Neutral Citation: 2010 ONFSCDRS 128 FSCO A10-002558

BETWEEN:

RICHARD ABLARDE Applicant

and

AVIVA CANADA INC. Insurer

PRE-HEARING DECISION

Before: Arbitrator John Wilson Heard: October 26, 2010, by teleconference.

Appearances: Kandace Davies for Mr. Ablarde Angela Broccolini for Aviva Canada Inc.

Issues:

The Applicant, Richard Ablarde, was injured in a motor vehicle accident on August 20, 2007. He applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Ablarde applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing discussion of this case held on October 26, 2010, Aviva moved for a production order, compelling Mr. Ablarde to produce certain information beyond the time frame adopted in practice at the Commission and expressed in Practice Note 1 of the Dispute Resolution Practice Code.

The issues are:

Is Mr. Ablarde required to produce a decoded OHIP summary from the year 2000 and onwards as well as prescription records from the year 1990 onwards.

Result:

Mr. Ablarde shall make his best efforts to obtain and provide to Aviva a decoded OHIP summary for two years prior to the motor vehicle accident as well as any available prescription records for the same period.

EVIDENCE AND ANALYSIS

The key to fair and efficient hearings in the absence of oral discoveries is the basic rule that any relevant evidence that is not privileged is producible. Such documentary evidence, including extensive confidential medical records, employment records and internal insurance documents, can be primary resources to a party advancing his or her cause in an accident benefits arbitration.

While in the past parties often tried to keep the details of their case secret, and indeed it was considered in some quarters good form to conduct trial by ambush, both the courts and arbitrators have now noted a trend towards greater, earlier disclosure.

It is clear that arbitrators have significant discretion to order the production of documents that may be necessary to determine the issues in an arbitration. In addition to the provisions of the Dispute Resolution Practice Code and the Statutory Powers Procedure Act, section 22(1) of the Insurance Act specifically grants all the powers exercised by a Superior Court judge to compel the production of evidence in arbitrations.

It goes without saying, however, that the exercise of those powers in the context of statutory accident benefit arbitrations is governed by the requirements of the arbitration forum rather than the Rules of Civil Procedure. There do, however, remain many common fundamental principles.

Canadian law concerning the production of medical records in legal proceedings centres upon a balancing test in which the advantages of using patient information are weighed against the compromises to patient privacy and confidentiality compelled disclosure entails. This balancing of interests occurs in a production process in which a court or tribunal determines the likely existence and relevance of the contested medical information, assesses the potential consequences of its disclosure and fixes the permissible scope of its future circulation. This production procedure brokers the arguments and interests, but ultimately one set of values must prevail as the court will order production or it will not.²

The jurisprudence in Ontario has tended to focus on the public value of full disclosure in the context of litigation, subject only to the necessary limitations of relevance, and probative value.

In Domus, Master Polika summarized the criteria for production and their underlying rationale.

There is no dispute that the plaintiffs are entitled to production of any documentation that has a semblance of relevance to the matters in issue on both the certification and r. 20 motions. The general test of relevance applicable to both production of documents and to questions asked at examinations for discovery is semblance of relevance to the matters in issue as delineated by the pleadings. Underlying that very low test is the premise that admissibility and weight should be left to the trial judge and should not govern the production of documents or questions asked at examinations for discovery.³

Even if a document is confidential, in the absence of a specific privilege, it can be found producible by a party. The Court of Appeal in Cook v. Ip⁴ made it clear that the production obligation potentially includes all relevant documents, whether their content is otherwise confidential or private.

No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accident is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff’s medical records.⁵

Cory J.A. continued:

There is an inherent jurisdiction in the court to ensure that all relevant documents are before it. The court requires this jurisdiction in order to determine properly and fairly the issues between the parties. In R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479 at p. 484, [1954] D.L.R. 483 at p. 488, 109 C.C.C. 193, Rand J. expressed the principle in this way:

The prohibition of the statute is against disclosure to others than the departmental staff charged with the assessment but since the public interest in the administration of justice transcends that of any individual in the details of his ledger account, the ban is to be taken to be directed against a voluntary disclosure only and has no application to judicial proceedings. The intervention of the minister, as would be that of the person himself, is therefore ineffectual.

Even if one accepts that a waiver of privacy has taken place by applying for arbitration and that an insurer should be able to force its first-party insured to divulge sensitive details in a public forum, such disclosure should be restricted to that information that is relevant to the issues in dispute, and that has some potential probative value.

It should also be remembered that openness and disclosure in litigation is not necessarily the only public value in play in considering production orders.

In assessing these interests courts are concerned not only with threats to the dignity of the patient whose records are at risk of exposure in the instant case, nor only with relations between that patient and the therapists. They are also concerned with the consequences of ordering disclosure for all those who might seek assistance in the future and with all potential therapeutic relationships: that is, the general effects of acting on a disclosure rule are an important part of the analysis. It may not even be necessary for a person opposing production to establish that the patient whose records are under consideration will be harmed by their disclosure. It may be sufficient to argue that harm may accrue to others in similar circumstances in the future.⁶

Former Arbitrator Blackman in Campeau commented on the nature and kind of information disclosed, and the policy underlying the one-year rule in the disclosure of medical records at FSCO:

On the other hand, medical entries may note abortions, extra-marital affairs and a myriad of other extremely private matters. The relevance of these matters to a claim such as a soft-tissue disability, especially without any alleged emotional component, may be questioned. Nevertheless, without even a bald allegation of a causation issue, insurers are routinely provided with the entire clinical notes and records of an applicant’s medical practitioners from the standard period of one year prior to the motor vehicle accident, without any restriction to those entries which the applicant finds relevant.⁷

To substantially extend the generally accepted one-year production rule raises the issue of the balancing of private confidential information with the disclosure necessary to advance an arbitration.

In an appeal decision, Director’s Delegate Naylor attempted to summarize the practice at the Commission with regard to productions:

The Commission’s Practice Note No. 4, "Exchange of Documents," provides some guidance on the ambit of production in typical cases. It signals, for example, that in disability benefit cases, health records for the year before the accident generally are viewed as relevant. In effect, the guidelines suggest a presumption of relevance, reflecting the central importance of medical records relating to recent history in a determination of the nature of the person’s injuries and extent of the disability, while giving primacy in regards to less immediate history to the insured person’s interests in privacy. If an insurer seeks disclosure of records over a longer period, or if an insured person wants a more limited order, they will be expected to provide some basis for the request. Likewise, a party requesting other documents, including log notes, (which are not specifically addressed in the Practice Notes), is expected to provide a reasonable explanation as to how they have a bearing on the dispute.⁸

As noted, a person deviating from the current practice at the Commission “will be expected to provide some basis for the request.” Beyond one year one cannot presume relevance or probative value.

The basis put forward by the Insurer for requesting documentation going back a decade or more is relevance to the principal issue in this arbitration: Non-earner benefits.

To determine relevance it is important to consider first the necessary components of an evaluation of entitlement to a non-earner benefit.

Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant’s pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant’s post-accident condition.

Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snap-shot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.⁹

In this matter, what is relevant to the Non-earner benefit claim is a comparison of “the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident”, looking at “a reasonable period prior to the accident.”

While it is always possible that the existence of some complaint recorded inferentially in an OHIP summary some seven years before the accident in question might have some influence on activities of daily living in the months preceding the accident, I am not convinced that Aviva has made out any such linkage. Clearly, Mr. Ablarde, like most people approaching the half-century mark, has had previous medical complaints. That is not enough in this forum to make every listing of such a complaint for decades past relevant to the enquiry as to entitlement to benefits whose focus remains on “a reasonable period prior to the accident.”¹⁰

Although the Insurer’s submissions suggest that Mr. Ablarde may well have had some health complaints in the years prior to his accident, they do not speak to Mr. Ablarde’s activities of daily living prior to the accident and are not sufficient in themselves to demonstrate at least a semblance of relevance to the matters in issue as delineated by the pleadings. Nor do the materials requested seem likely to address the core issues in this arbitration. Consequently, I do not accept that it is either necessary or appropriate to order the production of the OHIP summary and prescription records going back to the millennium and beyond.

The Non-earner benefit, however, differs somewhat from many other accident benefits entitlements. Firstly, it is not payable for the first six months. Secondly, rather than looking at a short span of time to determine entitlement, one must examine the activities of daily living for “a reasonable period of time” both before and after a motor vehicle accident. Consequently, the one year suggested limit on medical productions may not always be appropriate.

Given that the analysis of pre-accident activities is not intended to be merely a brief snapshot of the days immediately prior to the accident, I would be prepared to expand slightly the time frame suggested by the Dispute Resolution Practice Code, in order to give some longitudinal depth to the period in question.

In this matter, I would consider that a maximum of two years prior to the accident would be sufficient to establish Mr. Ablarde’s activities and life circumstances prior to the accident.

Consequently, an order will go for Mr. Ablarde to make his best efforts to produce a decoded OHIP summary, and any available prescription records for a period of two years prior to the motor vehicle accident.

EXPENSES:

There shall be no order as to expenses.

November 4, 2010

John Wilson Arbitrator

Date

Financial Services Commission of Ontario