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

Neutral Citation: 2011 ONFSCDRS 73

FSCO A10-000013

BETWEEN:

LAURIE BARTLETT

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Robert Bujold

Heard: By telephone conference call on January 20, 2011

Written submissions received on December 1, 2010 and January 19, 2011

Appearances: Douglas O'Toole for Ms. Bartlett

Gordon Lee for RBC General Insurance Company

Introduction:

The Applicant, Laurie Bartlett, was injured in a motor vehicle accident on April 14, 2007. She applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ RBC terminated weekly income replacement benefits effective December 28, 2008. The parties were unable to resolve their disputes through mediation, and Ms. Bartlett applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was held on June 2, 2010 before Arbitrator Feldman. Following the pre-hearing, RBC General Insurance Company (“RBC”) sent several letters to Ms. Bartlett seeking production of various documents and answers to various requests for information. Ms. Bartlett provided some of the requested documents and answered certain questions, but refused to provide certain other documents and information. As a result, RBC brought a motion for an order that Ms. Bartlett comply with all of its requests. The motion was heard by telephone conference call at 10:00 a.m. on January 20, 2011.

By letter dated February 7, 2011, I set out my decisions on the disputed requests as follows:

Ms. Bartlett is not required to provide a copy of any health care or collateral coverage plans available to her directly or through a spousal plan nor is she required to provide a copy of any files in respect of such plans.
Ms. Bartlett shall confirm whether she has applied to CPP or any other disability plan. If so, she shall produce a copy of any such applications and any documents filed in support. She shall also produce a copy of any response to such applications and confirm the amounts and time periods for which any benefits were received. She shall also produce a copy of any medical documents contained in the CPP or disability plan files from one year prior to the accident to date.
Ms. Bartlett shall produce a copy of any income tax returns filed with Canada Revenue Agency from one year prior to the accident to date.
Ms. Bartlett shall confirm whether she has applied for social assistance on the basis of disability through the Ontario Disability Support Plan (“ODSP”). If so, she shall produce a copy of her application and any documents filed in support. She shall also produce a copy of any response to her application, confirm the amounts and time periods for which any benefits were received, and produce a copy of any assignment or other agreement regarding repayment of benefits. She shall also produce a copy of any medical documents contained in the ODSP file from one year prior to the accident to date.
Ms. Bartlett shall confirm whether she has attended any school courses or education sessions since the date of loss. If so, she shall provide the names of the institutions through which the courses or sessions were taken; identify the courses or sessions; provide the dates that she was enrolled in the courses or sessions; and, confirm the status of her attendance in the courses or sessions, including interim or final grades and any accreditation received.
Ms. Bartlett shall provide a summary of her employment history prior to her employment with Marek Hospitality Cafeteria. The summary shall include the names of past employers; dates of employment; positions held; a brief account of job tasks and hours worked; and, remuneration.
Ms. Bartlett shall produce a copy of the employment file of Marek Hospitality Cafeteria. Any banking information contained in the file may be redacted.
The expenses of the motion are left to the discretion of the hearing arbitrator.

I also directed that RBC pay for all reasonable costs associated with the production of documents pursuant to my decisions.

I issued my decisions without reasons in an effort to minimize the impact on the hearing which was then scheduled for March 28, 29, 30 and 31, 2011.² Although I am not required to provide reasons in respect of an interim decision or order,³ I advised the parties that reasons would follow in due course. The following are my reasons.

ANALYSIS:

The motion focused on two issues: 1) the test for production generally at FSCO; and 2) RBC’s specific production requests. I will deal with each in turn.

1) The Test for Production Generally at FSCO

Ms. Bartlett’s Position

Ms. Bartlett disputed that “semblance of relevance” is the appropriate test for the production of documents or the giving of information in FSCO proceedings. She maintained that the correct test is “relevance.”

Ms. Bartlett submitted that the arbitrator in Ramakrishnan and Primmum Insurance Co.⁴ erred when he concluded that section 22 of the Insurance Act⁵ gives arbitrators the same powers as a Justice of the Ontario Superior Court to order documentary production or factual disclosure as part of the pre-hearing process.

Section 22 provides as follows:

For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. [emphasis added]

According to Ms. Bartlett, the arbitrator failed to appreciate the significance of the words “for the trial.” She argued that section 22 should not be interpreted as vesting arbitrators with the powers of a Justice of the Superior Court for any stage other than the trial of an action, such as the discovery stage. She further argued that this same arbitrator was therefore wrong when, in cases such as Safari and Old Republic Insurance Company⁶ and Devries and Western Assurance Company,⁷ he referred to civil case law as authority for “semblance of relevance” as the test for production at FSCO.

Ms. Bartlett submitted that an arbitrator’s powers to order the production of documents and the giving of information are confined to Rule 32.3 of the Dispute Resolution Practice Code (the “Code”).⁸ Rule 32.3 specifically provides that “… an arbitrator may at any time order production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration…”. [emphasis added] Ms. Bartlett noted that the Director’s Delegate considered these words in Allstate Insurance Company of Canada and Al-Obaidi.⁹ In that case, “relevance and reasonableness” were recognized as the “guiding principles” in the exercise of discretion to order production of documents or the giving of information. The Director’s Delegate also remarked that “Relevance is framed by reference to the issue being arbitrated.” Ms. Bartlett further noted that the Director’s Delegate made no reference to “semblance of relevance” as the test for production.

Finally, Ms. Bartlett submitted that, even if it were correct that arbitrators have the same powers as Superior Court Justices to make pre-hearing production orders, Rule 30.02(1) of the Rules of Civil Procedure (the “Rules”) was recently amended¹⁰ to change the disclosure requirement from “every document relating to any matter in issue…” to “every document relevant to any matter in issue…” [emphasis added] According to Ms. Bartlett, the result of this amendment is that “semblance of relevance” is no longer the test for disclosure in the Courts. Therefore, whether one is looking to Rule 32.3 of the Code or the powers of a Superior Court Justice, the result is the same today: the test for the production of documents and the giving of information is relevance, not semblance of relevance.

Analysis

Overview

I agree that the arbitrator in Ramakrishnan appears to interpret section 22 of the Insurance Act as vesting an arbitrator with the powers of a superior court judge over the pre-trial process. While I am not persuaded that this broad interpretation of the phrase “trial of civil actions” to include the pre-trial process is wrong, I do not find it necessary to decide this point. Whether or not an arbitrator possesses the plenary powers of a Superior Court Justice over the pre-trial process, Rule 32.3 of the Code provides specific direction for making production orders at FSCO. Interpreted in the specific context of FSCO arbitrations and the Code as a whole, I am not persuaded that the use of the word “relevant” in Rule 32.3 is inconsistent with semblance of relevance as the appropriate test for production at FSCO. Nor am I persuaded that FSCO case law (in particular, Al-Obaidi) suggests a higher standard.

As for the recent amendment to Rule 30.02(1) of the Rules, FSCO proceedings do not operate under the Rules. They are governed by the Code, and the Rules have no bearing on any matter for which the Code has specifically provided. At best, where a term such as “relevant” is not defined in the Code, the Rules and judicial jurisprudence may offer some guidance. Even then, it is important to remember that the Rules have been drafted in the context of civil proceedings with their own particular procedural rights and responsibilities. The Rules, including the recent amendments, need to be understood in that light and in the context of the Rules as a whole. For the reasons that follow, I am not persuaded that, even if the recent changes to the Rules mean that the test for production in the Courts has changed from semblance of relevance to some higher standard, the test for production at FSCO should follow suit.

Al-Obaidi and Rule 32.3 of the Code

Ms. Bartlett relied heavily on the Director’s Delegate’s decision in Al-Obaidi. In that case, Ms. Al-Obaidi had advanced a claim for a special award and sought production of the insurer’s log notes. The hearing arbitrator found that “as an insurance consumer [Ms. Al-Obaidi was] entitled to view her company’s internal decision making process in respect of her disputed claims as a matter of course unless privileged.” On appeal, the Director’s Delegate disagreed with this statement which she saw as essentially “conferring on insured persons a generalized right of access to internal company records in disputes…” The Director’s Delegate also referenced approvingly the earlier decision of Leitgeb and Allstate Insurance Company of Canada¹¹ that “a bald assertion of a special award does not, in and of itself, entitle an insured to access the company’s complete file.” In short, the Director’s Delegate found that “whether all or part of the company’s log notes and other internal documentation is relevant in the context of that added dimension [a special award] must be evaluated on a case-by-case basis.”

The Director’s Delegate found that, while there was a basis for production of the insurer’s log notes, the scope of the arbitrator’s order was too broad. She concluded that the appropriate order in that case should be the production of log notes for a limited period of time, but in their entirety for that period. The Director’s Delegate arrived at her decision after noting that arbitrators have considerable options as to the form that disclosure can take, including selective orders that limit log entries to the disputed benefits and, subject to the ultimate discretion of an arbitrator, providing the disclosing party’s lawyer the opportunity to determine which entries meet the criterion of relevance.

Ms. Bartlett contends that Al-Obaidi supports the proposition that “semblance of relevance” is not the standard of relevance required for production. I disagree.

As noted, Rule 32.3 provides that an arbitrator may order the production of documents and the giving of information considered “relevant” to the determination of the issues in dispute. There was no dispute between the parties that, at the time of the Al-Obaidi decision, the common law test for production was “semblance of relevance.”¹² While the Director’s Delegate in Al-Obaidi did not expressly reference that phrase, she recognized that relevance is inherently a term to be understood in terms of degrees and not absolutes:

Relevance is a necessary, but not necessarily sufficient, requirement. In exercising the discretion to make an order, relevance and reasonableness are the guiding principles. The degree of relevance is weighed against other factors, such as the sensitivity of the information, the practicalities of compliance and the timing of the request. [emphasis added]

The above quote also answers Ms. Bartlett’s concern that using semblance of relevance as the test for production will result in intrusive, overly-broad and costly production requirements. As noted, the degree of relevance must be weighed against the sensitivity of the information requested, the practicalities of compliance (which, in my view, covers the time, effort and costs of compliance) and the timing of the request. To this list, I would also add the availability of the requested information through other sources. Semblance of relevance therefore is not necessarily enough to warrant production. Where the degree of relevance is slight or somewhat speculative, these other factors (which go to the reasonableness of the request in the circumstances) are likely to hold greater sway in the exercise of the arbitrator’s discretion.

In Al-Obaidi, the Director’s Delegate found that the degree of relevance did not warrant the broad disclosure order made by the pre-hearing arbitrator. However, the Director’s Delegate did find sufficient relevance to warrant a more limited disclosure order. I am not persuaded therefore that Al-Obaidi stands for the proposition that some standard of relevance higher than “semblance of relevance” must be established before a production order can even be considered through a weighing of other considerations. That would be reading too much into the decision. As noted, the common law at the time recognized semblance of relevance as sufficient for disclosure. If the Director’s Delegate were trying to distinguish proceedings at FSCO as requiring an enhanced standard of relevance, I believe she would have done so explicitly.

The evolution of FSCO’s broad stroke approach to production exchange

Since Al-Obaidi, several cases have recognized an evolution toward a more broad stroke approach to production exchange, at least with respect to production of an insurer’s accident benefits file.¹³ As I wrote in Ghaedsharagy and Kingsway General Insurance Company,¹⁴ “the decision in Campeau and Liberty Mutual Insurance Company¹⁵ provides an in-depth review of this evolution and probably best marks when the evolving principles became generally accepted practice.”

Like Al-Obaidi, Campeau dealt primarily with the production of an insurer’s accident benefits file. In addition to considerations specific to adjuster’s notes, Campeau identified general policy considerations that support a more broad stroke approach to production exchange. These policy considerations included the fact that FSCO has a streamlined procedure that is designed to be a speedy and cost effective alternative to the courts. In that regard, Arbitrator Blackman noted that affidavits of documents and examinations for discovery are not available at FSCO, and he questioned the advantage of introducing a multi-stepped pre-hearing process or variations on affidavits of documents to determine what is “truly relevant” prior to production.

Campeau also recognized that relevance, especially of an important class of documents, should not be determined by one party.

Finally, Campeau noted that a broad stroke approach adhered to the “spirit and intent” of the Code, pointing to the general guideline in Practice Note 4 for the production of clinical notes and records from one year pre-accident, even though many of the notes in those records may be of a highly personal nature and entirely irrelevant to the issues in dispute.

For these reasons and others, Campeau advocated for a broad stroke approach to the production of an insurer’s accident benefits file. Campeau concluded that, in the absence of privilege, “clear irrelevance” or some countervailing factor set out in Al-Obaidi, production of an insurer’s accident benefits file up to the date of the application for mediation is prima facie appropriate.

The result of Campeau is that, as a matter of practice, Al-Obaidi and Leitgeb have little effect today on the production of an insurer’s file at FSCO. The approach set out in Al-Obaidi of determining the scope and form of disclosure on a case-by-case basis, depending on the nature of the special award claim, and invoking adjudication when disputes arise, has been replaced by the now well-established practice of producing an insurer’s file up to the date of the application for mediation, even where a claim for a special award has not been made. On occasion, where circumstances outside the norm warrant, an arbitrator may still be called upon to decide whether the date of the application for mediation is the appropriate line to use for the establishment of litigation privilege. However, such cases are rare. The production of an insurer’s file “as a matter of course unless privileged,” with the date of the application for mediation as a “bright line” for establishing litigation privilege, has practically eliminated disputes in this area.

Apart from Campeau and its direct impact on the production of an insurer’s file, FSCO has seen a broad stroke approach to production generally. While production disputes still arise where the circumstances of the case are unusual or the issue novel, clear expectations and practices have been established in what may be referred to as “garden variety” cases and, for the same good policy reasons identified in Campeau (speed, efficiency, fairness, costs), have tended toward a more liberal or broad stroke approach. This has brought a degree of both certainty and efficiency to production exchange.

For example, employment files are routinely produced in claims for entitlement to income replacement benefits without the file contents being vetted for relevance prior to production. Likewise, collateral benefits files are routinely produced where entitlement to medical and rehabilitation benefits is in dispute, even though quantum of benefits may not have been identified as a disputed item. Particulars of collateral benefits may nevertheless promote settlement. CPP and other disability files are also commonly produced, even though the disability tests under income continuation benefit plans are likely to differ in some respects from the disability tests required for entitlement to benefits under the Schedule. There are other examples where broad production is the norm.

While it is recognized that many of the documents contained within such files may ultimately prove to be of little, if any, probative value, it is also recognized that it would be expensive and impractical to engage a process to determine the relevance of specific documents within such files prior to production. As noted in Campeau, letting the producing party be the arbiter of what is or is not relevant within files that have a clear and rational connection to the issues in dispute is not a satisfactory solution. Given these realities, but further recognizing that it would be unfair to deny an insurer access to entire files that may very well contain relevant information, such files are generally produced in their entirety, reserving questions about actual relevance and the admissibility of specific documents to the hearing arbitrator.

Even where objection is taken to production of a file in its entirety, the parties, with or without the assistance of the pre-hearing arbitrator, are generally able to identify the specific types or classes of documents within the file that may contain information relevant to the dispute and reach agreement that those types of documents will be produced should they be contained within the file. A common example of this sort of agreement is the production of records within an employment file that establish days and hours worked where the insured person’s availability to be the primary caregiver pre-accident is in dispute.

A major difficulty with Ms. Bartlett’s call for a more stringent interpretation of relevance in Rule 32.3 is that it would seek to undo the expectations and practices that have developed at FSCO over the years. Rather than a broad stroke approach to production where a rational relationship exists between the issue in dispute and the file or class of documents to be produced, Ms. Bartlett would require, on a case-by-case basis, that the requesting party establish actual relevance, followed by a weighing of the factors referenced in Al-Obaidi, and ultimately leading to a determination of the appropriate scope of disclosure. Alternatively, Ms. Bartlett would have the party receiving the request vet the file first to identify relevant from non-relevant documents. In either case, disputes that arise would be determined by an arbitrator.

Ms. Bartlett argued that this more restrictive approach to document exchange would result in greater fairness and cost savings by limiting production exchange to fewer, more clearly relevant documents. In my view, however, the result would be the opposite. Rather than producing the desired result, it would simply engender greater involvement of counsel and arbitrators in a cumbersome and multi-stepped process to determine whether the necessary standard of relevance for production had been met in any particular case. It is a move in the wrong direction to introduce disputes and the involvement of arbitrators in areas of production exchange where law and practice have led to predictability and disputes are currently rare. By extension, it could also represent a move toward less opportunity to access documents where the only way to determine the degree of actual relevance is through production and inspection. These developments would represent a move away from, not toward, the most just, quickest and least expensive resolution of disputes at FSCO.

Clearly, there will still be times when, in accordance Al-Obaidi, an arbitrator will be called upon to weigh the relevance and importance of a production request against the sensitivity of the information requested; the time, effort and costs of compliance; the availability of the requested information through other sources; and the timing of the request. However, if FSCO is to remain a more efficient and less costly alternative to the courts, production exchange needs to generally favour a more broad stroke approach over the more time consuming and expensive case-by-case approach taken in Al-Obaidi.

As noted in Levin and Security National Insurance Co./Monnex Insurance Mgmt. Inc.:¹⁶

Arbitration should not be a “make work” project. The overall result of clearly defined but sensibly flexible guidelines has been that pre-hearing discussions have been more productive and conducive in moving the parties towards a voluntary or imposed resolution of the substantive issues in dispute, rather than routinely dealing with the same types of time consuming procedural motions in case after case. Dispute resolution should have its eye on resolving disputes, not creating them.

As for the concern raised by Ms. Bartlett that a broad stroke approach to production exchange has resulted in undue fishing expeditions or exorbitant costs related to securing documents, I have no evidence that this has been the case. Further, I note that “as a general rule, the party asking for the document is responsible for paying the cost of getting it.”¹⁷ As well, it always remains open to a party to argue that the costs of securing certain documents or files (perhaps due to the volume of documents requested or difficulties with retrieving old records or the availability of similar information from other sources) should mitigate against production, especially when weighed against their likely probative value. A case-by-case assessment still has its place. It simply should not be promoted as the rule.

For the above reasons, I am not persuaded that FSCO case law or practice supports a departure from “semblance of relevance” as the threshold test for production generally at FSCO. Subject to the timing of the production request, and special considerations going to the time, effort and costs of compliance or the availability of the information through other sources, it should generally be sufficient grounds for production that there exists a reasonable possibility that a file or class of documents may contain information relevant to the determination of the issues in dispute.

Recent changes to the Rules of Civil Procedure

Ms. Bartlett contended that, apart from Al-Obaidi and the express use of the word “relevant” in Rule 32.3 of the Code, the recent change to Rule 30.02(1) of the Rules affecting production in the Superior Court lends further support for the proposition that the test for production at FSCO should be something more than semblance of relevance.

While I accept that the Rules may offer guidance in situations where the Code is silent or ambiguous, I am not persuaded that that is the case here. Nevertheless, recognizing that “relevant” is not a defined term in the Code, and given that Ms. Bartlett made much of the recent change to Rule 30.02(1), I have examined the amendment for any guidance it may provide on production exchange at FSCO.

As noted earlier, in looking to the Rules for guidance, it is important to remember that the Rules operate in a different context from arbitrations at FSCO, where certain pre-trial discovery processes, such as affidavits of documents and oral examinations for discovery, are not available.

Another point of context is particularly important in this instance. The amendment to Rule 30.02(1) was only one of several amendments that came into force on January 1, 2010. In fact, the amendments that came into force at that time represent the most extensive amendments to the Rules since they were first adopted in 1985. The amendments are the result of the Civil Rules Committee’s (the “CRC”) consideration of several recommendations made by the Civil Justice Reform Project (the “CJRP”), led by the Honourable Coulter Osborne, that submitted its summary report to the Attorney General in November 2007. The CJRP had been given the task of proposing reforms of the civil justice system to make it more accessible and affordable for Ontarians.¹⁸

Notable amongst the amendments was the introduction of a “discovery plan” (whereby the parties set out, in writing, the intended scope of documentary discovery as well as the timing and length of oral examinations)¹⁹ and, except with the consent of the parties or with leave of the court, the imposition of time limits on oral examinations for discovery.²⁰

More important to this motion, the amendments also introduced the concept of “proportionality,” both as a matter of general interpretation and as a matter governing the discovery process in particular. Rule 1.04(1.1) provides that “In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” Rule 29.2.03 (1) and (2), dealing specifically with discovery disputes, provides the following further direction:

CONSIDERATIONS

General

(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

The Courts deal with a wide variety of disputes, ranging from relatively simple matters to highly complex, multiple party litigation. If nothing else, the amendments to the Rules and, in particular, the introduction of proportionality principles, recognized that one size does not fit all. There is clearly an attempt with these amendments to tighten the scope of disclosure in the Courts, particularly in respect of those cases where the “importance and complexity of the issues, and the amount involved” simply do not warrant and can no longer afford the universally broad and liberal approach to documentary discovery that had been permitted in the past.

While a tightening of the relevancy requirement may be seen as one means by which the Courts hope to move toward more circumscribed discovery in the appropriate case,²¹ the real impact of the amendment to Rule 30.02(1) cannot be understood independent of the proportionality principles that were also introduced through the other amendments to the Rules. In fact, in my view, the proportionality principles will likely prove more significant in trying to arrive at the appropriate scope of discovery in any particular case than the application of some enhanced meaning of relevance. As noted in Law of Civil Procedure in Ontario,²² it is not clear that the change from “related” to “relevant” will prove to be all that significant:

Whether there will be a meaningful difference in application between the “relating to” standard of the former rule and the “relevant to” standard of the amended rule remains to be seen, but it would seem that the amendment was introduced to make the difference of reducing the burden of the disclosure obligation by eliminating the requirement of searching for all documents that might remotely relate to the issues in the action but were not relevant. The amended wording is complementary to the proportionality principle, discussed below, as a factor in setting the contemporary standard of disclosure in the discovery process. [emphasis added]

While both FSCO and the Courts interpret their rules to produce the most fair, quick and cost effective resolution of disputes, each does so with a view to the breadth and complexity of the disputes they administer and the pre-hearing and hearing processes available in each system. Each seeks to take advantage of its own strengths and respond to its own challenges.

Unlike proceedings before the Courts, arbitration at FSCO is highly specialized. FSCO deals only with disputes arising from claims for accident benefits. Further, it is intended to provide a speedy and cost effective alternative to the Courts. This is achieved in part through a pre-hearing process that does not include affidavits of documents and examinations for discovery. It is in this specialized context that the Code was drafted and FSCO case law and practice regarding production exchange has evolved. While disputes over production may still arise in limited circumstances, clear expectations have been established around most production requests and generally favour a broad stroke approach. This may result in fairly broad production of certain classes of document in relation to certain issues, but it has also brought a measure of certainty to production exchange, minimized disputes and provided a response to fairness concerns arising from the lack of more enhanced discovery at FSCO.

Not surprisingly, the proportionality considerations introduced into the Rules by the new Rule 29.2.03(1) differ somewhat from the considerations affecting production that have evolved in FSCO’s specialized context. Still, there are substantial similarities. Time, expense and the impact of the production request on the progress of the proceeding are factors to be considered in both forums. What is clear is that the Courts are moving toward a more contextual approach to production disputes. It is an approach that will take into account both the “relevance and reasonableness” of production requests; something which Al-Obaidi recognized as FSCO’s “guiding principles” more than 10 years ago.

Under the burden of long and expensive trials that are far too often disproportionate to the importance and complexity of the issues in dispute, the recent amendments to the Rules appear to be an example of the Court adopting some of the procedural efficiencies of administrative tribunals, like FSCO, rather than the Court setting a new standard that FSCO should follow, as Ms. Bartlett’s argument would suggest.

Conclusion

For all of the reasons noted, I would summarize the test or principles governing production generally at FSCO, as follows:

subject to both solicitor and client and litigation privilege, semblance of relevance is sufficient for the production of documents and the giving of information;
relevance is determined with reference to the issues in dispute;
a broad stroke approach to production has evolved in law and practice at FSCO and, for most disputes, is the rule. This approach has evolved, in part, as a foil to the limited discovery available at FSCO and, in part, to promote greater efficiency through fewer disputes in the area of production exchange;
the party requesting a document is generally responsible for the cost of obtaining it; and
in the special case, a party may not be required to produce documents or give information, although seemingly relevant, where the degree of relevance does not warrant production when weighed against the following considerations:
the sensitivity of the information requested;
the time, effort and costs of compliance;
the availability of the requested information through other sources; and
the timing of the request.

2) RBC’s Specific Production Requests

Since relevance is determined with reference to the issues in dispute, I begin with the issues identified in Arbitrator Feldman’s pre-hearing letter of June 2, 2010:

Pursuant to Part II of the Schedule, is Ms. Bartlett entitled to receive a weekly income replacement benefit of $210.00 per week from December 29, 2008 to the present and ongoing?
Is RBC liable to pay Ms. Bartlett’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Bartlett liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Bartlett entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

The claim for income replacement benefits (IRBs) is stated more broadly in the pre-hearing letter than it was in the Application for Arbitration. The pre-hearing letter states that IRBs are being claimed on an ongoing basis. In her Application dated January 4, 2010, Ms. Bartlett stated: “The Claimant disputes the stoppage of IRB. The Claimant has been unable to return to her pre-accident employment.” Even though the post-104 week mark had passed several months earlier, there is no reference to Ms. Bartlett being unable to return to any employment for which she may be reasonably suited based on education, training or experience. Adding to the confusion, even Ms. Bartlett’s motion materials state that “The only issue that is in dispute is whether Ms. Bartlett suffered a ‘… substantial inability to perform her pre-accident duties.’”²³

RBC’s Response, however, appears to have anticipated that Ms. Bartlett’s claim for IRBs would be ongoing post-104 weeks. The Response denies that Ms. Bartlett is entitled to IRBs on the basis that she fails to meet both the substantial inability and complete inability tests.

I note that the timing of RBC’s production requests is not an issue in this case. RBC wrote several letters over a period of a few months requesting documents and information from Ms. Bartlett. Some requests were complied with, in whole or in part, while others were not. After exhausting efforts to work directly with Ms. Bartlett, RBC brought this motion, seeking an order for the remaining documents and information. The request for a motion date was made well in advance of the original hearing date. While there was a delay in scheduling the motion, it was not due to RBC’s conduct. As such, the timing of RBC’s requests does not weigh into my considerations on this motion.

I turn now to the specific production requests as set out in RBC’s motion materials, keeping in mind the above-noted principles governing production exchange.

A copy of any health care plans and collateral coverage available to the applicant including a complete copy of the collateral file and policy from one year prior to the accident to date (as well as confirmation that the applicant does not have health coverage through a spousal plan)

Since the second production request (see #2 below) specifically requests copies of any disability plans, I have interpreted this first request to be exclusive of any short-term or long-term disability coverage that may be available to Ms. Bartlett or her spouse. I have treated this first request as covering only health care or medical benefits (if any) that may be available.

At the time of this motion, Ms. Bartlett’s arbitration proceeding did not include a claim for medical and rehabilitation benefits. As such, collateral coverage for such benefits that may be available to Ms. Bartlett or her spouse would appear to be irrelevant to the IRB issue.

RBC argued that a collateral carrier could have medical information in its file that may have a bearing on Ms. Bartlett’s claim for IRBs. However, I note that RBC has access to the clinical notes and records and/or reports of several medical professionals who have either treated or examined Ms. Bartlett. Some of these examinations were conducted at RBC’s request and are specific to her ability to work. Further, there is no reason to believe that medical assessments are contained in any collateral coverage files that may exist or that any medical records that do exist in such files would speak to her ability to work. In my view, this request is an example where even a generous approach to relevance cannot support production on the basis of fairness, efficiency or established practice. Any relevance is simply too tangential, particularly given the availability of directly relevant documentation from other, better sources.

As a result, Ms. Bartlett is not required to provide a copy of any health care or collateral coverage plans available to her directly or through a spousal plan nor is she required to provide a copy of any files in respect of such plans.

Copies of CPP disability file and any other disability applications (if applicable)

In correspondence dated May 26, 2010, Ms. Bartlett’s counsel advised that they were in the process of assisting Ms. Bartlett with a CPP Disability Application. However, Ms. Bartlett resists providing a copy of her application or information related to the application on the basis that it is irrelevant to the issues in dispute. For the same reason, Ms. Bartlett refuses to produce copies of any other disability applications that may exist.

Ms. Bartlett noted that RBC stopped paying her IRBs on the basis of several insurer’s examinations. Ms. Bartlett stated that she was cooperative in submitting to these examinations and has since provided RBC with the clinical notes and records of her treating physicians. She also noted that the test for CPP is different from the test for IRBs post-104 weeks. In these circumstances, Ms. Bartlett argued that RBC’s request for the CPP file (and any other disability applications) has nothing to do with adjusting her claim and is simply a fishing expedition to bolster its case at arbitration.

Finally, Ms. Bartlett disputed RBC’s argument that it should be entitled to her CPP file (and any other disability file) on the basis that payments received or available for loss of income under an income continuation benefit plan are deductible from any IRBs payable. Ms. Bartlett acknowledged her ongoing obligation to provide RBC with particulars of payments received or available under such plans, and she will advise RBC when disability payments are in fact received or available. Unless RBC has evidence that she is withholding information about payments currently being received or available, Ms. Bartlett claimed that disability files should not have to be produced simply on the basis that such payments are deductible under the Schedule.

I begin my analysis with the question of relevance.

Section 42(a) of the Canada Pension Plan, R.S.C. 1985, c. C-8 provides as follows:

(2) For the purposes of this Act,

(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death […]

The tests for CPP and post-104 IRBs, though different, also share substantial similarities; in particular, they both focus on a person’s inability to work at any occupation. The test of entitlement to long-term disability benefits under most income continuation plans is also generally some form of “any occupation” standard with regard being given to the applicant’s education, training and experience.

Unlike the Schedule, however, entitlement under income continuation benefit plans, including CPP, does not require that the disability be a result of a motor vehicle accident. An application for benefits under such plans may reference other non-MVA causes to establish the requisite test of disability.

I find that the existence of any application for loss of income under an income continuation benefit plan, including CPP, is prima facie relevant and should be disclosed. If Ms. Bartlett has applied for disability benefits based on a test that is substantially similar to the test for IRBs, then apart from the deductibility of such benefits, RBC should have the opportunity to review the application and the documents filed in support. Further, and apart from its relevance to the IRB claim, disclosure and production of documents related to an application for income continuation benefits may promote settlement.

There may be a certain element of “fishing” involved, but I find nothing especially objectionable by this characterization. I accept that a certain amount of fishing is permitted, if not unavoidable, as part of production exchange, especially where examinations for discovery and affidavits of documents are not available.

Nor do I find it objectionable that the request has little, if any, bearing on RBC’s adjustment of Ms. Bartlett’s claims. While RBC has an ongoing obligation to adjust Ms. Bartlett’s claims based on any new information, her disability files are producible because they are relevant to the determination of the issues in dispute, not because they are necessary for the adjustment of her claims. Any application for CPP or other income continuation benefit plan will either support or challenge Ms. Bartlett’s claim that she is unable to work as a result of the accident. In either case, RBC should be permitted the opportunity to see what these files contain.

Finally, I do not accept that, by making herself available for insurer’s examinations (as she is required to do under the Schedule) or by providing the clinical notes and records of her treating physicians (which are standard productions), Ms. Bartlett has somehow protected relevant documents from disclosure and production. Nor do I accept that the existence of medical information through these other sources outweighs the need for disclosure and production of pertinent records contained in any disability files that may exist.

Not surprisingly, files related to income continuation benefit plans, including CPP, are routinely produced where entitlement to IRBs is in dispute. They are usually produced in their entirety. At minimum, counsel generally agree that applications for such benefits and documents filed in support are producible, as are the collateral insurers’ responses. Further, any medical reports in the file from one year pre-accident to date (mirroring the broad stroke approach to medical records generally) are also produced.

For all of these reasons, Ms. Bartlett shall confirm whether she has applied to CPP or any other disability plan. If so, she shall produce a copy of any such applications and any documents filed in support. She shall also produce a copy of any response to such applications and confirm the amounts and time periods for which any benefits were received. She shall also produce a copy of any medical documents contained in the CPP or disability plan files from one year prior to the accident to date.

Income tax returns from one year prior to the accident to date

Ms. Bartlett resisted production of her income tax returns from one year pre-accident on the basis that they are irrelevant, as quantum is not in dispute. Ms. Bartlett maintained that the request could represent nothing more than a fishing expedition aimed at searching out information that may impugn her credibility. Ms. Bartlett notes that Rule 31.06(1) of the Rules allows a party to refuse to answer a question on oral discovery where “the question is directed solely to the credibility of witness.”

As I have already examined in some detail, arbitrations at FSCO are not governed by the Rules. Further, I find that RBC’s request is not solely aimed at impugning Ms. Bartlett’s credibility. As Arbitrator Alves notes in Monks and Dominion of Canada General Insurance Company,²⁴ earnings in the year prior to the accident “may be relevant in establishing a component of the test for suitable employment.” Specifically, it could speak to the “appropriate level of remuneration and the number of hours of work to be considered in determining suitable employment.”

Ms. Bartlett did not argue that Monks was wrongly decided, but questioned what other opportunities the insurer had in that case to consider the claimant’s work history and suitable employment. In this case, Ms. Bartlett noted that she underwent many insurer’s examinations where, in most cases, the assessor took her pre-accident functional and vocational history.

I accept that several insurer’s assessments contain information, in varying detail, about Ms. Bartlett’s vocational history, but I am not persuaded that these self-reports are sufficient to deny RBC pre-hearing access to Ms. Bartlett’s tax returns. While the returns may contain information that would impeach Ms. Bartlett’s credibility, the primary reason for production is simply their relevance to the issues in dispute. The returns are relevant to where Ms. Bartlett worked, how much she worked and how much she earned, both before and after the accident. RBC should not have to simply accept Ms. Bartlett’s word on these matters when easily accessible documentation exists to confirm or refute her information.

Again, I note that income tax returns from one year pre-accident to date are routinely requested and produced in post-104 week IRB claims, even where quantum is not in dispute. I see no reason in this case to depart from that practice. Ms. Bartlett did not submit that the time, effort or cost of compliance would be unduly onerous.

For the reasons stated, Ms. Bartlett shall produce a copy of any income tax returns filed with Canada Revenue Agency from one year prior to the accident to date.

Confirmation of whether the applicant is receiving social assistance, whether there is an assignment within the social assistance file, and a complete copy of the social assistance file

The parties acknowledged that their arguments related to the disclosure and production of any social assistance file that may exist are substantially similar to their arguments related to the disclosure and production of CPP and other disability files (item #2 above). However, I note one important distinction: applications for social assistance do not necessarily arise from disability.

If Ms. Bartlett is receiving social assistance, then it is relevant to the issues in dispute if the assistance she is receiving is in the form of disability benefits through the Ontario Disability Support Plan (“ODSP”). In that case, her application for ODSP and any documents filed in support are relevant. As with CPP and applications under income continuation plans, the insurer has a right to know the basis for the ODSP application, especially to know whether the application was based on sequelae of the motor vehicle accident alone or on other causes unrelated to the accident. As is customary with clinical notes and records of treating physicians, the insurer should have access to any medical documents contained in the ODSP file from one year prior to the accident to date.

Therefore, and for the same reasons outlined in item 2 above, Ms. Bartlett shall confirm whether she has applied for social assistance on the basis of disability through ODSP. If so, she shall produce a copy of her application and any documents filed in support. She shall also produce a copy of any response to her application, confirm the amounts and time periods for which any benefits were received, and produce a copy of any assignment or other agreement regarding repayment of benefits. She shall also produce a copy of any medical documents contained in the ODSP file from one year prior to the accident to date.

Confirmation of whether the applicant has attended any school courses or education sessions since the date of loss and if so, a complete copy of those files

Ms. Bartlett does not deny that her educational history is relevant to her claim for post-104 week IRBs. However, she resists providing RBC with any information about her education on the basis that RBC has already determined that she is not substantially unable to return to the employment she was engaged in at the time of the accident (i.e. the pre-104 week test). As such, the request for information about her educational history is not for the purpose of further adjustment, but a bald attempt to engage in discovery for the hearing.

Ms. Bartlett also pointed out that RBC had the opportunity to conduct assessments based on the post-104 week test, but, for whatever reasons, chose not to. She argued that this would have been the appropriate course of action for RBC to take, if it wished to secure an opinion on her ability to engage in other suitable employment based on her education, training or experience.²⁵

Ms. Bartlett conceded that in at least two assessment reports,²⁶ she mentioned her plan to pursue academic upgrading to obtain her high school equivalency. In view of these comments, Ms. Bartlett agreed to answer the narrow question of whether she followed through with this plan.

Ms. Bartlett’s educational history is clearly relevant to the post-104 week inquiry. The question, it seems, is whether Ms. Bartlett can keep this information from RBC until the hearing because RBC requested the information in connection with the arbitration proceeding rather than pursuing the information through post-104 week section 42 assessments.

RBC chose not to subject Ms. Bartlett to post-104 examinations that would assess whether she suffers from a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience. Instead, since no later than the pre-hearing in June 2010,²⁷ RBC has repeatedly asked Ms. Bartlett to provide information about her educational history. Whether the request is seen as a request for information for adjusting purposes (pursuant to section 33 of the Schedule) or a request for information reasonably necessary for the determination of the issues in dispute in the arbitration (pursuant to Rule 32.3 of the Code) or a request intended to address both purposes, RBC’s request represents a much less onerous burden on Ms. Bartlett than subjecting her to yet further section 42 assessments in order to obtain her full educational history, pre and post-accident.

I acknowledge that FSCO arbitration proceedings do not provide formal oral discovery or the opportunity to examine a party by written interrogatories. Still, the pre-hearing process is intended to provide for a full and frank exchange of relevant documentation and information necessary for the determination of the issues in dispute. It allows the parties to properly prepare for the hearing and counters trial brinkmanship. Just as importantly, an open and cooperative exchange promotes settlement. While it is important that the pre-hearing not devolve into an examination for discovery or an inquiry into matters of mere tangential importance, the parties should be prepared to exchange key information directly related to the issues in dispute.

I do not accept that engaging experts to conduct assessments and generate reports is the only means by which an insurer can gather information relevant to the issues in dispute. I find that RBC’s request for information about Ms. Bartlett’s educational history as part of the pre-hearing process was not only appropriate, but I find it somewhat puzzling that Ms. Bartlett seemingly would have preferred for RBC to set up further section 42 examinations to pursue the information. Ms. Bartlett argued that an assessment would have at least provided her with the opportunity to secure a rebuttal report. However, at this point, RBC is simply requesting information that is directly relevant to an issue in dispute. In the event that RBC provides Ms. Bartlett’s educational history to an expert for an opinion upon which it intends to rely, there will be the opportunity to cross-examine the expert on the report and, depending on the timing of the report, there may also be the opportunity to secure a rebuttal report.

In the result, Ms. Bartlett shall confirm whether she has attended any school courses or education sessions since the date of loss. If so, she shall provide the names of the institutions through which the courses or sessions were taken; identify the courses or sessions; provide the dates that she was enrolled in the courses or sessions; and, confirm the status of her attendance in the courses or sessions, including interim or final grades and any accreditation received.

To provide details of the applicant’s complete employment history

The submissions with respect to providing particulars about Ms. Bartlett’s employment history are substantially the same as those regarding her educational history. Particulars of her past employment, i.e. positions held, job tasks, hours worked and remuneration, are all relevant to the post-104 week test.

Ms. Bartlett did not deny that she has work experience other than her job at the time of the accident as an assistant manager at Marek Hospitality. The section titled “employment background” in Dr. Hines’ psychiatry assessment report dated December 24, 2008²⁸ provides that “Ms. Bartlett stated that she has also worked as a secretary, in a bakery and at Tim Horton’s.”

For the same reasons outlined in item 5 above, Ms. Bartlett shall provide a summary of her employment history prior to her employment with Marek Hospitality Cafeteria. The summary shall include the names of past employers; dates of employment; positions held; a brief account of job tasks and hours worked; and, remuneration.

To provide the employment file of Marek Hospitality Cafeteria

Ms. Bartlett refused to provide a copy of her employment file primarily on the grounds that her counsel has obtained and reviewed the file, and determined that there is nothing within the file relevant to the issues in dispute. Without suggesting an attempt by Ms. Bartlett’s counsel to withhold relevant information, RBC challenged Ms. Bartlett’s right to determine what is and is not relevant within the file. In response, Ms. Bartlett noted that counsel is often called upon to vet files, as when insurer’s counsel redacts reserve information from the adjuster’s file or when either counsel identify and withhold privileged communications from production.

Both counsel suggested that, in the event I found it to be inappropriate for Ms. Bartlett’s counsel to vet her employment file, an acceptable alternative would be for me to review the file and determine the relevance of its contents.

I agree that counsel frequently review files for relevance and to identify privileged communications. Al-Obaidi recognized that “[l]awyers are routinely called on to make judgement calls on what is and is not producible, whether on the basis of privilege or relevance. Although arbitration does not involve affidavits of documents or discovery, the adjudication process, whether in this forum or in court, is, to a large extent, premised on a general assumption that lawyers will act in accordance with their professional obligations.”

However, a distinction should be drawn between a file that, based on the issues in dispute, would not generally be expected to contain much, if any, relevant information, and a file that, by its nature, has a clear and rational connection with the issues in dispute. In the case of the former, it may be appropriate for counsel to review the file to confirm that no relevant documents or information are contained within the file. In the case of the latter, I do not believe that it is fair for the producing party to withhold production on the basis of its own file review.

Ms. Bartlett’s employment file is an example of the latter. There is a clear and rational connection between her employment file and her claim for IRBs. Notwithstanding counsel’s assurance that it is not the case here, employment files frequently contain job descriptions outlining the tasks that make up the employment. They may also contain performance reviews that could speak to the insured person’s motivation to return to work, or not return to work. Employment files are also likely to contain information related to hours worked in a typical week which may be relevant to the demands of the job. These are but a few examples. The full nature and extent of relevant information that may be contained within an employment file cannot be determined without reviewing the file, and I do not find it appropriate that a party should be able to withhold production, at the pre-hearing stage, on the basis of its own review. Other than a limited review for reserve information and privileged communications, it is not something that is permitted with respect to the production of an adjuster’s log notes. Nor is it permitted with respect to the clinical notes and records of a claimant’s treating physicians.

As for the proposal that I review the employment file and determine the relevance of its contents, there is nothing extraordinary or unusual about this case, and the proposition that there should be recourse to an arbitrator to vet the contents of an employment file in every case involving entitlement to IRBs is untenable. It would be costly and inefficient, and represents the opposite of a broad stroke approach. The intervention of an arbitrator for document review should be restricted to very limited circumstances. As I noted in Ghaedsharagy, “A multi-staged pre-hearing or motion procedure to deal with production issues is time consuming and costly and should be avoided, if at all possible… . While a document-by-document (or note-by-note) vetting by an arbitrator may be necessary in limited circumstances,²⁹ the parties should try to avoid engaging the Commission in what effectively amounts to overseeing the execution of professional obligations by counsel to produce documents as required or directed.”

Finally, I note that employment files, like disability files, are routinely produced where entitlement to IRBs is in dispute, and I find no reason to depart from the standard practice in this case. Ms. Bartlett’s counsel is already in possession of the employment file, so any arguments related to the time, effort or cost of securing the file do not apply. Ms. Bartlett did argue that any banking information that may be contained in the file for payroll purposes is not only sensitive, but clearly irrelevant to the issues in dispute. I agree.

For all of the above reasons, Ms. Bartlett shall produce a copy of the employment file of Marek Hospitality Cafeteria. Any banking information contained in the file may be redacted.

EXPENSES:

The expenses of the motion are left to the discretion of the hearing arbitrator.

August 31, 2011

Robert Bujold Arbitrator

Date