Nabad Dhrolia v. TTC Insurance Company Limited, 2010 ONFSCDRS 71

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

Neutral Citation: 2010 ONFSCDRS 71

FSCO A08-002660

BETWEEN:

NABAD DHROLIA

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

DECISION ON A MOTION

Before: Richard Feldman

Heard: By way of written material received by May 25, 2010.

THIS MOTION IS FOR:

An order requiring production of the following documents and information pursuant to Rule 32 of the Dispute Resolution Practice Code (“Code”):

a. Affidavit(s) of Litigation Guardian from 2000 motor vehicle accident or alternatively redacted affidavit of litigation guardian with all portions relevant to future treatment and care of Nabad Dhrolia provided;

b. Settlement Disclosure Notice from accident benefits settlement of 2000 motor vehicle accident;

c. File from the office of the Public Guardian and Trustee pertaining to Nabad Dhrolia or medical reports contained in the file and redacted other documents with all portions relevant to future treatment and care of Nabad Dhrolia provided; and

d. Provision of the names of all caretakers for the Applicant from two years prior to the accident (i.e., May 30, 2005) to date along with details as to the care provided.

An order granting a stay of the arbitration proceeding, a stay of benefits payable and interest and/or such other relief as the arbitrator decides is just until such time as the Applicant complies with the March 25, 2010 order of Arbitrator Feldman with respect to the following:

a. The Applicant or Applicant’s counsel provides written confirmation that the November 10, 2003 order appointing Almas Jiwani as substitute decision maker for Nabad Dhrolia remains in effect and that no other person or agency has legal authority to instruct them with respect to this matter; and

b. The Applicant or counsel provides the completed and executed Form P (representing Minors and Mentally Incapable Persons).

An order that the Applicant’s counsel confirm that there is now a valid litigation guardian who has been advised of the issues in dispute in the arbitration and has provided instructions to continue the arbitration, or alternatively, to confirm that the present substitute decision maker does not wish to continue the arbitration.

Result:

Within 30 days of the date of this order, the Applicant shall provide to TTC the following information (to the extent that such information is known to her or her counsel or her substitute decision maker or is reasonably obtainable by them):

a. The name, address and telephone number of any person who has provided attendant care and/or housekeeping services to the Applicant for the period from May 30, 2005 to the present; and

b. Particulars of the services provided to the Applicant by each of these individuals (including the nature of services provided, dates, times and number of hours).

Within 30 days of the date of this order, the Applicant shall provide to TTC a copy of the Settlement Disclosure Notice related to the settlement of the application for accident benefits arising from her motor vehicle accident of October 21, 2000.

EVIDENCE AND ANALYSIS:

Background:

It is undisputed that the Applicant, Nabad Dhrolia, was seriously injured in a motor vehicle accident on October 21, 2000. As a result of that accident, two separate legal proceedings were commenced on behalf of the Applicant: one at the Financial Services Commission for statutory accident benefits and another in the Superior Court of Justice for damages in tort. In November 2003, Almas Jiwani, the sister of the Applicant sought and obtained a court order under the Substitute Decisions Act, appointing her as property guardian with respect to all of the property of Nabad Dhrolia. Subsequently, both legal proceedings were settled. Aylesworth LLP (in particular, Joseph Falconeri) acted for the Applicant in those proceedings. In the course of the current proceeding, the Applicant’s legal representatives have voluntarily disclosed to TTC Insurance Company Limited (“TTC”) the substantial monetary sums for which the previous tort action and the previous application for accident benefits were settled.

The basis for this current proceeding is the allegation that the Applicant was injured in a motor vehicle accident on May 30, 2007. She applied for statutory accident benefits from TTC, payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain benefits. The parties were unable to resolve their disputes through mediation and, in December 2005, counsel for the Applicant (Barry Munro of Aylesworth LLP) filed this application for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The application for arbitration was signed only by Mr. Munro and, in the application, it is indicated that the Applicant is not mentally incapable. No Form P was attached to the application for arbitration.²

In this application, the Applicant is claiming the following:

Non-earner benefits in the amount of $185.00 per week from December 15, 2007 onwards;
Medical benefits for the cost ($3,463.56) of treatment recommended in a plan dated October 17, 2007 from W. Wan at Fox Rehabilitation;
Attendant care benefits in the amount of $3,000.00 per month for the services of Yasmin Dhrolia from May 30, 2007 onwards;
Housekeeping and home maintenance services in the amount of $100.00 per week for the services of Yasmin Dhrolia from May 30, 2007 onwards;
The cost of a psychological report ($1,870.00) and a physiotherapy report ($404.96), both from Fox Rehabilitation;
A special award;
Interest; and
Expenses.

At some point following the commencement of this application, Mr. Falconeri and Mr. Munro left the firm of Aylesworth LLP and started their own practice. They continued to represent the Applicant in this proceeding.

TTC is taking the position that the accident in which the Applicant was involved while a passenger on a TTC vehicle in May 2007 was minor in nature. TTC disputes that the Applicant suffered any injuries or impairments as a result of the May 2007 incident. Even if she did suffer some impairments as a result of the May 2007 accident (which is not admitted), TTC questions what treatment or assistance, if any, the Applicant has required as a result of this accident, as opposed to that which she already required because of the serious impairments she suffered as a result of the October 2000 accident. TTC has therefore sought disclosure of all relevant information concerning the Applicant’s impairments that resulted from the October 2000 accident and concerning her health, generally, and any medical or rehabilitation assistance, attendant care, housekeeping or other forms of assistance she was receiving in the years leading up to the May 2007 accident. For some time, TTC has also been seeking clarification as to who has been instructing counsel for the Applicant, if the Applicant is not competent herself to give such instructions.

Capacity of the Applicant and Counsel’s Authority to Act

There have been many attempts to clarify this issue, including two resumptions of the pre-hearing discussion. It is now undisputed that the Applicant is a person under a disability. In my letter of March 25, 2010, I ordered Applicant’s counsel to serve and file the following:

A copy of the order of November 10, 2003 in which Almas Jiwani was appointed as property guardian with respect to all of the property of Nabad Dhrolia;
Written confirmation from counsel for the Applicant that the order of November 10, 2003 remains in effect and that no other person or agency has legal authority to instruct counsel with respect to this matter; and
A completed and executed Form P.

All of the above orders have now been satisfied. A copy of the order of November 10, 2003 has been served and filed. A completed Form P, signed by Almas Jiwani, has also been served and filed. Finally, Mr. Falconeri (in his responding motion material, paragraph 17) has confirmed in writing that the order of November 10, 2003 remains in effect and that no other person or agency has legal authority to instruct the Applicant’s counsel in this matter. Given the foregoing, I am not prepared to make any further orders at this time concerning this issue.

Production of Documents and Provision of Information

TTC is seeking an order requiring production of the following documents and information pursuant to Rule 32 of the Code:

b. Settlement Disclosure Notice from accident benefits settlement of 2000 motor vehicle accident;

d. Provision of the names of all caretakers for the Applicant from two years prior to the accident (i.e., May 30, 2005) to date along with details as to the care provided.

Rules 32.2 and 32.3 of the Code provide as follows:

32.2 Subject to the time lines under Rule 39, the parties have an ongoing responsibility to ensure the prompt and complete exchange of documents that are reasonably necessary to determine the issues being arbitrated, including updates to the information previously exchanged and any additional documents obtained.

32.3 Subject to Rule 39, an arbitrator may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate.

No affidavit has been submitted as part of the responding material filed on behalf of the Applicant. Furthermore, the submissions filed on behalf of the Applicant do not specifically indicate whether the Applicant objects to producing the documents or providing the information sought in this motion by TTC. In some cases, that may be because the Applicant has actually produced, as part of the responding material, the documents being requested by TTC. Where the Applicant has not specifically objected to the relief claimed by TTC herein, I will treat the TTC’s motion as being unopposed.

With respect to the Office of the Public Guardian and Trustee, Mr. Falconeri has advised that, after making enquiries of the Office of the Public Guardian and Trustee (and contrary to what he indicated at the pre-hearing conference), there is no file with the Public Guardian and Trustee concerning the Applicant and the Public Guardian and Trustee has never acted on behalf of the Applicant. That is the answer to that undertaking. The Applicant and her counsel are obliged to correct this response if any contrary information comes to light. I see no need to make any order with respect to this issue at this time.

With respect to the request for provision of the names of all caretakers for the Applicant from two years prior to the accident (i.e., May 30, 2005) to date along with details as to the care provided, since the information sought may be relevant to the issues in dispute in this application and since the Applicant has not objected, I will order the Applicant (through her counsel) to provide this information within 30 days (and with greater particularity than is provided in paragraph 19 of the responding motion material filed on behalf of the Applicant).³

With respect to the requested Affidavit(s) of Litigation Guardian from the 2000 motor vehicle accident (or alternatively redacted affidavit of litigation guardian with all portions relevant to future treatment and care of Nabad Dhrolia provided), I would not normally order disclosure of information concerning settlement of a tort proceeding as it is generally considered privileged and is not normally relevant to or probative of the issues in dispute. In this case, however, the Applicant’s counsel has already voluntarily disclosed much information about the settlement of the proceedings concerning the 2000 accident, including the value of the settlements. In the responding motion material, Mr. Falconeri has provided a copy of his affidavit in support of the tort settlement as well as a copy of the affidavit of Almas Jiwani. It therefore appears that the TTC has been provided with the documents it was seeking and that no order is required in this regard.

With respect to the requested order for production of the Settlement Disclosure Notice from the accident benefits settlement of the 2000 motor vehicle accident, I would normally be reluctant to make such an order. Privilege could well attach to such a document. Furthermore, the amount of the settlement may be a poor indication of the Applicant’s actual needs. Additionally, the amounts that may be identified in the Settlement Disclosure Notice as having being paid towards certain classes of benefits may reflect, at best, the expectation of the parties at the time of the settlement and may not reflect the Applicant’s actual needs just before the accident in 2007. Nevertheless, the Applicant has already disclosed the total amount of that settlement. She has not claimed any privilege over this document. Also, she has already provided similar information with respect to the settlement of the related tort proceeding. The Settlement Disclosure Notice is at least arguably relevant to the issue of the Applicant’s condition and needs prior to the accident in May 2007, in that it may disclose how much money was earmarked for future attendant care, future housekeeping/home maintenance and/or future medical or rehabilitation benefits. There is no evidence that this document is not within the Applicant’s possession, control or power and she has not specifically objected to producing this document. I shall therefore order its production.

Finally, Mr. Falconeri, in his written submissions (received May 13, 2010), indicated that he has had difficulty obtaining all of the documents related to the Applicant that are in the possession of his former firm, Aylesworth LLP and that he only recently learned that Aylesworth LLP may have in its possession “a few more boxes” that it has not yet produced. With respect to documents related to the Applicant that may be in the possession of Aylesworth LLP and that have not yet been delivered to Falconeri Munro Tucci LLP, I have been invited by both parties to this motion to make an order against Aylesworth LLP compelling delivery of such documents forthwith. As far as I am aware, no such relief was originally sought as part of this motion and Aylesworth LLP has not been served with any notice of these proceedings nor has it been made a party to this motion. In such circumstances, I cannot make any order against Aylesworth LLP. In any event, it appears that this issue may now be moot. In a letter dated May 20, 2010, Mr. Munro advises that he has just received two more boxes of documents from Aylesworth LLP related to the Applicant’s October 21, 2000 motor vehicle accident and that copies of the medical documents contained therein have been provided to TTC.

June 2, 2010

Richard Feldman Arbitrator

Date