Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 168
FSCO A05-002256
BETWEEN:
TRINIDAD LIM
(Estate of)
Applicant
and
T.T.C. INSURANCE COMPANY LIMITED
Insurer
AND BETWEEN:
T.T.C. INSURANCE COMPANY LIMITED
Applicant
and
TORONTO POLICE SERVICE
(Third Party)
DECISION ON A PRELIMINARY ISSUE
(MOTION FOR PRODUCTION)
Before: Denise Ashby
Heard: October 17, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Susan Deer, Student-at-Law, for T.T.C. Insurance Company Limited
No one appearing for the Estate of Trinidad Lim and for Toronto Police Service
Issues:
The Estate of Trinidad Lim (the Estate) claims that Ms. Lim was injured in a motor vehicle accident on December 30, 2005 when she was struck by a streetcar owned and operated by T.T.C. Insurance Company Limited ("T.T.C."). She applied for and was denied statutory accident benefits, payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Estate 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 T.T.C. Insurance Company entitled to disclosure of the Toronto Police Service's investigation file in respect of the investigation of an incident on December 30, 2005, and identified in the Toronto Police Service's incident report number 1438263, pursuant to Rule 67.7 of the Dispute Resolution Practice Code?
Is any party to this motion entitled to its expenses pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Result:
T.T.C. Insurance Company Ltd. is entitled to disclosure of the Toronto Police Service's investigation file in the possession and control of the Toronto Police Service and nothing in the order shall require the Toronto Police Service to search for or obtain documents from any other agency or person. Toronto Police Service, without limiting the generality of the foregoing, shall disclose: all notes, reports, diagrams, field notes, witness statements, audio-visual tapes, photographs and any other investigative materials, records or documents, generated, obtained or kept by Toronto Police Service, pursuant to Rule 67.7 of the Dispute Resolution Practice Code.
Toronto Police Service shall make copies of the records required to be produced pursuant to paragraph 1 and shall mail such by regular mail to T.T.C. Insurance Company Ltd. upon production of a copy of the Order or shall allow T.T.C. Insurance Company Ltd. to arrange for the delivery of the records by courier and Toronto Police Service shall be entitled to charge T.T.C. Insurance Company Ltd. a reasonable fee for copying and mailing, which fee may be required prior to the delivery of the records. Upon receipt of the records, T.T.C. Insurance Company shall provide the Estate's solicitor with copies of all records. The cost of such copies shall be at T.T.C. Insurance Company's expense save and except for the duplication of photographs, videotapes, CDs or DVDs, which expenses shall be borne by the Estate.
The parties shall bear their own expenses of this motion hearing.
EVIDENCE AND ANALYSIS:
Trinidad Lim was injured in an incident on December 30, 2005. T.T.C. denied benefits pursuant to the Schedule on the basis that Ms. Lim was not struck by a streetcar.2
On October 17, 2008, a preliminary issue hearing by way of a motion for third party production was convened before me. No one appeared on behalf of the Estate or Toronto Police Service ("T.P.S.") notwithstanding their being served with the motion record on or about September 16, 2008.3
T.T.C. submits that it is essential for it to receive disclosure of the T.P.S. investigation file in order to assess liability as it will contain information which will assist T.T.C. in determining the cause of Ms. Lim's injuries.
Rule 67.7 of the Dispute Resolution Practice Code (the "Code") provides:
Before making an order for the production of documents against a third party, the adjudicator shall be satisfied that:
(a) the parties have made reasonable efforts to obtain the document sought;
(b) the document sought is in the possession, control or power of the third party;
(c) the third party has had a reasonable opportunity to respond;
(d) the document is reasonably required to ensure a just and fair hearing.
Upon reading the motion record and hearing and considering the submissions of the T.T.C.'s representative and reviewing the T.P.S. letter dated September 30, 3008,4 I am satisfied that the requirements of Rule 67.7 have been met. I find that the information set out in the Notice of Motion is reasonably required to assist in determining the cause of Ms. Lim's injuries and the facts surrounding the incident on December 30, 2005. Therefore, I order that T.P.S. disclose its file to T.T.C. Upon receipt of the file, T.T.C. shall provide the Estate's solicitor with copies of all records. T.T.C. shall bear the expense of these copies save and except for the duplication of photographs, videotapes, CDs or DVDs, which expenses shall be borne by the Estate.
EXPENSES:
I exercise my discretion and order that the parties shall bear their own expenses incurred in this preliminary issue hearing.
October 17, 2008
Denise Ashby
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 168
FSCO A05-002256
BETWEEN:
TRINIDAD LIM
(The Estate of)
Applicant
and
T.T.C. INSURANCE COMPANY LIMITED
Insurer
AND BETWEEN:
T.T.C. INSURANCE COMPANY LIMITED
Applicant
and
THE TORONTO POLICE SERVICE
(Third Party)
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
T.T.C. Insurance Company Limited is entitled to disclosure of the Toronto Police Service investigation file in the possession and control of the Toronto Police Service and nothing in this order shall require Toronto Police Service to search for or obtain documents from any other agency or person. Toronto Police Service, without limiting the generality of the foregoing, shall disclose: all notes, reports, diagrams, field notes, witness statements, audio-visual tapes, photographs and any other investigative materials, records or documents, generated, obtained or kept by the Toronto Police Service.
The Toronto Police Service shall make copies of the records required to be produced pursuant to paragraph 1 and shall mail such by regular mail to T.T.C. Insurance Company Limited upon production of a copy of the Order or shall allow T.T.C. Insurance Company Limited to arrange for the delivery of the records by courier and the Toronto Police Service shall be entitled to charge T.T.C. Insurance Company Limited a reasonable fee for copying and mailing, which fee may be required prior to the delivery of the records. Upon receipt of the records, T.T.C. Insurance Company Limited shall provide the solicitors for the Estate of Trinidad Lim with copies of all records. The cost of such copies shall be at the T.T.C. Insurance Company Limited’s expense save and except for the duplication of photographs, videotapes, CDs or DVDs, which expenses shall be borne by the Estate of Trinidad Lim.
The parties shall bear their own expenses of this motion hearing.
October 17, 2008
Denise Ashby
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Motion Record, Affidavit of K. McGuire, paragraph 2
- Exhibits 2 and 3
- Exhibit 1