Neutral Citation: 2008 ONFSCDRS 49 FSCO A06-002341

BETWEEN:

ALIA ASHRAF Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

MOTION DECISION

Before: Anne Sone Heard: By telephone conference call on January 11, 2008.

Appearances: Justin Mariani for Mrs. Ashraf Ognjen Miketic for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Alia Ashraf, was injured in a motor vehicle accident on February 16, 2005. She applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Ashraf applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A motion was brought in this case returnable on January 11, 2008 to compel production from third parties. The Applicant, Alia Ashraf, consented to Royal obtaining orders for production against the third parties in connection with motor vehicle accidents which took place on July 1, 2003, March 20, 2004 and February 16, 2005.

The issues in dispute at the arbitration hearing were identified and agreed to at a pre-hearing held on March 12, 2007. They are as follows:

Is Mrs. Ashraf entitled to receive weekly caregiver benefits at the rate of $300.00 for the period from February 17, 2005 through February 16, 2007 for services provided by Husai Karimi, pursuant to section 13 of the Schedule?
Is Mrs. Ashraf entitled to receive a medical benefit for various modalities of treatment provided by Focus Rehab pursuant to a treatment plan dated May 17, 2005 in the outstanding amount of $6222.00, pursuant to section 14 of the Schedule?
Is Mrs. Ashraf entitled to attendant care benefits at the rate of $727.00 monthly for the period from February 17, 2005 through June 7, 2006 for services provided by Husai Karimi, pursuant to section 16 of the Schedule?
Is Mrs. Ashraf entitled to payments for housekeeping and home maintenance for services provided by Husai Karimi from February 17, 2005 through February 16, 2007, at the weekly rate of $100.00, pursuant to section 22 of the Schedule?
Is Royal liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Ashraf?
Is Royal liable to pay Mrs. Ashraf’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Ashraf liable to pay Royal’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Ashraf entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Motion Issue:

Is Royal entitled to production of the clinical notes and records of Focus Rehabilitation Group and Century Diagnostic and Assessment Centre pertaining to Mrs. Alia Ashraf’s involvement in motor vehicle accidents which took place on July 1, 2003, March 20, 2004 and February 16, 2005?

Motion Issue Result:

Royal is entitled to production of the clinical notes and records of Focus Rehabilitation Group, subject to payment of $150.00, and Century Diagnostic and Assessment Centre pertaining to Mrs. Alia Ashraf’s involvement in motor vehicle accidents which took place on July 1, 2003, March 20, 2004 and February 16, 2005.

Rules:

Rule 67 of the Dispute Resolution Practice Code (Fourth Edition, updated October 2003) (the “Code”) sets out an adjudicator's authority to make interim orders within a proceeding.

Pursuant to Rule 67.4 of the Code, where a party seeks an order for production against a person who is not a party to the proceeding ("third party"), the party making the request must serve the materials required under Rule 67.3 upon the third party and file it together with a Statement of Service.

Rule 67.5 states that the third party must serve and file its written response within 10 days of being served.

Under Rule 67.6, an adjudicator may determine the request on the basis of the documents and written submissions filed, or in such manner as he or she considers appropriate.

Rule 67.7 of the Code sets out the requirements for obtaining a production order against a third party. In order to do so, I must 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;

(d) the document is reasonably required to ensure a just and fair hearing.

Previous Motor Vehicle Accidents:

The parties do not dispute that Mrs. Ashraf was involved in two prior motor vehicle accidents, on July 1, 2003 and March 20, 2004, for which she commenced accident benefits claims against the Wawanesa Mutual Insurance Company (“Wawanesa”) on November 19, 2003 regarding the first accident and on June 2, 2004, regarding the second accident.

According to Mrs. Ashraf’s Statement dated June 25, 2005, she attended at Focus Rehabilitation Group to have therapy for her back and knee pain, following the second motor vehicle accident of March 20, 2004.

Outstanding Productions:

Ms. Franceen Rogovein, an associate with the law firm Aronovitch Macaulay Rollo LLP, (“Aronovitch”), solicitors for the Insurer, Royal swore an affidavit dated October 19, 2007. In it she sets out the efforts that have been made to obtain the documents that Royal is seeking from the third parties.

Focus Rehabilitation Group

Ms. Althea Burton, a law clerk at Aronovitch, sent a Direction to be signed by Mrs. Ashraf enclosed in a letter dated March 19, 2007 to Mr. Mariani, Mrs. Ashraf’s representative. This Direction authorized Focus Rehabilitation Group (“Focus”) to send its clinical notes and records with respect to Mrs. Ashraf and all three accidents to Royal.

On April 18, 2007, Ms. Arslan Korpeev from Focus sent a letter and an invoice in the amount of $150.00 for the copies of the clinical notes and records of Mrs. Ashraf to Ms. Cecilia Ledzinsky at Royal.

On April 27, 2007, Ms. Burton sent a letter to Ms. Korpeev at Focus requesting confirmation that Aronovitch will receive a complete copy of Mrs. Ashraf’s records from Focus including treatment provided for all three accidents.

In letter dated May 1, 2007, Mr. Mariani sent Mrs. Ashraf’s duly executed Direction regarding Focus to Ms. Burton.

On May 3, 2007, Ms. Burton wrote a letter to Ms. Korpeev at Focus enclosing the executed Direction of Mrs. Ashraf, authorizing the release to Aronovitch of a complete copy of Focus’s clinical notes and records for Mrs. Ashraf’s three motor vehicle accidents.

On June 15, 2007, Ms. Burton sent a letter to Ms. Korpeev. Further to correspondence dated April 27 and May 3, 2007, Ms. Burton requested production of a complete copy of the clinical notes and records of Focus relating to Mrs. Ashraf.

On July 27, 2007, Ms. Burton sent another letter to Ms. Korpeev requesting production of a complete copy of the clinical notes and records of Focus relating to Mrs. Ashraf.

Aronovitch and Royal have not received any of Focus’s clinical notes and records pertaining to Mrs. Ashraf, despite numerous written requests seeking confirmation that it would receive them. On the other hand, Royal has not forwarded payment in the amount of $150.00, as requested by Focus.

Century Assessment and Diagnostic Centre

Ms. Burton sent a Direction to be signed by Mrs. Ashraf enclosed in a letter dated March 19, 2007 to Mr. Mariani. This Direction authorized Century Assessment and Diagnostic Centre (“Century”) to produce to Royal its clinical notes and records with respect to Mrs. Ashraf and her three motor vehicle accidents.

In a letter dated May 1, 2007, Mr. Mariani sent Mrs. Ashraf’s duly executed Direction regarding Century to Ms. Burton.

On May 3, 2007, Ms. Burton wrote to Century requesting a complete copy of their clinical notes and records regarding Mrs. Ashraf with respect to her three motor vehicle accidents. Ms. Burton enclosed a Direction duly executed by Mrs. Ashraf allowing Century to release this information and documentation to Aronovitch.

On May 28, 2007, Century sent a fax to Ms. Burton enclosing an invoice in the amount of $129.99 for the production of the clinical notes and records of Mrs. Ashraf.

On May 28, 2007, Ms. Burton sent a letter to Ms. Halyna Nesterko at Century enclosing a cheque in the amount of $129.99. This amount represented payment in full of Century’s invoice number CDAC-050216 for the clinical notes and records of Mrs. Ashraf.

On June 15, 2007, Ms. Burton sent a letter to Ms. Nesterko and again requested the production of the complete copy of the clinical notes and records of Century regarding Mrs. Ashraf.

On July 27, 2007, Ms. Burton sent another letter to Ms. Nesterko requesting that Aronovitch be provided with a complete copy of the clinical notes and records of the Century regarding Mrs. Ashraf.

Royal has received two reports pertaining to Mrs. Ashraf from Century, including a Functional Abilities Evaluation report dated March 29, 2005 and an In-Home assessment dated March 29, 2005. However, Royal is still looking for handwritten or other clinical notes and records from Mrs. Ashraf’s visits to this clinic.

Service of Motion Record:

Royal provided Affidavits of Service which indicated that Focus and Century had been served with the Notice of Motion and the Motion Record by December 21, 2007. Since the motion was returnable on January 11, 2008, Focus and Century received 10 days to respond, as required by Rule 67.5 of the Code.

Response of Third Parties to the Motion Record:

Focus sent a letter dated January 10, 2008 to Aronovitch indicating that since it had not received payment of the $150.00 requested in its Invoice #6078 sent to Royal on April 18, 2007, it had not sent Mrs. Ashraf’s clinical notes and records. The office manager for Focus stated that once the cheque for $150.00 was received Mrs. Ashraf’s clinical notes and records would be sent out. Century did not respond.

Conclusion:

In order for me to make an order for production against third parties, I have to be satisfied that the above four requirements listed in Rule 67.7 of the Code have been fulfilled.

Based on the affidavit evidence, I find that Royal and Mrs. Ashraf have made reasonable attempts to obtain the documents sought, and that these documents are in the possession, control or power of the third parties, Focus and Century.

The third party, Focus has had a reasonable opportunity to respond to Royal’s numerous written requests. Focus has responded by a letter dated April 18, 2007 seeking payment of $150.00 prior to producing its clinical notes and records pertaining to Mrs. Ashraf to Royal. There may well have been a miscommunication between Aronovitch and Focus. When Focus failed to confirm that it would provide all its clinical notes and records to Royal, Royal held off on paying Focus’s invoice in the amount of $150.00.

The third party, Century also has had a reasonable opportunity to respond to Royal’s numerous written requests. There may also have been a miscommunication in this case. When Royal sent the requested $129.99 to Century, Century responded by sending two reports, but not the clinical notes and records pertaining to Mrs. Ashraf it had in its possession.

I am satisfied that the documentation sought from Focus and Century is relevant to the issues in dispute and is therefore reasonably required to ensure a just and fair hearing of the issues in dispute in this Arbitration.

Accordingly, I order Focus Rehabilitation Group to produce to Royal its clinical notes and records of Mrs. Ashraf pertaining to the motor vehicle accidents which occurred on July 1, 2003, March 20, 2004 and February 16, 2005, subject to Royal’s payment of $150.00. I also order Century Assessment and Diagnostic Centre to produce to Royal its clinical notes and records of Mrs. Ashraf pertaining to the motor vehicle accidents which occurred on July 1, 2003, March 20, 2004 and February 16, 2005.

March 28, 2008

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario