Kulendrarajah Arumugam v. Guarantee Company of North America, 2008 ONFSCDRS 116

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

Neutral Citation: 2008 ONFSCDRS 116

FSCO A08-000090

BETWEEN:

KULENDRARAJAH ARUMUGAM

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

PRE-HEARING DECISION

Before: Anne Sone

Heard: May 4, 2008, by teleconference call.

Appearances: David S. Wilson for Mr. Arumugam

Pauline Kidd for Guarantee Company of North America

Issues:

The Applicant, Kulendrarajah Arumugam, was injured in a motor vehicle accident on December 30, 2006. He applied for and received statutory accident benefits from Guarantee Company of North America (“Guarantee”), payable under the Schedule.¹ Guarantee terminated medical and housekeeping and home maintenance benefits. The parties were unable to resolve their disputes through mediation, and Mr. Arumugam 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 May 4, 2008, the following production issue arose. At that time, I made an oral ruling with written reasons to follow.

The issue is:

Is Guarantee liable to pay for the cost of producing to Mr. Arumugam the clinical notes and records of the doctors who performed medical examinations on its behalf.

Result:

Guarantee is liable to pay for the cost of producing to Mr. Arumugam the clinical notes and records of the doctors who performed medical examinations on its behalf, subject to Guarantee’s right to claim its expenses at the conclusion of the hearing of this application for arbitration.

EVIDENCE AND ANALYSIS:

Mr. Arumugam requested that Guarantee produce to him the clinical notes and records of the doctors who performed medical examinations on behalf of Guarantee pursuant to section 42 of the Schedule. Guarantee agreed to produce these clinical notes and records. Mr. Arumugam also requested that Guarantee pay for the production of these clinical notes and records. Guarantee objected to paying for these productions. In Guarantee’s view, Mr. Arumugam should pay for these productions. Mr. Arumugam argued that as the Schedule is a consumer driven scheme, the financial burden should be on the insurer rather than the insured.

Rule 32 and 33 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003) (the “Code”) deal with document exchange prior to and at the pre-hearing discussion. These sections do not address who should pay for production of documents from third parties.

Practice Note 4 of the Code deals with the exchange of documents under certain circumstances. It specifically refers to reports and clinical notes of any medical examination of the insured person that were requested by the insurance company under the Schedule. It does not state categorically who should pay for productions. Rather it states as follows:

As a general rule, the party asking for the document is responsible for paying the cost of getting it. When an insurance company arranges to collect documents directly from a third party, it may require the applicant to authorize the collection beforehand. The company must give copies of any documents it obtains to the applicant, as soon as possible.

Generally, the party asking for the document will pay for it. The insurer must give copies of any documents it obtains to the applicant, as soon as possible.

Rule 1 of the Code also provides guidance to arbitrators. It states that the Rules are to be broadly interpreted to provide the most just, quickest and least expensive resolution of the dispute.

In Bogdantsev and Security National Insurance Company,² Arbitrator Blackman looked at the issue as to whether the Applicant himself should seek production of his employment files or is it sufficient for him to provide signed authorizations to the insurer. Arbitrator Blackman decided that in this case it would be best for the Applicant himself to seek production of these records from the third party. In doing so, he listed the considerations relevant to deciding the preferable means by which a production request should be fulfilled. These considerations mainly deal with productions from third parties where neither party has these documents in its possession. The following consideration is relevant to this discussion:

(8) would the party being asked to provide documentation from third parties be properly compensated in legal expenses?

Item 8 deals with whether the party being asked to provide the documentation will be properly compensated in legal expenses.

Conclusion:

Generally, the party requesting the productions is the one who pays for them. This would indicate that Mr. Arumugam should pay for the clinical notes and records he requests. However, in this case, Mr. Arumugam was examined by these doctors at the behest of Guarantee, pursuant to section 42 of the Schedule.

I am also mindful that the Schedule is to be interpreted from a consumer protection perspective, as set out in Smith v. Co-operators General Insurance Company.³

In addition, I can deal with the issue of whether Guarantee can be properly compensated for its legal expenses by making the order subject to Guarantee’s right to claim its legal expenses at the conclusion of the hearing.

Accordingly, under all these circumstances, I order Guarantee to pay for the production to Mr. Arumugam of the clinical notes and records of the doctors who performed medical examinations on its behalf, subject to Guarantee’s right to claim its expenses at the hearing.

EXPENSES:

No submissions were received regarding legal expenses, and no order is made in this regard at this time.

July 14, 2008

Anne Sone

Arbitrator

Date