Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 12 FSCO A09-000176

BETWEEN:

TRO VAN DUONG Applicant

and

NORDIC INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE: MOTIONS FOR: ADJOURNMENT, APPOINTMENT OF A REPRESENTATIVE AND PRODUCTION

Before: Arbitrator Denise Ashby Heard: By telephone conference call on November 29, 2009.

Appearances: Denny Hutner Pollock, agent on behalf of Renee Vinett, for Mr. Duong Michelle Mainprize for Nordic Insurance Company of Canada

Issues:

The Applicant, Tro Van Duong, was injured in a motor vehicle accident on November 5, 2007. He applied for statutory accident benefits from Nordic Insurance Company of Canada (“Nordic”), payable under the Schedule.¹ Nordic refused to pay certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Duong applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues are:

1. Is Mr. Duong entitled to an order removing Denny Hutner Pollock and appointing Renee Vinett of Howie, Sacks & Henry, as his representative of record, pursuant to Rule 9 of the Dispute Resolution Practice Code?

2. Will the hearing be adjourned pursuant to Rule 72 of the Dispute Resolution Practice Code?

3. Is Mr. Duong required to produce the documents, financial records, medical records, clinical notes and records of various treating health care providers and assessors, and particulars of services and the name and address of the service provider in respect of his claim for housekeeping as sought by Nordic, pursuant to Rule 32 of the Dispute Resolution Practice Code?

Result:

1. Denny Hutner Pollock is removed and Renee Vinett of Howie, Sacks & Henry, is replaced as Mr. Duong’s representative of record and Ms. Pollock is granted status as agent for Mr. Duong in this proceeding.

2. The hearing is adjourned to Monday, May 3, Tuesday, May 4, Wednesday, May 5 and Thursday, May 6, 2010.

3. On or before February 9, 2010, Mr. Duong shall produce to Nordic the following:

(a) reports relating to scans conducted on June 21, June 22, July 23 and October 12, 2007;

(b) copies of the clinical notes and records of Dr. Derrick Chan and Dr. Klar or in the alternative he shall write to St. Joseph’s Health Centre seeking the release of their clinical notes and records and produce a copy of his request.

(c) written requests for the release of the clinical notes and records of Dr. Van-Chun Tran, Dr. Paul Sullivan and Dr. Thao Nguyen.

4. The issue of expenses is deferred to the hearing Arbitrator. In the event the matter does not proceed to hearing, I encourage the parties to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

PROCEDURAL ISSUES:

On November 17, 2009, Nordic requested a motion for production on the basis that Mr. Duong had failed to produce relevant materials in anticipation of the hearing which was to commence on January 11, 2010. On November 26, 2009, the Commission issued a Notice of Motion setting December 16, 2009 as the date for the motion.

On December 10, 2009, Mr. Duong advised the Commission that he was seeking an adjournment of the hearing set for January 11 on the basis that he had retained new counsel.

The issues of the adjournment and appointment of Mr. Duong’s new representative were added as issues in the Motion hearing. The orders were given orally at the hearing with reasons provided herein.

EVIDENCE AND ANALYSIS:

Neither Nordic nor Mr. Duong submitted oral or documentary evidence in respect of the issues before me.

Rule 67.3(a) of the Dispute Resolution Practice Code (DRPC) requires a party, seeking an Order within a proceeding, to serve and file on the opposing party “any documents to be relied on.” Rule 67.5 requires the responding party to serve and file a written response together with any documents on which it relies within 10 days of being served by the moving party.

The failure of the parties to file documents supporting their positions has unnecessarily complicated my consideration of the issues. However, Rule 67.6 of the DRPC provides:

The adjudicator may determine the request on the basis of the documents and written submissions filed, or in such manner as the adjudicator considers appropriate.

Pursuant to Rule 67.6 I have relied upon the following correspondence which was exchanged between the parties and filed with the Commission:

1. Nordic’s letter dated August 6, 2009 enclosing the Insurer’s Amended Schedule “B”;

2. Nordic’s letter dated October 13, 2009 advising Mr. Duong of productions it considered outstanding;

3. Nordic’s letter dated November 17, 2009, seeking a date for this motion;

4. Nordic’s letter dated December 4, 2009;

5. Mr. Duong’s letter dated December 10, 2009 and Nordic’s response of the same date;

6. My letter dated December 11, 2009;

7. Nordic’s letter dated December 11, 2009;

8. Nordic’s letter dated December 15, 2009;

9. Ms. Vinett’s letter dated December 15, 2009 faxed to the Commission on December 16, 2009 at 10:10 a.m.

Appointment of Mr. Duong’s Representative and Adjournment of the Hearing:

Mr. Duong sought an adjournment of the hearing to four days commencing May 3, 2010. As well, he requested that Denny Hutner Pollock be removed as his representative of record and Renee Vinett replace her. Further, that Ms. Pollock represent Mr. Duong as agent at the motion.

On December 4, 2009, Nordic wrote to Ms. Pollock asking whether an adjournment was being sought. The letter indicates that there had been various requests of Mr. Duong’s representative for the particulars of the adjournment and its status. This letter was not responded to until December 10 at which time Ms. Pollock sought an adjournment on the basis that new counsel was being retained by Mr. Duong.

On December 11, 2009, I advised Mr. Duong and Ms. Pollock that the requirements of Rule 9 in respect of a change of representative must be complied with. Rule 9.5 of the DRPC provides:

A party who changes his or her representative must promptly notify the former representative, the other parties and the Dispute Resolution Group, in writing, of the name, address, telephone number and electronic transmission address (if any) of the new representative. The new representative must also confirm his or her appointment in writing. The Dispute Resolution Group is entitled to rely on the last written notification concerning a party’s representative contained in its files.

Rule 9.5 permits an adjudicator “to rely on the last written notification concerning a party’s representative.”

At the motion hearing, Ms. Pollock advised that it was always the intention that Mr. Duong would be represented at hearing by the firm of Howie, Sacks & Henry. However, Ms. Vinett only recently assumed carriage of the file.

I accepted the letter received at the Motion hearing as the last written notification that Mr. Duong intended to retain new counsel. Based on that notification, I ordered that Denny Hutner Pollock be removed as Mr. Duong’s representative of record and be replaced by Renee Vinett of Howie, Sacks & Henry. I further ordered that Ms. Pollock could appear as agent on the motion.

Rule 72 of the DRPC refers adjudicators, considering the issue of an adjournment, to the “Adjournments Policy found in Practice Note 9 under Section C of the Code.” Practice Note 9 does not provide specifically for adjournments where a party retains new counsel. The Commission has an obligation to conduct arbitrations quickly and efficiently without compromising fairness. No reasons were provided for Ms. Vinett’s recent assumption of Mr. Duong’s claim. However, it was apparent from the submissions in respect of the production issues that the matter was not ready to proceed to hearing on the scheduled date. Further, the adjournment is for a relatively short period and Nordic has consented to it. In order to facilitate a fair hearing, I adjourned the hearing to Monday, May 3, Tuesday, May 4, Wednesday, May 5 and Thursday, May 6, 2010.

Mr. Duong’s failure to inform both Nordic and the Commission of his intentions in respect of representation and seek an adjournment in a timely manner, compounded by his failure to respond to Nordic’s requests for production until the eve of this motion, has delayed the preparation of this matter for hearing. However, the impact of these factors on the arbitration process is a matter best dealt with at an expense hearing.

Production Issues:

On December 15, 2009, Nordic confirmed that it seeks an order of production for the following:

1. An updated decoded OHIP summary from October 20, 2008 and ongoing;

2. Clinical notes and records of Mr. Duong’s family physician Dr. Beharry;

3. Clinical notes and records of all treating physicians from three years pre-accident to present and ongoing, including but not limited to:

a. Dr. Van-Chun Tran;

b. Transcribed clinical notes and records of Dr. Nam Ahn Nguyen;

c. Dr. Derrick Chang;

d. Dr. Paul Sullivan;

e. Dr. Thao Nguyen;

f. Dr. Klar.

4. Complete clinical notes and records of all treating physicians and examining clinics, including all service providers, from three years pre-accident to present and ongoing, including but not limited to the following:

a. Dr. Awenus and Medical Rehab Centre;

b. Counselling and Psychological Services, Dr. Fiati;

c. Dr. Roland Wong;

d. Mega Assessment Centre.

5. Records from all hospitals attended from three years pre-accident to the present and ongoing, including but not limited to the hospital visited on June 11, 2005 as set out in the OHIP summary.

6. Ambulance call report dated November 5, 2007;

7. Copies of any x-ray reports, MRIs, CAT scans etc., from three years pre-accident to the present and ongoing, including but not limited to the scans conducted on the following dates: June 21 and 22, July 23, and October 12, 2007.

8. Prescription history from three years pre-accident to present and ongoing;

9. Defence medical reports from any tort action;

10. Particulars of any collateral benefits available and policies.

11. Advice regarding any prior or subsequent accidents and to provide particulars;

12. Full name, address and telephone number of all housekeeping and home maintenance service providers, along with a description of their relationship to the applicant and last known address.

13. A detailed breakdown of services with respect to housekeeping and home maintenance expenses.

14. Business income tax returns and notices of assessment, plus all supporting business financial documentation including statements of business activity from 2006 to date and ongoing, together with the business accountant’s file.

15. Copies of bank statements in respect of Mr. Duong’s personal and business accounts from 2006 to present and ongoing.

16. Full name, address and telephone number of Van Lac Nguyen.

Nordic submits that Mr. Duong has failed to show that he has used best efforts to secure the records and reports which are the subject of its Motion for Production. It also submits that Mr. Duong has pre-existing health issues which require that he produce his medical records for the three years prior to the accident of November 5, 2007. Further, Nordic submits that the financial information provided by Mr. Duong on or before December 14, 2009 is inadequate.

Mr. Duong submits that he has used his best efforts to obtain the medical notes and records of his treating and examining health professionals. He has provided, on or before December 14, 2009: his prescription history, defence medicals from the tort action, particulars of his collateral benefits, a statement regarding prior or subsequent accidents, the contact information for the housekeeping and home maintenance service providers and the services which were provided. Mr. Duong submitted that he has provided the clinical notes and records of the emergency doctors, Dr. Derrick Chang and Dr. Klar as part of the produced St. Joseph’s Health Centre records. Mr. Duong further submits that he has taken reasonable steps to locate Mega Assessment Centre which does not appear to exist. Further, Mr. Duong submits that he has produced all of his business and financial records available for his business.

Nordic acknowledged receipt of Mr. Duong’s further productions on December 14, 2009. It accepted that Mr. Duong made two requests for: updated OHIP summaries, the medical notes and records of Dr. Awenus of the Medical Rehab Centre, and Dr. Fiati of Counselling & Psychological Services. As well, Nordic accepts that Mr. Duong made three requests for the records of Dr. Roland Wong.

Medical Notes and Records:

Nordic has failed to provide a foundation for its claim that Mr. Duong has a pre-existing medical condition. Therefore, I decline to order production of Mr. Duong’s medical records beyond one year prior to the accident.

Nordic does not dispute and I accept that Mr. Duong has produced: prescription history, defence medicals from the tort action, particulars of his collateral benefits, a statement regarding prior or subsequent accidents, the contact information for the housekeeping and home maintenance service providers and the services which were provided. Further, Mr. Duong provided a statement that he was not transported to hospital by ambulance on the day of the accident and therefore there is no ambulance report. On the basis of the foregoing, an order for production of these records is unnecessary.

I find that, Mr. Duong has made reasonable efforts to obtain the following: updated OHIP summaries; the clinical notes and records of Dr. Awenus, Dr. Fiati and Dr. Roland Wong. Rule 67 requires that third parties be given notice of a party’s motion for production. No notice has been given to Dr. Awenus, Dr. Fiati and Dr. Roland Wong. Therefore, I decline to order production of these clinical notes and records. This is without prejudice to the parties’ right to bring a motion for third-party production.

I accept Mr. Duong’s submission that Dr. R. Beharry has sought payment in advance of releasing updated clinical notes and records and those in Mr. Duong’s control have been produced to Nordic. Therefore, this is an issue to be dealt with pursuant to Rule 67 as discussed above and I decline to make an order.

Nordic seeks an order requiring that Mr. Duong obtain a transcription of the clinical notes and records of Dr. Nam Ahn Nguyen on the basis that the records produced are illegible. Those records were not filed as part of the motion material and are not before me. Therefore, I cannot review them to determine whether Nordic’s request to have them transcribed is reasonable. Therefore, I decline to make an order.

Mr. Duong does not dispute that he has an obligation to produce diagnostic scans. I find his submission that they are contained in the doctors’ records inadequate. Nordic has sought the reports of specific scans. Mr. Duong has an obligation to provide those reports to Nordic. It is unreasonable to require Nordic to cull through all the produced medical reports to find scan results. Therefore on or before February 9, 2010, Mr. Duong shall provide Nordic with reports relating to scans conducted on June 21 and 22, 2007; July 23, 2007 and October 12, 2007.

I decline to order production of unspecified reports relating to scans which may or may not have been conducted since November 5, 2006.

I do not accept that the medical notes and records of Dr. Derrick Chan and Dr. Klar have been produced as part of the St. Joseph’s Health Centre records. Therefore, on or before February 9, 2010, Mr. Duong shall provide Nordic with copies of their records or in the alternative, he shall write to St. Joseph’s Health Centre seeking their release.

Similarly, I am not satisfied that Mr. Duong has produced or has used his best efforts to obtain the records of Dr. Van-Chun Tran, Dr. Paul Sullivan and Dr. Thao Nguyen. Therefore, on or before February 9, 2010, Mr. Duong shall make written requests for their clinical notes and records and provide a copy of those requests to Nordic.

Financial Records:

I accept Mr. Duong’s submission that he has produced all of his business records and financial statements in respect of his business. Therefore, no order is necessary.

Nordic has not provided a foundation for finding that Mr. Duong’s personal bank statements are relevant to the issues in dispute. Therefore, I find that such an intrusion into his personal finances is unwarranted and I decline to make an order requiring him to produce them. Similarly, Nordic did not give any basis for seeking the name, address and telephone number of Van Lac Nguyen. As I cannot make a determination of his relevance to these proceedings I decline to order the production of the information sought.

EXPENSES:

The parties made no submissions with respect to expenses. This issue is deferred to the discretion of the hearing arbitrator. In the event the matter does not proceed to hearing, I encourage the parties to resolve the issue, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

January 26, 2010

Denise Ashby Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. On or before February 9, 2010, Mr. Duong shall produce to Nordic the following:

(a) reports relating to scans conducted on June 21, June 22, July 23 and October 12, 2007.

(b) copies of the clinical notes and records of Dr. Derek Chan and Dr. Klar or in the alternative he shall write to St. Joseph’s Health Centre seeking the release of their clinical notes and records and produce a copy of his request.

(c) Copies of written requests for the release of the clinical notes and records of Dr. Van-Chun Tran, Dr. Paul Sullivan and Dr. Thao Nguyen.

January 26, 2010

Denise Ashby Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.