Neutral Citation: 2010 ONFSCDRS 91 FSCO A09-000167

BETWEEN:

MR. C. Applicant

and

COACHMAN INSURANCE COMPANY Insurer

MOTION FOR A THIRD PARTY PRODUCTION ORDER

Before: Joyce Miller Heard: July 15, 2010 by a motion held at the offices of the Financial Services Commission of Ontario

Appearances: Renee Vinett for Mr. C. Stanley Tessis and Kerri P. Knudsen for Coachman No one appearing for the Children’s Aid Society of Toronto

The Applicant, Mr. C., was injured in a motor vehicle accident on December 1, 2006. He was insured under a standard automobile owner’s policy issued by Coachman Insurance Company (“Coachman”). Every motor vehicle policy provides the benefits set out in the Schedule.¹ Mr. C. and Coachman disagree about his entitlement to statutory accident benefits. Mr. C. applied for arbitration at the Financial Services Commission of Ontario under section 279 of the Insurance Act, R.S.O. 1990, c.I.8, as amended.

THIS MOTION was made by Coachman for an Order that the Children’s Aid Society of Toronto (“CAS”) produce the unredacted complete copy of the CAS records in respect of Mr. C.’s children.

UPON HEARING submissions from counsel for Coachman and Mr. C., no one appearing for CAS and no evidence to indicate CAS was properly served pursuant to Rule 67 of the Dispute Resolution Practice Code (the “Code”):

IT IS ORDERED for the following reasons that this Motion for a third party production order is dismissed.

BACKGROUND

Mr. C. was injured in a car accident on December 1, 2006. He continues to receive an income replacement benefit as a result of the accident.

On July 20, 2009 Mr. C. was hospitalized when he expressed suicidal ideation because he could not live with his pain anymore. His suicidal ideation included driving his van with his wife and three children into a lake.

As a result of his suicidal ideation, which involved his children, CAS was called in to investigate the family. They interviewed Mr. C. and his wife as well as members of the community who had contact with the children, such as school teachers and librarians.

It appears from the evidence that the only action that CAS took was to provide housekeeping assistance because Mrs. C., who worked a night shift, was unable to keep up with the housework. CAS involvement concluded at the end of November 2009.

At the hearing on the preliminary issue of whether Mr. C. has suffered a catastrophic injury, Coachman advised that they had summoned CAS to appear on July 13, 2010 for a motion on a “third party” production order.

Counsel for Mr. C., for whom this was her first arbitration hearing, did not object to the motion being held, but objected to the date that Coachman had chosen on the grounds that Dr. Rosenblatt, who had assessed Mr. C. for a catastrophic impairment, had been scheduled to appear on that day.

I mistakenly assumed, since Coachman was represented by two experienced counsel who should be aware of the Schedule and the Commission’s regulations, that Coachman had adhered to Rule 67 of the Code when the motion for a third party production order was requested.

Accordingly, to accommodate the fact that Dr. Rosenblatt had been scheduled to appear on July 13, I scheduled what I thought was a valid motion for a third party production order to the end of that week.

Prior to the motion, Coachman advised that it would be proceeding with the motion, but will not be calling a representative of CAS to the hearing of the motion.

At the hearing of the motion, Coachman, instead of providing a basis for its third party production order pursuant to Rule 67, provided the following submissions without tendering any evidence in respect of the criteria required by Rule 67.

Coachman’s Submissions

Coachman submits that it was looking for the unredacted complete copy of the CAS records. Coachman submits that in cross examination Dr. Rosenblatt, who was not aware of CAS’ involvement at the time he did his assessment, stated that this was a serious issue. Coachman submits that Dr. Rosenblatt specifically said he would need more details about the CAS involvement. He had stated that Mr. C.’s rating would go up depending on the details of the CAS records.

In addition, Coachman submits, under direct examination, Mr. C., his case manager, Rosemary Whyte and his occupational therapist, Paula Hilborn were all asked about the CAS involvement. The questions included: why they were involved; how long they were involved; what CAS did during their involvement; and the status of whether CAS was still involved and whether that had ended.

Coachman submitted that the CAS records will indicate why CAS felt the need to be involved and why they stopped being involved. It submits that both of these issues relate to function. This includes, the family dynamics, which goes to Mr. C.’s functionality, as well as to Mr. C.’s and his family’s well being.

In addition, Coachman submits that the records are also needed for the determination on attendant care at the further hearing.² Coachman submits that the request is relevant given Mr. C.’s claim for 24 hour attendant care.

Mr. C.’s Submissions

Mr. C. submits that he does not have a copy of the CAS file. He does not know what is contained in that file. The existence of the file has been known to Coachman well before the commencement of the hearing. Coachman never once requested a copy of the file. The first request for the file was the night before the hearing was to start.

Mr. C. submits the late request for the CAS file is prejudicial to him in that he is disadvantaged in knowing what case he has to meet. He is also prejudiced by the fact that the majority of his case has gone in and to respond to whatever is in the CAS file would mean his having to recall his witnesses to respond to whatever is in the file. He submits that the excessive costs to him would be untenable.

Mr. C. referred to Rule 39.1 of the Code wherein it states that all documents, reports and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing.

Further, Rule 39.2 of the Code states that in “extraordinary circumstances,” a party may seek an arbitrator’s permission to serve a document, report or assessment on the other party for use at the hearing less than 30 days before the first day of hearing.

Mr. C. submits that Coachman, as the party requesting the late admission of a document, has the burden of proof to show “extraordinary circumstances.” Mr. C. submits that Coachman has not provided any extraordinary circumstances for the late admission of the CAS file.

In support of his position, Mr. C. relied on a number of arbitration cases³ which included the case of Chung and Unifund Assurance Company⁴ wherein the arbitrator held:

According to its plain meaning, Rule 39 prohibits me from admitting, at a hearing, documents that have not been served on an opposing party at least 30 days before the first day of a hearing, unless extraordinary circumstances warrant an exception. Commission decisions have been clear in establishing that, although arbitrators have a range of remedies to address late service, the late service of documents must first be justified by exceptional circumstances.⁵ The question then is whether extraordinary circumstances exist in this case. I do not have to consider the relevance, materiality or admissibility of evidence before first considering whether extraordinary circumstances warrant admitting the evidence.

Mr. C. submits that whether or not these records are relevant is not a proper consideration until Coachman has made out a case of “extraordinary circumstances.” Mr. C. submits that Coachman has not met its burden of proof. Coachman has not given any submission on this issue at all.

Coachman’s Reply Submissions

Coachman submits that it was not aware that Mr. C. would be providing his submissions on the issue of late production. For this reason it was now tendering a letter into evidence from Mr. C.’s counsel, dated June 8, 2010, which indicates that Mr. C. was foregoing disputing late productions.

This letter states as follows:

Thank you for the joint document brief.

At this time we reserve our right to submit further documentation prior to the upcoming arbitration should any future relevant information come to our attention. Of course we will grant your office the same courtesy....

Coachman submits that the letter was an agreement that the parties would not stick to the 30 day rule. As an example, Coachman cited the fact that not all of the records in Ms. Hilborn’s file were produced before 30 days. However, when it became aware of documents not submitted these documents were accepted by Coachman past the 30 day requirement.

Coachman submits that the CAS file was in Mr. C.’s power and control to request. His counsel considered it to be relevant in that she asked him and his witnesses questions on the file.

Coachman submits that Mr. C.’s counsel was aware that it had issued a summons to CAS on July 6, 2010 and that on July 8, 2010, his counsel knew that CAS was prepared to attend the motion on July 13, 2010. That being the earliest, pursuant to the notice in the summons, that CAS could attend.

Coachman submits that it was told that Mr. C. did not know what was in the CAS file. Coachman, however, submits that presumably Mr. and Mrs. C. know what they told CAS. They should also know what the decision was and what recommendations they made. They should know what was in the file.

Reasons for Allowing Mr. C. a Further Response

When Coachman finished its Reply submissions, for the following reasons I accorded Mr. C. an opportunity to respond to the June 8, 2010 letter filed in reply.

Third Party production orders are usually made before the hearing. The pre-hearing arbitrator usually deals with this issue. Although the pre-hearing arbitrator may order a third party to produce their documents, it is up to the hearing arbitrator to decide whether the documents can be tendered into evidence. It is a two step process.

I found it incredulous, if not disingenuous for Coachman not to expect that a first time production request made on the eve before the hearing was to commence would not be defended as a late production request, especially in this case when none of the criteria pursuant to Rule 67 of the Code was adhered to by Coachman.

Since Coachman had made no submissions or provided any evidence that it adhered to the requirements of Rule 67 for a third party production order, in my view, a late production defence is a reasonable and valid defence in the circumstances and the facts of this case.

Accordingly, to be fair, as part of my jurisdiction to control the process, I accorded Mr. C. an opportunity to respond to the letter of June 8, 2010 tendered in Reply that dealt with the issue of late production.

Mr. C.’s Response to Coachman’s Reply Submission

Mr. C. submits that the June 8, 2010 letter is in reference to updating documents that had already been requested but may not have been completely provided. The letter specifically stated that the filing would be done “prior to the upcoming arbitration.”

The issue of the CAS file is very different. Coachman had never asked for these records to be produced. The first time Coachman advised that it wanted the CAS file produced was the night before the hearing had begun.

Mr. C. submits that Coachman was well aware of the CAS file for at least 7 months before the hearing. Mr. C. objects to the unfairness of Coachman never requesting the records but waiting until the eve of the arbitration to advise his counsel that it was summoning CAS to the hearing.

Mr. C. submits that the foundation of the letter of June 8, 2010 was not there for him to be “ambushed” on the eve of the hearing with issues that had not been raised before in respect of the production of the CAS file. The letter was there to deal with updating productions that had been previously requested within the proper time limits but were coming in late. It was not there to unilaterally overrule the regulations of the Dispute Resolution Practice Code.

In regards to Coachman’s submission that since Mr. C. and his wife were interviewed by CAS they would somehow know what was supposed to have been written in the file, Mr. C. submits he obviously does not know what is CAS’ opinion. In respect of the CAS file all he knows is that there was a discontinuation of supervision.

Mr. C. submits that the referral to CAS was made on behalf of the children. This was not a file created for his benefit. There is no indication that an evaluation was made on his function by CAS.

The privacy of the children and Mrs. C. who are not part of his dispute with Coachman must be taken into consideration. Mr. C. submits that the impact of his accident on him has been devastating. His children and his wife had to live with the impact of his injuries.

In summary, Mr. C. submits that the probative value of the records versus the prejudicial impact of the late notice along with the unnecessary additional costs and time spent to recall previous witnesses must be taken into consideration.

THE LAW

Rule 67.4 of the Code provides:

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 in FORM F.

Rule 67.3 of the Code provides:

A party making such a request must, in writing:

(a) describe the order being sought, the grounds for the order, and provide any documents to be relied on;

(b) set out the time, date and manner in which the party seeks to have the motion heard; and

(c) serve this material on the other parties and file it.

Rule 67.5 of the Code provides:

Within 10 days of being served, the responding party and third party, if any, must:

(a) serve a written response and documents to be relied on; and

(b) file a copy of the written response and documents.

Rule 67.6 of the Code 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.

Rule 67.7 of the Code provides:

Before making an order for the production of documents against a third party, the adjudicator shall be satisfied that:

(a) the parties have made reasonable efforts to obtain the documents sought;

(b) the document sought is in the possession, control or power of the third party;

(c) the third party has had a reasonable opportunity to respond;

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

ANALYSIS AND FINDINGS

At the motion hearing, I exercised my discretion not to allow the CAS file to be tendered into evidence at the Catastrophic Impairment determination hearing. The following are my full reasons for this decision.

I find that Coachman’s request for a motion for a third party production order was frivolous, vexatious and unnecessary. In short, I find it to be an abuse of the arbitration process.

My jurisdiction to exercise my discretion for a third party production order comes from Rule 67 of the Code. Coachman did not provide one shred of evidence that it had adhered to the requirements of Rule 67 of the Code for a third party production order. It did not provide any evidence that it had complied with the requirements of service under Rule 67.3 of the Code. It did not even tender into evidence a copy of the alleged summons to CAS on July 6, 2010. Nor did it provide an explanation why it did not call CAS to appear at the motion hearing and respond to Coachman's request for the third party production order as required by Rule 67 of the Code.

While Rule 67.6 of the Code allows an adjudicator to determine the third party production request “on the basis of the documents and written submissions filed,” Coachman did not provide any such documentation.

Administrative law is based on two fundamental principles: the duty to be fair and the duty to be heard. These principles are reflected in the criteria set out in Rule 67 of the Code. Coachman ignored both of these principles.

Rule 67.7(c) of the Code requires that before making an order for the production of documents against a third party, the adjudicator shall be satisfied that the third party has had a reasonable opportunity to respond.

It is not only fair that a third party be given notice that a third party production order hearing is being held, the third party must also be given an opportunity to be heard, and to respond to this request.

Nevertheless, pursuant to Rule 67 of the Code Coachman failed to provide any evidence that CAS was aware that this motion hearing was going on July 15, 2010 without its participation. Nor did Coachman provide any evidence that it had given CAS an opportunity to respond to its third party production request.

More than having failed in complying with Rule 67 of the Code, Coachman provided no valid basis or “extraordinary circumstances” pursuant to Rule 39.2 of the Code for requesting that the CAS file be tendered into evidence at such a late date.

The three reasons given for requesting the file were: one, under cross-examination Dr. Rosenblatt stated that Mr. C.’s ratings would go up if he knew the details of the CAS file; two, three witnesses had been asked in chief about the CAS’ involvement; and three, it was relevant to the attendant care issue at a further hearing.

I find all of these reasons to be spurious and made up after the fact. Coachman did not present one shred of evidence that at the time of issuing the alleged summons to CAS on July 6, 2010 it had valid, cogent and probative reasons for requesting this third party production order. Instead, Coachman relied on events that occurred after its alleged summons to CAS and on an issue, attendant care, not relevant to the Catastrophic Impairment determination issue.

The first reason given I thought was bizarre. Apparently, in cross examination, Dr. Rosenblatt was presented with a hypothetical question on how he would respond to the contents in the CAS file. His response according to Coachman’s submissions is that he would accord a higher rating to Mr. C. in his Catastrophic Impairment assessment if he knew the details of the CAS file.

Aside from the fact that Dr. Rosenblatt’s cross-examination occurred after the alleged summons of the CAS file, the question one must ask is why if Coachman was opposing the Catastrophic Impairment issue would it be seeking evidence to raise Mr. C.’s rating.

The second reason given also was not a reality at the time of the alleged summons.

In respect of the third reason, at the time of the alleged summons on July 6, 2010, the hearing had been bifurcated and the only issue in dispute was the Catastrophic Impairment determination issue. Accordingly, I find that the reason Coachman required the CAS file for the attendant care issue was completely irrelevant to the Catastrophic Impairment determination issue at the time it allegedly summoned CAS.

The fact that Coachman did not present any timely, relevant, cogent or probative basis for its third party production order leads me to conclude that the request was a blatant, last minute “fishing expedition” for more evidence.

In summary, I find that Coachman’s motion for a third party production order to be frivolous, vexatious and unnecessary. It is a clear abuse of the arbitration process. It created a delay in the hearing. It caused Mr. C.’s counsel to spend extra time preparing for this motion. It also created unnecessary additional expenses for Mr. C. in this hearing that cannot be compensated by the Commission’s legal fee rates.

Accordingly, for these reasons, I find that Coachman is not entitled to the production of the CAS file in this hearing. Accordingly, this Motion for a third party production order is dismissed.

July 23, 2010

Joyce Miller Arbitrator

Date

ORDER

This motion for a third party Production Order is dismissed.