Dwight Ricardo Allen v. Economical Mutual Insurance Company, 2010 ONFSCDRS 102

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 102

FSCO A09-001264

BETWEEN:

DWIGHT RICARDO ALLEN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator John Wilson

Heard: By telephone conference call on August 6, 2010.

Appearances: Eric Boschetti for Mr. Allen

Ashley Leon for for Economical Mutual Insurance Company

Issues:

The Applicant, Dwight Ricardo Allen, claimed to have been an active student at the Academy of Learning prior to the motor vehicle accident on February 19, 2008.

Mr. Allen applied for statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical refused certain accident benefits claimed by Mr. Allen. The parties were unable to resolve their disputes through mediation, and Mr. Allen 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 Mr. Allen liable for Economical’s expenses thrown away in bringing its third-party production motion?

Result:

Any determination of expenses should be left to the hearing arbitrator.

A pre-hearing took place on January 20, 2010. A further resumed pre-hearing took place on March 5, 2010.

Among the benefits claimed by Mr. Allen were lost educational expenses that were related to his attendance at the Academy of Learning.

From even before the date of the first pre-hearing Economical wanted access to the Academy of Learning file to determine whether Mr. Allen had, due to the motor vehicle accident, incurred lost educational expenses of a nature that would be compensable.

Early on, Economical obtained an authorization from Mr. Allen to obtain his records from the Academy. According to Ms. Friedman’s affidavit evidence, letters were sent to the Academy requesting complete copies of all of Mr. Allen’s records, from as early as May 4, 2009. These were repeated June 12, September 9, and November 12, 2009.

Ms. Ng, then counsel for Mr. Allen, resisted the production of a variety of records, but consented to the production of the Academy records. Consequently, at the pre-hearing on January 29, 2010 I made no production orders related to the Academy records.

In addition Ms. Ng agreed that Mr. Allen would attend at the Academy to obtain his file.

Unfortunately, while Mr. Allen attended at the Academy, he only obtained four documents. Ms. Friedman states that “ they are not a complete record of the Applicant’s academic career with the Academy of Learning.”

Mr. Allen, in his own affidavit stated:

I was given no other documents at that time and have not received any other documents from the Academy of Learning with respect to my request for my complete student file since that time.

It is clearly Mr. Allen’s position that he actually requested “my complete student file.”

The missing documents were again brought to the attention of Mr. Allen and his counsel by Economical on March 10 and March 19, 2010. A further letter was sent May 10, 2010. Mr. Allen and his counsel took no further steps to obtain the balance of the documents.

Consequently, Economical brought a third party production order to compel Academy to produce its complete file for Mr. Allen.

Ultimately, almost on the eve of the motion hearing, the Academy wrote to confirm that it had now provided its complete file. As well, on August 4, 2010 Academy wrote a letter to counsel for Economical advising essentially that it had given over all the documents requested by Mr. Allen when he attended at their offices in February 2010.

There being no need for a further production order, Economical now claims its expenses. It suggests that but for the motion for production, the Academy file would never have been produced. Indeed it asks me to infer from the circumstance surrounding the partial production in March that Mr. Allen, did not indeed request the complete file.

Accordingly, due to your client’s failure to produce the entire file (which the Academy of Learning confirms was available to your client) the insurer has costs thrown away with regard to having to bring the motion.

While it is conceivable that Mr. Allen or his counsel set out to thwart full production of this file, it is also conceivable that Mr. Allen was unaware of the extent of the documentation in the file, or, was provided what he thought was the full file by Academy.

While Mr. Allen and his counsel may not have gone to great lengths to obtain the complete file in a prompt manner, there is no dispute that Mr. Allen at least attended personally at the offices of the Academy in an attempt to obtain the necessary file.

If anyone should be singled out for censure, it is the conduct of Academy in refusing to act on the releases signed by Mr. Allen, despite the repeated reminders from Economical. In light of this prolonged non-co-operation, Academy’s second-hand and self-serving suggestion that Mr. Allen may not have requested the full file lacks sufficient weight to found an expense order against Mr. Allen.

There are significant differences between the parties concerning just what Mr. Allen did when he attended at the Academy offices to obtain his records. This is not the sort of difference that can be resolved by affidavit evidence. A motion for production is simply not an appropriate forum to make such a determination. Rather, it should be made on a more complete record.

Any order of expenses at this point in the arbitration process would be an interim order, one that is at the discretion of the arbitrator and not available as of right.

There may well be grounds for an order of expenses, since the Insurer was put to extra time and expense to obtain documents that Mr. Allen was obliged to produce. In exercising a discretion to make such an order at this time, or not, I should be wary of raising undue obstacles in the path of legitimate claimants, and unduly encumbering access to accident benefits.

These concerns should be balanced with a need to encourage parties to abide by production orders and undertakings, and to avoid permitting one party or another to abuse the arbitration process.

While I understand Economical’s frustration with Mr. Allen’s delays in fulfilling other production obligations arising from pre-hearing orders, I find that there is no clear evidence of abuse nor any overriding need to exercise my discretion to order compensation for expenses thrown away at this motion hearing at this time.

Rather I would prefer to leave the issue of all expenses, including those related to this production motion to the hearing arbitrator.

August 19, 2010

John Wilson

Arbitrator

Date