Vladimir Pankratov v. State Farm Mutual Automobile Insurance Company, 2008 ONFSCDRS 82

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 82

FSCO A07-001346

BETWEEN:

VLADIMIR PANKRATOV

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: David Muir

Heard: May 21, 2008, in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.Written submissions were received on May 1 and May 15, 2008.

Appearances: Debra Lewis for Mr. Pankratov

George Mekaris for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Vladimir Pankratov, was injured in a motor vehicle accident on August 26, 2004. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties have been unable to resolve their disputes through mediation, and Mr. Pankratov applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue is:

Is State Farm entitled to an Order requiring that Mr. Pankratov produce tort materials or alternatively prepare an Affidavit of Documents of tort materials?

Result:

The Motion is dismissed.

EVIDENCE AND ANALYSIS:

Subsequent to the pre-hearing discussion on December 20, 2007, disputes arose respecting a number of documents that State Farm requested be produced.

The parties were ultimately able to resolve many of these issues themselves; however a Notice of Motion was served by State Farm seeking a number of Orders. Most of these issues were also resolved prior to the return date including the request for a Third Party Order. At the time and place set for the hearing of the Motion, all that remained was a request of State Farm for Tort documents. Mr. Pankratov took the position that the request was not particularized and as such was overbroad.

After hearing the submissions of the parties I ruled orally that the Motion for an Order requiring the production of the Tort material, or alternatively, an Affidavit of Documents on the Tort materials was denied. I did so for the following reasons.

The request was, as pointed out by Mr. Pankratov, not particularized and overbroad. Although said not to be a fishing expedition, the request cannot be otherwise characterized.

The request is too late. I note that it was not raised at the pre-hearing, but for the first time in a letter dated January 29, 2008. The request at that point was particularized as “tort documents”. The hearing is scheduled to begin on June 16, 2008.

Most importantly State Farm provided no reasons justifying such an Order. As I pointed out to the parties, the rule governing these issues was firmly established in CAA Insurance Company and Sandhu, (P01-00044, January 18, 2002).

As regards medical documents, the Director’s Delegate offered the following:

Any consideration of a request to order production of defence medicals must be made against the backdrop of the insurer’s ability to generate medicals within the FSCO proceeding. Section 65(1) of the SABS-94, authorizes the insurer to conduct medical examinations (“IEs”) “as often as reasonably necessary.” In addition, a dispute over a statutory accident benefit will often trigger an assessment at an independent, government sanctioned assessment centre (“DAC”) which sends a report to each party. As a result, an insurer defending a claim advanced at FSCO will rarely be able to assert that it needs the defence medicals to properly assess its exposure or assert its defence.

In the absence of some compelling reason why the medical reports obtained by the insurer pursuant to the SABS are insufficient, I would not grant the insurer’s request for production of the defence medicals from the tort file. The insurer is not prejudiced by the non-production, whereas production of the reports will inevitably and unnecessarily lengthen and complicate the arbitration proceeding.

As regards transcripts for discovery, which it was thought might exist in this case, the Director’s Delegate held as follows:

The third category of documents relates to transcripts from the examination for discovery. For the reasons noted above in relation to the relevance of the medical reports, I reject Mr. Sandhu’s submission that the transcript is not relevant. This category of documents provides the starkest example of the different procedures governing a civil proceeding and arbitration. FSCO’s processes do not include examinations for discovery. An insured person who elects to arbitrate, instead of bringing a civil action, forgoes the opportunity to conduct a pre-hearing examination of one of the insurer’s representatives. But correspondingly, he is not subjected to such an examination at the behest of the insurer. The insured person’s election must be honoured and given meaning. If the insurer can routinely obtain production of the discovery transcript from a related tort action, the parity identified at the top of the paragraph is lost.

Insurer’s will no doubt gain an advantage if they can obtain a transcript. If they cannot compel production of the transcript they lose that advantage, but the absence of an advantage is not necessarily the same as prejudice. To my mind, whatever small prejudice might exist, is far outweighed by the distortion of the process and the inherent unfairness of affording one party access to a pre-hearing discovery, but not the other.

There is no indication that State Farm has been in any way deprived of an opportunity to conduct assessments of Mr. Pankratov. The Affidavit of Mr. Curry filed in support of the Motion makes no reference at all to any reasons for the production of tort materials generally, or defence medicals in particular. Accordingly, there is simply no basis to make the Order being sought by State Farm.

EXPENSES:

Mr. Pankratov requested his expenses of the Motion. I declined to make an Order and the issues of expenses of this Motion is left to the hearing arbitrator.

May 23, 2008

David Muir

Arbitrator

Date