Financial Services Commission of Ontario
NOTE: ARBITRATOR DOES NOT WISH DECISION TO GO ON FSCO WEBSITE DUE TO CONFIDENTIALITY OF MINORS.
Neutral Citation: 2009 ONFSCDRS 84
FSCO A08-001529
BETWEEN:
KATRINA STORM CORKUM (minor)
Applicant
and
AXA INSURANCE (CANADA)
Insurer
MOTION DECISION
Before: Elizabeth Nastasi
Heard: By telephone conference call on June 24, 2009.
Appearances: Neil Jones for Ms. Corkum Jeffrey M.K. Garrett for AXA Insurance (Canada)
Issues:
The Applicant, Katrina Storm Corkum, was injured in a motor vehicle accident on September 10, 2005. She applied for and received statutory accident benefits from AXA Insurance (Canada) (“AXA”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Corkum 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 by telephone on June 24, 2009. AXA is seeking an order compelling production of the Children’s Aid Society (CAS) file for the Applicant, Ms. Katrina Corkum and her two sisters, Ms. Rachel Brake and Ms. Ashley Brake.
The issues are:
- Is AXA entitled to production of the CAS files of the Applicant Ms. Katrina Corkum and her sisters Ms. Rachel Brake and Ms. Ashley Brake?
Result:
- AXA is entitled to production of the CAS files of Ms. Katrina Corkum, Ms. Rachel Brake and Ms. Ashley Brake on the condition that these files not be released to any other third party and their use is restricted to the purposes of this arbitration proceeding except with consent of the CAS or subsequent order.
EVIDENCE AND ANALYSIS:
The Rule
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 in FORM F.
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; (c) the third party has had a reasonable opportunity to respond; and (d) the document is reasonably required to ensure a just and fair hearing
Service of Motion Record:
The Insurer provided a Statement of Service, together with a copy of a courier slip, which indicated that Ms. Jessica Beattie c/o Children’s Aid Society in Kitchener Ontario had been served with the Motion Record on June 16, 2009. Since the motion was returnable on June 25, 2009 the CAS was served and received 10 days to respond, as required by Rule 67.5 of the Code.
The Parties’ Positions
The Applicant, via her litigation guardian, Ms. Melvie Brake, consented to AXA obtaining an order for production of all three CAS files. Ms. Brake is litigation guardian for all three children.
Mr. Darcy Forbes, an associate with the law firm Dyer Brown LLP lawyers for AXA, swore an affidavit dated June 16, 2009. In a letter dated June 22, 2009, Mr. Forbes advised that he had been in contact with Ms. Jessica Beattie from CAS and that they would not be opposing the motion. However, they required an order to release the requested files.
The CAS did not attend at the motion or file a written response.
Ms. Corkum, born December 7, 1994, and her two sisters were passengers in a vehicle being operated by Ms. Corkum’s adoptive father at the time of the accident. The Applicant has made a claim for the following:
(i) attendant care benefits for the period from September 10, 2005 to September 10, 2007;
(ii) reimbursement for the cost of an Occupational Therapy assessment conducted by Therapy Partners on July 18, 2006; and
(iii) reimbursement for an RN assessment conducted by Kids Community Health Services.
The expenses submitted in relation to the Applicant’s attendant care needs suggest that she required constant care in particular when she was around her younger sisters - Rachel and Ashley Brake. At some point she was unable to continue living with her adoptive father and sisters after the accident.
The Applicant has a complex and unfortunate pre-accident history and has experienced a number of major stressors in her life. The CAS has been involved with the Applicant and her family both pre and post accident.
The threshold of establishing whether a document is relevant or not is lower at the pre-hearing stage than at the hearing itself. At this stage of the proceedings an item need only be “arguably relevant” to the specific issues referred to arbitration.2 However, given the sensitive nature of the information potentially contained in a CAS file, I must also consider the privacy concerns of the Applicant as well as her siblings in ordering the production of the documents in question.
I accept AXA’s position that the CAS records of both the Applicant and her siblings are relevant as there are periods of time when attendant care benefits are being claimed in which they all lived together in the same household. The overlapping care requirements of the Applicant and her siblings is relevant to the overall picture of the Applicant’s care needs and the specific care that was being provided. Further, I find that the Applicant’s CAS file is relevant in terms of whether her need for attendant care arose