Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 106
FSCO A09-000008
BETWEEN:
TRISTA POUTNEY
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator John Wilson
Heard: July 24, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Steven Foster for Ms. Poutney
Daniel Strigberger for Economical Mutual Insurance Company
Issues:
The Applicant’s father, Mr. Douglas Poutney, was killed in a motor vehicle accident on August 17, 2006. Ms. Poutney applied for death benefits (part of the statutory accident benefits in the late Mr. Poutney’s automobile insurance policy) from Economical Mutual Insurance Company (“Economical”), on the basis that Ms. Trista Poutney was, at the time of the accident, a dependant of the deceased.
Economical declined to pay a dependant death benefit, since it considered Ms. Poutney not to have been dependent on her father at the time of the accident.
The parties were unable to resolve their disputes through mediation, and Ms. Poutney applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8., as amended.
As part of the arbitration proceedings in relation to the issue of dependency, Ms. Poutney needed access to her father’s financial records, which she believed to be in the hands of her brother, Mr. Bradley Poutney. Mr. Poutney did not accede to his sister’s request.
The Issue in this Motion is:
- Is Ms. Poutney entitled to an order that Mr. Bradley Poutney release to her any documents or financial records, referred to in her notice of motion, in his possession or under his control relating to the deceased Mr. Douglas Poutney?
Result:
- Ms. Poutney is entitled to an order that Mr. Bradley Poutey release to her any documents or financial records, referred to in her notice of motion, in his possession or under his control relating to the deceased Mr. Douglas Poutney.
EVIDENCE AND ANALYSIS:
The Insurance Act at section 22 provides arbitrators with wide-ranging powers to compel the production of documents in the context of an arbitration.
22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions.
The Dispute Resolution Practice Code outlines specific requirements for those production orders to be made against non-parties.
67.4 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 in FORM F.
67.7 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.
I have no doubt that the late Mr. Poutney’s financial records would be relevant and of some assistance in deciding the issue of whether or not Ms. Poutney was a dependant for the purposes of a death benefit claim under the Schedule.
Ms. Poutney has supported her motion by her own affidavit in which she contends that following Douglas Poutey’s death, “my brother Bradley took over administration of my father’s affairs including to take possession of his personal effects.” She also stated, “that if anyone has financial records of my father it would be my brother.”
Since Mr. Bradley Poutney did not see fit to appear on the motion, although duly served,
Ms. Poutney’s evidence in uncontradicted. In the context of this case it is also credible.
Ms. Poutney has stated that any documents in her brother’s hands are essential to her case, since even such basic identifiers as social insurance numbers are unknown to her.
As noted earlier, I am satisfied that Mr. Bradley Poutney was properly served with notice of this application and had an opportunity to respond to the motion.
Consequently, I find that Ms. Poutney is entitled to an order that her brother produce the documents referred to in the notice of motion.
July 29, 2009
John Wilson
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 106
FSCO A09-000008
BETWEEN:
TRISTA POUTNEY
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under sections 22(1) and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Bradley Poutney said to reside at [address omitted] shall forthwith deliver up to Arnold, Foster, Barristers and Solicitors, [address omitted] the solicitors for Ms. Trista Poutney:
All financial records of or related to the late Douglas Poutney, who passed away on August 17, 2006, including copies of any and all, tax returns and notices of assessment, employment and payroll records, bank statements, credit card statements, loan applications and agreements, accounting and bookkeeping records, invoices and bills of account paid or incurred by the deceased, social insurance card, funeral and testamentary expenses, except in the care of funeral and testamentary expenses which were incurred after the date of death.
- In the event that none of the above-mentioned documents or records are or have been in the care or control of Mr. Bradley Poutney, he shall, within thirty days of the date of this order, provide a written statement documenting his efforts to locate the above documents, and providing any information that he may have as to their existence and their location, or the circumstances of their destruction or loss, failing which Ms. Poutney will be permitted to undertake any further legal steps to obtain Mr. Bradley Poutney’s compliance with this order.
July 29, 2009
John Wilson
Arbitrator
Date