Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 121
FSCO A09-000114
BETWEEN:
C. C.
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Arbitrator Suesan Alves
Heard: By written submissions received by August 21, 2009.
Appearances: David S. Wilson for Ms. C.C. Ian D. Kirby for Economical Mutual Insurance Company
Issues:
The Applicant, Ms. C.C., was injured in a motor vehicle accident on December 5, 2005. She applied for arbitration in relation to her claims for post-104 week income replacement benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.1 Economical disputes Ms. C.C.’s entitlement to the relief she claims.
At the pre-hearing, counsel for the Applicant sought a production Order with respect to surveillance. The Insurer subsequently agreed that it would produce all of its surveillance 90 days before the hearing. Counsel for the Applicant now seeks an Order compelling the Insurer to produce any additional surveillance no later than 15 days after it receives any such documents.
The Insurer disagrees that it should be obliged to do so and submits that the Order is largely moot.
The issues in this hearing are:
- Should an Order be made compelling the Insurer to produce any additional surveillance no later than 15 days after it receives any such documents?
Result:
- The further Order sought is moot. The motion for a further Order is dismissed.
EVIDENCE AND ANALYSIS:
Background
In this arbitration, the Applicant claims post-104 week income replacement benefits, interest and expenses. The Insurer disputes that the Applicant has any such entitlement and seeks its arbitration expenses.
At the pre-hearing conducted in April 2009, counsel for the Applicant sought production of the Insurer’s surveillance 90 days before the date on which the hearing was scheduled to commence. Counsel for the Insurer took this request under advisement, and a process was set for counsel to exchange and file written submissions if they were unable to reach agreement on this question within a week of the pre-hearing.
In May 2009, counsel for the Applicant filed written submissions and sought an Order requiring the Insurer to determine whether it intended to rely on any surveillance it had conducted and to inform the Applicant of its intention within 60 days of the pre-hearing. He also sought an Order that all surveillance be produced at least 90 days before the arbitration hearing.
In June 2009, counsel for the Insurer provided counsel for the Applicant with all surveillance conducted to date.
Counsel for the Applicant then moved for further Orders requiring the Insurer to provide any additional surveillance in a timely manner and no later than 15 days after it received any such surveillance; and an Order that all surveillance be produced within 90 days prior to the arbitration hearing.
In August 2009, counsel for the Insurer agreed that he would produce any additional surveillance 90 days before the arbitration hearing. However, he did not agree to the Applicant’s further request that any additional surveillance be produced no later than 15 days after the Insurer receives such documents. Counsel for the Insurer submitted that he could see no reason for the further stipulation. He submitted that since the hearing was scheduled to commence on December 7, 2009 and the 90-day mark was approaching, the Order sought was largely moot and unnecessary.
Analysis & Findings
Rule 40 of the Dispute Resolution Practice Code—Fourth Edition, Updated October 2003, (“the Code”) requires a party to produce all surveillance documents relating to the issues in dispute to the other party, when it intends to introduce any surveillance evidence at a hearing. These documents must be produced to the other party at least 30 days before the hearing. The 30 day period may be lengthened by agreement of the parties or by Order of an arbitrator, depending on the circumstances of the case.
In Soufan and Aviva Canada Inc., (FSCO A08-000612, August 19, 2008), I considered the question of the timely disclosure of surveillance evidence in arbitration proceedings. I concluded that in every case in which an Applicant wished to respond to an Insurer’s surveillance with medical opinion evidence, the production of surveillance 30 days before the hearing was inadequate. This was so for two reasons.
Firstly, the Code requires the Applicant to serve the Insurer with the medical opinion responding to the surveillance, or a document which sets out the substance of the facts and the opinion of an expert 30 days before the hearing, on the same day the Insurer is obliged to produce the surveillance. Except in the rarest of cases, it will be impossible for the Applicant to comply with these requirements.
Secondly, if the Applicant chooses to respond to the surveillance through the testimony of an expert who is scheduled to testify at the hearing, most of that expert’s fees for reviewing the surveillance would be personally borne by an Applicant, even when the surveillance did not impugn or discredit the Applicant’s claim and when the Applicant was awarded expenses of the arbitration.
This is because the Tariff permits limited fees for the preparation time of an expert who testifies at the hearing, and more generous amounts for the preparation of an expert report.2 While there are sound policy reasons for the Tariff structure, the effect nevertheless created an injustice for Applicants who wished to adduce such evidence. To alleviate that injustice I ordered production of the Insurer’s surveillance 90 days before the date the hearing was scheduled to commence.
In this case, counsel for the Insurer agreed to produce the surveillance 90 days before the hearing. I find that this allows the Applicant ample time to consider and respond to surveillance evidence with medical evidence.
When the Applicant sought the further Order requiring the Insurer to provide any additional surveillance in a timely manner in June 2009, there would have been more than 2 months during which the Insurer could have conducted further surveillance before the 90-day period would commence.
However, by the time counsel for the Insurer provided his submissions in August 2009, there were approximately 18 days before the date on which the Insurer had agreed to produce all of its surveillance. As I calculate it, the 90 days before the hearing commenced September 8, 2009. That date has now passed. Thus, due to the passage of time, the further Order requested by the Applicant has become moot. On this basis, I decline to make the further order sought.
September 10, 2009
Suesan Alves Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 121
FSCO A09-000114
BETWEEN:
C. C.
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The Applicant’s motion for an Order compelling the Insurer to produce any additional surveillance no later than 15 days after it receives any further surveillance is moot due to the passage of time and is dismissed.
September 10, 2009
Suesan Alves Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- This assumes that the hearing arbitrator permits the expert to give opinion evidence outside the four corners of an existing report.