Natasha Maitland v. State Farm Mutual Automobile Insurance Company, 2008 ONFSCDRS 143

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 143

FSCO A07-002293

BETWEEN:

NATASHA MAITLAND

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Richard Feldman

Heard: By telephone conference call on July 18, 2008. Written submissions were received on March 13 and April 3, 2008.

Appearances: David S. Wilson for Ms. Maitland

Peter Yoo for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Natasha Maitland, was injured in a motor vehicle accident on August 5, 2003. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and Ms. Maitland applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing conference was conducted by me on January 30, 2008. Subsequently, State Farm brought a motion for disclosure of certain information and documents. Pursuant to my directions, State Farm filed its motion material on March 13, 2008 and the Applicant filed her responding material on April 3, 2008. The motion was originally scheduled to be heard by teleconference call on April 11, 2008 but, at State Farm’s request and on consent of the Applicant, the hearing of the motion was adjourned to July 18, 2008.

In the responding motion material filed on behalf of the Applicant in early April 2008, Mr. Wilson pointed out that State Farm filed no evidence in support of its motion.

On July 18, 2008, during the course of making arguments, for the first time, counsel for State Farm requested leave to refer to facts that were not before me (as no affidavit or other evidence had been filed by State Farm) or, in the alternative, requested a further adjournment of the motion in order to file affidavit evidence in support of its motion. I denied these requests. State Farm had been instructed to file all material upon which it intended to rely by March 14, 2008. State Farm ought to have been aware by April 3, 2008 that the Applicant was taking the position that its motion materials were deficient. If State Farm intended to seek leave to amend or supplement its motion materials, the proper time to do that would have been well before the date set for the hearing of the motion. Even when the original hearing date for this motion was adjourned (at the request of State Farm), no effort was made by State Farm during the intervening period to seek leave to amend or supplement its materials. I advised the parties that I found State Farm’s request for a second adjournment of this motion to be unreasonable and that I would base my decision upon the material that had been filed by the parties and upon the arguments made by counsel at the hearing of this motion.

State Farm’s motion sought an order declaring that State Farm is entitled to the following information and/or documents:

The addresses (as well as the names) of individuals who have provided attendant care and/or housekeeping services to the Applicant since April 5, 2005;
Defence Medical Reports in the Applicant’s possession, control or power arising out of a related tort action; and
Details of any payments received by the Applicant in settlement of that tort action.

Subsequent to the hearing of the motion, I permitted counsel for the parties a brief period in which to file copies of the cases to which they referred in their arguments.

Counsel for both parties agreed that it made sense in this case (especially given the nature of the motion and the proximity in time to the commencement of the arbitration hearing) to leave the issue of the expenses of this motion to the hearing arbitrator.

Result:

Having considered the written material filed and the oral arguments made on behalf of the parties, I shall make the following orders:

Within 14 days of the date of this order, to the extent that such information is known to the Applicant or is readily obtainable by her, the Applicant shall provide State Farm with the full name and last known address of each individual who has provided attendant care and/or housekeeping services to her since April 5, 2005.
State Farm’s request for the other information and documents (as described in its motion material) is denied.
On consent of the parties, the decision on the expenses of this motion is referred to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Issue 1 – Addressess of Service Providers

State Farm has requested the addresses of all persons who have provided attendant care and/or housekeeping services to the Applicant since April 5, 2005. It makes this request based upon the following arguments:

Pursuant to section 33 of the Schedule, a person applying for a benefit has an obligation to provide an insurer with any information reasonably required to assist the insurer in determining the person’s entitlement to a benefit;
Pursuant to Rule 41 of FSCO’s Dispute Resolution Practice Code (the “Code”), each party must provide the names of witnesses the party intends to call;
FSCO routinely orders applicants to provide both the names and addresses of potential witnesses;
There is no property in a witness;
The whereabouts of the service providers is information that is within the knowledge of the Applicant and having the Applicant disclose this information is the most just, quickest and least expensive way for State Farm to locate the service providers, investigate the claims of the Applicant, and prepare its defence (including deciding who State Farm intends to call as witnesses at the hearing of the arbitration).

The Applicant opposes this request for the following reasons:

Rule 41 only requires disclosure of the names of witnesses and only of witnesses the Applicant intends to call at the hearing;
There is no evidence that FSCO routinely orders applicants to make the type of disclosure being sought here;
The Insurer is seeking provision of information, not production of a document and, therefore, this is not a production issue;
If the Insurer’s request is granted, State Farm may then use the information to contact and, possibly, harass potential witnesses.

I am unaware that FSCO routinely orders applicants to provide to insurers the names and addresses of all service providers and I agree with counsel for the Applicant that State Farm has failed to provide me with any examples of such orders. In my experience, however, there is rarely a need for such orders as applicants’ representatives routinely agree to provide such information without the need for intervention by FSCO. There was no such agreement in this case.

In seeking to provide only the names of the witnesses she intends to call, the Applicant relies upon a strict interpretation of Rule 41. This interpretation of Rule 41, however, even if correct, ignores other important provisions of the Code.

Rule 1.1 of the Code states that FSCO’s Rules of Procedure will be “broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.” Rule 32.3 provides that (subject to Rule 39), an arbitrator may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate. Strict compliance with Rule 41 does not relieve a party from her other obligations under Rule 32.3.

In this case, State Farm is seeking information that will assist it in identifying and locating material witnesses who purportedly provided services to the Applicant. The nature and extent of the services provided and the Applicant’s need for those services are some of the key issues in dispute in this application. The information sought by State Farm will assist it in preparing its defence and in deciding which witnesses it intends to call.

Through her counsel, the Applicant has argued that if she decides not to call one or more service providers, that may well weaken her case but that is her prerogative. I agree that the Applicant has the right to decide which witnesses she intends to call to give evidence at the hearing. That, however, does not give the Applicant the right to effectively block the Insurer from identifying, communicating with and/or calling as witnesses those service providers who the Applicant might rather not have testify. Mr. Wilson failed to provide any legitimate justification for his stated concern that State Farm might harass potential witnesses and, in any event, the Applicant has no legal right to conceal the identity or otherwise attempt to shield such material witnesses from the Insurer.

I note with some interest that, pursuant to Rule 31.06(2) of the Rules of Civil Procedure, a party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise. Clearly, this Rule rests upon the presumption that such information is relevant to the proceedings and that fairness requires its disclosure. While discovery in an arbitration proceeding before FSCO is not as broad as in court proceedings, the principles of fairness remain the same. Ordering an applicant to disclose the names and addresses of service providers will not add to the cost, length or complexity of the proceedings. On the contrary, disclosure of this information is more likely to result in the most just, quickest and least expensive resolution of the dispute.

For these reasons, I shall grant this part of the motion.

Issue 2 – Production of Defence Medical Reports

According to State Farm, in addition to this application for arbitration, the Applicant also commenced tort proceedings for damages she suffered as a result of the August 5, 2003 motor vehicle accident. State Farm assumes that the defendant in the tort proceedings had medical reports produced and that the Applicant is in possession of such reports. State Farm is seeking an order compelling the Applicant to produce any Defence Medical Reports that are in her possession, control or power.

I have reviewed the cases presented by the parties and, with respect to this production request, can summarize the law as follows:

Neither the deemed undertaking rule (set out in the Rules of Civil Procedure) nor the common law principles related to implied undertakings are applicable in these cases.²
It is presumed that the information contained in such reports is likely to be relevant to the issues in dispute in the application for arbitration as it relates to the physical or psychological condition of the Applicant.³
Such reports are generally not protected by solicitor-client or litigation privilege.⁴
Arbitrators at FSCO have the discretionary power to order production of such documents.⁵
In deciding whether to exercise that discretionary power, arbitrators have taken the following factors into consideration:⁶

a. The integrity of FSCO’s dispute resolution process (including a recognition that the Applicant has deliberately opted for the simpler, more expeditious and more cost-effective proceedings available at FSCO);

b. The relevance and importance of the documents sought to the issues in dispute;

c. The potential prejudice to the parties of granting or denying the motion;

d. The sufficiency of the existing documents already in the possession of the moving party;

e. Whether granting the motion will likely complicate or unduly prolong the arbitration proceeding; and

f. The desire to have the best evidence available for the hearing arbitrator.

This analysis by an arbitrator involves a careful examination of the specific facts of each case and a balancing of interests.⁷
Any consideration of such a request must be made against the backdrop of the insurer’s statutory right to have the applicant examined as often as reasonably necessary and to obtain its own medical reports.⁸

There is no question that I can make the requested order. The real question is whether I should make such an order in this case.

State Farm has failed to put any evidence before me. There is no agreed statement of facts and neither party has filed an affidavit. Given that the onus on this motion is upon State Farm, I draw no negative inference from the failure of the Applicant to file an affidavit as there were no facts presented by the Insurer to which the Applicant needed to respond.

Based upon the oral submissions of counsel, one of the few facts that appears to be uncontested is that the last assessment of the Applicant that State Farm had performed was a multi-disciplinary assessment in July 2007 to determine whether the Applicant had suffered a catastrophic impairment as a result of the accident. Through its counsel, State Farm suggested that it was possible that there were Defence Medical Reports in the tort action that were more recent than July 2007 and that it might be helpful to have such reports available for the hearing arbitrator. That is about as strong an argument as State Farm was able to advance in the absence of any evidence to support its motion.

As previously stated, motions such as this turn upon an analysis of the specific facts of the case. It involves understanding the full context in which the request is being made: the type and number of assessments that have already taken place, the medical information currently in the possession of the insurer, the nature of the documents for which disclosure is being sought and their relative importance to the issues in dispute and any prejudice that is likely to be suffered by the parties if the motion is granted or denied. Virtually none of that information has been made available to me in this case. Since there is no factual foundation upon which I can properly exercise my discretion in this case, this part of State Farm’s motion shall be denied.

Issue 3 – Disclosure of the Settlement

State Farm has learned that the Applicant has settled the related tort action and has requested that the Applicant disclose the details of that settlement.

State Farm provided no evidence, has made no written submissions and has filed no case law supporting its position with respect to this issue. At the hearing of this motion, counsel for State Farm conceded that the amounts the Applicant may have received in the tort action are not deductible from amounts to which she may be entitled under the Schedule. The only argument made in support of the relief sought was that, even if not relevant to the issues in dispute, if State Farm knew how much the Applicant received in the tort settlement, it might assist State Farm in determining its exposure and it may facilitate settlement of this arbitration.

I find that this is not a valid reason for me to grant the order requested by State Farm. This part of the motion is also denied.

EXPENSES:

On consent of the parties, the decision on the expenses of this motion is referred to the hearing arbitrator.

August 27, 2008

Richard Feldman

Arbitrator

Date