Neutral Citation: 2010 ONFSCDRS 36 FSCO A09-001241

BETWEEN:

KEVIN REGELOUS Applicant

and

ECHELON GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Anne L. Sone Heard: March 19, 2010, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Stanley B. Pasternak for Mr. Regelous Angela James for Echelon General Insurance Company

Issues:

The Applicant, Kevin Regelous, was injured in a motor vehicle accident on October 6, 2006. He applied for and received statutory accident benefits from Echelon General Insurance Company (“Echelon”), payable under the Schedule.¹ Echelon terminated weekly income replacement benefits on August 9, 2007. The parties were unable to resolve their disputes through mediation, and Mr. Regelous 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 on March 19, 2010 to compel production from third parties. The Applicant, Kevin Regelous, consented to Echelon obtaining orders for production against the third parties in connection with a motor vehicle accident which took place on October 6, 2006.

The issues in dispute at the arbitration hearing were identified and agreed to at a pre-hearing held on August 25, 2009. They are as follows:

Is Mr. Regelous entitled to receive a weekly income replacement benefit at the rate of $400 per week from August 10, 2007 and ongoing, pursuant to section 4 of the Schedule?
Is Mr. Regelous entitled to receive a medical benefit for $2,390.57 for massage therapy and acupuncture recommended by Ms. Angela Matei in a treatment plan dated June 28, 2007, claimed pursuant to section 14 of the Schedule?
Is Echelon liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Regelous?
Is Echelon liable to pay Mr. Regelous’ expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Regelous liable to pay Echelon’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Regelous entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Motion Issue:

Is Echelon entitled to production from the Ministry of Community and Social Services of Mr. Regelous’ complete Ontario Works file, which includes Mr. Regelous’ Ontario Disability Support Pension file?²

Motion Issue Result:

Echelon is entitled to production from the Ministry of Community and Social Services of Mr. Regelous’ complete Ontario Works file, which includes Mr. Regelous’ Ontario Disability Support Pension file.

Rules:

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.

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;

(d) the document is reasonably required to ensure a just and fair hearing.

Outstanding Productions:

Ms. Angela S. James, an associate with the law firm Laxton Glass LLP (“Laxton”), solicitors for the Insurer, Echelon, advised me at the motion hearing of the outstanding productions Echelon required. She also advised me of the efforts that have been made to obtain the documents that Echelon is seeking from the third party.

Ministry of Community and Social Services

In a letter dated November 10, 2009, Mr. Pasternak, Mr. Regelous’ legal counsel, wrote to the Ministry of Community and Social Services. In this letter, he requested a complete copy of Mr. Regelous’ Ontario Works Benefits file. He also enclosed an Authorization signed by Mr. Regelous consenting to the release of this file to Mr. Pasternak.

Mr. Pasternak did not receive a reply to this letter.

In a letter dated February 11, 2010, and stamped “URGENT”, Mr. Pasternak sent a copy of the previous letter to the Ministry of Community and Social Services with the same request.

Again, there was no reply to this letter.

Service of Motion Record:

Echelon provided an Affidavit of Service which indicated that the Ministry of Community and Social Services had been served with the Notice of Motion and supporting documentation by March 9, 2010. Since the motion was returnable on March 19, 2010, the Ministry received 10 days to respond, as required by Rule 67.5 of the Code.

Response of Third Party to the Notice of Motion and Supporting Documentation:

The Ministry of Community and Social Services did not reply to the Notice of Motion and supporting documentation that Echelon served on it.

Conclusion:

In order for me to make an order for production against a third party, I have to be satisfied that the above four requirements listed in Rule 67.7 of the Code have been fulfilled.

Based on the correspondence, I find that Mr. Regelous has made reasonable attempts to obtain the documents sought, and that these documents are in the possession, control or power of the third party, the Ministry of Community and Social Services.

The third party, the Ministry of Community and Social Services has had a reasonable opportunity to respond to Mr. Pasternak’s two written requests and to the Notice of Motion and supporting documentation.

I am satisfied that the documentation sought from the Ministry of Community and Social Services is relevant to whether Mr. Regelous suffers from a substantial inability to perform the essential tasks of his prior employment. Since income replacement benefits are in issue between the Applicant and the Insurer, this documentation is reasonably required to ensure a just and fair hearing of the issues in dispute in this Arbitration.

Accordingly, I order the Ministry of Community and Social Services to produce Mr. Regelous’ complete Ontario Works file, which includes Mr. Regelous’ Ontario Disability Support Pension file to Echelon.

March 26, 2010

Anne L. Sone Arbitrator

Date

Financial Services Commission of Ontario