreed to waive the requirement of Rule 39 that she be served with the employment file at least 30 days before the first day of hearing. She stipulated that she would not object to the introduction of her employment file at the hearing, provided that her counsel received it by May 4, 2007. However, both parties are reminded that it remains within the discretion of the hearing arbitrator to determine the relevance, materiality, and admissibility of evidence submitted at the hearing.

In the course of the motion hearing another issue arose. Aviva sought information about bankruptcy proceedings which it alleged may have been initiated by Ms. Wilson. Counsel for Ms. Wilson confirmed that no bankruptcy proceeding has been initiated by Ms. Wilson.

EXPENSES:

Neither party sought their expenses of the motion hearing.

April 18, 2007

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario