Troy Pellerine v. Dominion of Canada General Insurance Company, 2008 ONFSCDRS 127

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 127

FSCO A07-002404

BETWEEN:

TROY PELLERINE

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator John Wilson

Heard: June 13, 2008, by teleconference

Appearances: Kristian Bonn for Mr. Pellerine

Joan Takahashi for Dominion of Canada General Insurance Company

Issues:

The Applicant, Troy Pellerine, was injured in a motor vehicle accident on July 7, 2002. He applied for and received certain statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Pellerine 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:

Is Dominion entitled to an order that Mr. Pellerine produce the documents listed in Exhibit “T” to the affidavit of Rick Lam contained in Dominion’s motion record?

Result:

Dominion is not entitled to an order at this time.

EVIDENCE AND ANALYSIS:

The issue in arbitration is whether Mr. Pellerine is entitled to payment of past attendant care expenses incurred prior to April 26, 2006. I am advised that Mr. Pellerine is currently receiving an attendant care benefit from Dominion, the amount of which is no longer in dispute.

In the context of this arbitration, Dominion has requested fairly wide-ranging documentary productions. In its Notice of Motion, Dominion refers to a request for an order that Mr. Pellerine “provide all outstanding productions records requested by the Insurer within 30 days.” At Tab “T” of the motion record filed by Dominion is found a list of “Productions Outstanding for Troy Pellerine.”

The list includes an OHIP decoded Summary “as far back as it is available”, the complete St. Michael’s Hospital records, the records of the Peterborough Health Centre, the records of Drs. Freisen, Mason and Hamilton, and the complete notes of Renée Cotton, the case manager.

Dominion also asked for:

“the complete clinical notes and records, including all handwritten notes, correspondence and e-mails exchanged with all individuals including treatment providers and assessors, Mr. Pellerine and any other individuals acting for Mr. Pellerine.”
“copies of all e-mails from Troy Pellerine exchanged with any and all treatment providers and school or employment including but not restricted to L. Browne, Michelle Cohen, and Associates, Dr. Hamilton, Renée Cotton, Total Physiotherapy, Wellness Works and Fergal O’Hagan.”
“copy of the report of Dr. Rajka Soric discussed in the report of Dr. Neville Doxey.”

Dominion also requested copies of Mr. Pellerine’s complete Ontario Scholastic Record.

Of the above requests only Dr. Soric’s report and the request for all e-mails from Mr. Pellerine were marked as “refused” and the request for the Ontario Scholastic Record was marked as “partial refusal”. The chart contained in the moving party’s materials lists a variety of reasons for the non-production of the balance of the items, including discussions on payment for the cost of third party records.

It is my impression upon reading the correspondence and the production chart supplied by the Insurer that Dominion’s failure to undertake unequivocally to pay the cost of obtaining the requested records played a not insignificant role in delaying productions.

While I understand Dominion’s concerns about obtaining full documentary production, with the exception of the few clear refusals, this motion was premature. Motions for production are not supposed to be routine procedures in an arbitration. Before requesting an order, it is incumbent upon a party to take all reasonable steps to obtain the productions voluntarily. Only in the case of a clear refusal, or such foot-dragging as would constitute a constructive refusal should resort be had to a formal motion.

It is also my understanding that since the motion was heard, Mr. Pellerine has provided answers to the request for e-mails, and other records, and has provided some further documentation. Consequently, I will deal in detail only with those remaining matters characterized by Dominion as “refused.”

It has often been stated that the test for production at the Commission is that an item should only be relevant, probative and not privileged for it to be produced. Indeed the test for relevance is that an item, at this stage in the proceedings, need only be arguably relevant. That said, the documents requested must be at least arguably relevant to the specific issue or issues referred to arbitration. Morden J.A. in Ontario Human Rights Commission v. Dofasco Inc. et al.² remarked:

I think that the board has no power to order the production of documents that are not arguably relevant. The exercise of such a power would invade a party’s privacy rights without any countervailing advantage to the administration of justice.

Mr. Pellerine has taken the position that much of the information requested is not directly relevant to the narrow issue in arbitration and that the extended requests made by Dominion only serve to expand the range of the arbitration and will result, if accepted, in a longer, less focused and more expensive arbitration process for Mr. Pellerine.

In particular, Mr. Pellerine objects to the production of his Ontario Scholastic Record as not being relevant to the attendant care issue. I note that there is no evidence that Mr. Pellerine was a student at any institution covered by the Ontario Scholastic Record at the time of the accident, or in the period immediately preceding the accident.

While it is not inconceivable that the Ontario Scholastic Record could at some point be relevant to Mr. Pellerine’s overall claims from his insurer, it should be remembered that only limited attendant care needs following the accident, are at issue here. No case has been made for the relevance of the school record to those attendant care claims and none for production of that record at this time.

The production of Dr. Soric’s report was objected to on the basis that it was obtained in the context of mandatory productions in a related tort matter. Counsel for Mr. Pellerine asserts that, as a result it is subject to the implied undertaking rule, and should not be disclosed.

The statutory version of the implied undertaking rule, the deemed undertaking rule, is set out in Rule 30.1.01(3) of the Rules of Civil Procedure³, which states as follows:

All parties and their counsel are deemed to undertake not to use the evidence or information to which this rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

While it is clear that Tanner et al. v. Clark et al.⁴ stands for the proposition that Rule 30.01 of the Rules of Civil Procedure (the deemed undertaking rule) does not prevent the production of arbitration materials in a court action, the contrary situation is not as clear.

Since Rule 30.01 does not apply to arbitrations at the Commission⁵, then in the absence of a specific rule in the Dispute Resolution Practice Code, the common law relating to implied undertakings on production would apply. The common law concept of an implied undertaking has been described as follows:

The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party's rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purposes.⁶

The specific object of the law in imposing the obligation was described by Lord Denning M.R. in Riddick v. Thames Board Mills Ltd.⁷ in these words:

Compulsion [to disclose] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires.

In The Law of Civil Procedure⁸, Williston and Rolls set out the principle governing the use of documents produced for discovery:

There is an implied undertaking by a party to whom documents are produced that he will not use them for collateral or ulterior purpose; any such use of documents is a contempt of court.

While an argument has been made that Mr. Pellerine may have waived any rights with regard to this report by allowing it to be seen by Dr. Neville Doxey as part of an assessment, I am not convinced that this assists Dominion in this matter. In the case of an implied or deemed undertaking it is not an individual party who can waive privilege but rather the court itself which has that discretion. As Morden J.A. observed in Goodman:⁹

However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from.

While the open courts principle would make any documents that formed part of the record of a court proceeding publicly accessible in the absence of a sealing order, there is no evidence that Dr. Soric’s report forms part of the formal record of any proceeding. Once again however, even if this were the case, jurisdiction over the record would remain with the court having custody of the record.

It is also the court having jurisdiction over the action in which the documents were created or originally produced that would have the jurisdiction to grant a waiver on the ulterior use of such documents, not an arbitrator appointed to deal with the limited issues referred to arbitration.

Dr. Soric’s report, although possibly “arguably relevant” would still be excluded since it would be institutionally privileged and could only be released with the approval of the party in whose benefit the privilege operates — the court.

Consequently, without the consent or release of the tribunal to whom the undertaking is owed, I have no jurisdiction to order that Dr. Soric’s report be produced at this time.

For the above reasons, Dominion’s production motion is denied.

EXPENSES:

In light of the fact that I have found the majority of the requests to be premature, and that I have found that Dominion is not entitled to orders in the few issues it claimed were “refused”, I exercise my discretion to award Mr. Pellerine his expenses incurred in this preliminary issue hearing.

Counsel for Mr. Pellerine should serve and file an expense summary with regard to this motion. In the event that the parties are unable to agree on the amount of expenses to be ordered within 30 days of service of the expense summary, each party may file brief submissions as to the quantum of expenses.

July 24, 2008

John Wilson

Arbitrator

Date