Mary Anthonipillai v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2012 ONFSCDRS 108

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 108

FSCO A11-001168

BETWEEN:

MARY ANTHONIPILLAI

Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON A MOTION FOR THIRD-PARTY PRODUCTION

Before: Jessica Kowalski

Heard: June 15, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: No one appearing for Mrs. Anthonipillai

No one appearing for the third party, Ms. Sharel George

Domenico Nicassio for Security National Insurance Co./ Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Mary Anthonipillai, was injured in a motor vehicle accident on April 21, 2008. She applied for and received statutory accident benefits from Security National Insurance Co./ Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ Disputes have arisen between the parties regarding Ms. Anthonipillai’s entitlement to certain accident benefits. A hearing before the Commission to determine entitlement is pending.

Security National brought a motion, pursuant to Rule 67 of the Dispute Resolution Practice Code (the “Code”), for an order compelling a third party, Sharel George, to produce “a full and unedited copy of her academic schedule from the University of Toronto for the two-year period between April 21, 2008 and April 21, 2010.”

Result:

The motion is dismissed.

EVIDENCE AND ANALYSIS:

Sharel George is not a party to this application. She is Mrs. Anthonipillai’s daughter and is alleged to have provided housekeeping and caregiving services to Mrs. Anthonipillai between April 21, 2008 and April 21, 2010. Ms. George was a student at the University of Toronto during the time that the services are alleged to have been provided, but it is unknown if her studies were full- or part-time. She has not confirmed her status and has not responded to Mrs. Anthonipillai’s counsel’s requests for her records.

Ms. George did not participate in this motion despite being properly served. Prior to the motion, Mr. Sangha (counsel for Mrs. Anthonipillai) wrote to the Commission to say that his client would not be participating and took no position, neither consenting to nor opposing the motion.

The records in question are not about a party to this application and do not contain any information about Mrs. Anthonipillai. Rather, they contain information about Ms. George’s school courses. Her school schedule sheds no light on Mrs. Anthonipillai’s alleged impairments. Its relationship to Mrs. Anthonipillai comes in the form of essentially substantiating the caregiving and housekeeping receipts submitted to Security National. Security National finds the receipts submitted to be excessive and wants to challenge the time for services claimed before the hearing.

The test set out in Rule 67.7 of the Code requires, among other things, that before making an order for the production of documents against a third party, the document is reasonably required to ensure a just and fair hearing. Specifically, Rule 67.7 provides that:

67.7 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 document sought;

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

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

I find that the parties have made reasonable efforts to obtain Ms. George’s school schedule. To his credit, Mr. Sangha has written to Ms. George as far back as February 3, 2012, telling her “please we need the document mentioned as soon as possible.” On February 16, 2012, his office sent Ms. George an authorization to sign and asked her about which University of Toronto campus she was attending. Mr. Sangha has provided to the Commission copies of e-mail and regular mail to Ms. George requesting the schedule. The academic schedule is in Ms. George’s possession and/or control, and she has had more than reasonable opportunity to respond. It appears that Ms. George has ignored those requests.

Based on Security National’s submissions, Ms. George’s failure to produce her academic schedule at this time prejudices the parties’ ability to engage in meaningful settlement discussions and possible efforts to avoid a hearing because no light has been shed on Ms. George’s ability to devote the amount of time she has claimed to have assisted her mother with housekeeping and caregiving services while balancing her school schedule.

If Ms. George’s school schedule is a big obstacle to settlement, and if her mother wants to engage in settlement negotiations, Ms. George may produce the material her mother has requested. If not, it may be that her mother is denied the opportunity to engage in settlement discussions and will proceed to a hearing, in which case Security National will have the opportunity to cross-examine Mrs. Anthonipillai and Ms. George.

I am not persuaded that the records are so relevant that their non-disclosure now would prejudice a just and fair hearing so that I should therefore set aside privacy concerns around documents that contain information personal to a third party but none about a party to this proceeding.

Nor am I persuaded that the academic schedule is as probative as Security National asserts. That schedule will not disclose how often, or even whether, Ms. George attended her classes.

For these reasons, the motion is dismissed.

EXPENSES:

In view of the result of this motion, I make no order for expenses.

July 13, 2012

Jessica Kowalski

Arbitrator

Date