Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 132
FSCO A12-001040
BETWEEN:
JEMEAMLOUIS PHILLIPAIYA
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Susan Sapin
Heard: By written submissions received September 27, 2013
Appearances: Jeffrey Raphael for Mr. Phillipaiya
Brian Murphy for TD Home and Auto Insurance Company
Background:
The parties continue to be unable to resolve their disputes about outstanding productions and the Applicant’s attendance at Insurer Examinations (IEs) despite my decision of September 6, 2013 which found that the Insurer’s IEs were reasonably required and despite the arbitration hearing scheduled to begin on November 4, 2013.
TD Home brought a motion for an Order to compel Mr. Phillipaiya to produce certain documents and for certain third party orders under Rule 67 of the Dispute Resolution Practice Code. I wrote to the parties on September 12, 2013 and, in the interests of resolving matters without jeopardizing the upcoming hearing date, I required Mr. Phillipaiya to write to TD Home within seven days indicating his efforts to comply with its production requests and to advise if any third parties declined to produce requested documents. I instructed the Case Administrator to provide my available dates to hear TD’s motion via teleconference. I further advised the parties that if they could not agree on a mutually convenient and timely date, I would determine their disputes on the basis of written submissions to be received no later than September 27, 2013.
The parties were unable to agree on dates. I received written submissions from TD Home which included, in addition to its request for production Orders against Mr. Phillipaiya and third parties, a request for various forms of relief as a result of Mr. Phillipaiya’s refusal to attend IEs scheduled by TD Home after my September 6, 2013 decision.
I have reviewed the submissions of the parties and the subsequent flurry of correspondence that ensued, and have determined that I have sufficient information to address the production disputes. A further teleconference at this time would do nothing to advance matters. Accordingly, I have issued this decision based on the written submissions.
Result:
Any outstanding disputes regarding productions and any issues regarding the scheduling and attending at IEs not resolved by this motion decision or by agreement of the parties are to be put before the hearing arbitrator on the first day of the hearing as the person best able to impose consequences for non-compliance in the context of the overall merits of the case and in the interests of procedural fairness to both parties.
Accordingly, no request for an adjournment or stay of the arbitration hearing based on disputes about outstanding productions or attendance at IE’s will be granted. The parties will attend before the hearing arbitrator on November 4, 2013 and the hearing arbitrator will determine all outstanding disputes.
My reasons follow.
Non-attendance at IE’s:
This motion was intended to deal with outstanding productions and TD Home’s request for third party Orders in as timely a manner as possible, given the impending arbitration hearing. It was not intended to address Mr. Phillipaiya’s refusal to attend IEs scheduled subsequent to my September 6, 2013 decision. Nevertheless, in its submissions for this motion, TD Home requested relief as a consequence of Mr. Phillipaiya’s non-attendance:
An Order dismissing the arbitration proceeding in its entirety;
In the alternative, an Order dismissing the arbitration proceeding and terminating benefits as consequence of failing to voluntarily disclose ongoing activities while still claiming entitlement to benefits’ payments;
In the alternative, direction from FSCO regarding Mr. Phillipaiya’s continuing refusal on the advice of counsel to attend the post 104 IEs addressed in my September 6, 2013 decision;
In the further alternative, an order staying the arbitration if Mr. Phillipaiya did not attend the IE’s.
I am not in a position to consider the matter of Mr. Phillipaiya’s refusal to attend the IEs scheduled subsequent to my September 6, 2013 decision, nor to grant the relief requested by TD Home, for the following reasons:
The motion before me is a motion to compel productions from the Applicant and certain third parties, and I invited submissions on that basis. It is not a motion for relief against Mr. Phillipaiya’s non-attendance at IEs, and the Applicant did not have a fair opportunity to respond to that issue, given the September 27, 2013 deadline for submissions. Consequently a stay of the arbitration at this point would be inappropriate;
Mr. Phillipaiya has raised a defence for his non-attendance (the IE notices did not comply with the Schedule), which he is entitled to have heard. The motion for productions before me does not allow for a proper or fair hearing of that issue;
Although I am not in a position to determine the matter of non-attendance at the IEs, given the request for “direction,” I remind the parties that it is well-established by arbitral jurisprudence, that arbitrators do not have the authority to compel attendance at IEs. Their jurisdiction is limited to imposing consequences for non-attendance, such as, for example, the staying of an arbitration or the refusal to admit an applicant’s medical or other documents at the hearing in the interests of procedural fairness where an insured person declines to attend a properly scheduled IE. At this point in time, the person best able to decide this issue and to ensure procedural and substantive fairness to both parties in the overall context of a hearing on the merits is the hearing arbitrator.
TD Home’s request for an Order dismissing the arbitration proceeding and terminating benefits as a consequence of “. . . the Applicant allegedly failing to voluntarily disclose ongoing activities while still claiming entitlement to benefits’ payments” is completely inappropriate. The proper way to address credibility matters of this nature is through timely production of complete surveillance and other evidence before the hearing on the merits in accordance with the Dispute Resolution Practice Code, and the testing of the evidence through cross-examination at the hearing. This is a matter for the hearing arbitrator to determine.
Given the number of procedural and substantive issues in dispute between the parties and given that it is now five years since Mr. Phillipaiya’s accident, I find the fairest and most expeditious solution is for the hearing arbitrator to determine all of the disputes between the parties – preliminary , procedural and substantive — without further delay and with the benefit of more complete evidence and submissions.
Outstanding Productions:
Regarding whether there was any agreement on productions, I refer the parties to the pre-hearing letter of January 23, 2013 which required the parties to confirm production undertakings within 30 days and to complete production exchange, or provide proof of best efforts to comply, in the case of documents not in a party’s possession, control, or power, within 60 days of the pre-hearing.
Please note that under Rule 34, the consequence of a party’s failure to produce documents in compliance with an order or an agreement are the same in either event, and I refer you to Rule 34 and to the pre-hearing letter for what those are.
In this case it appears the Applicant agreed to provide authorizations to TD Home so that it could obtain the productions it requested. This is routine and it is unclear to me why the parties did not exercise this option sooner. It is very unusual for counsel who appear regularly before this Commission to be so at odds on production matters of this nature.
TD Home shall produce its complete adjusting file forthwith
In any event, it appears that TD Home’s complete adjusting file up to the date of the application for mediation, redacted for information about reserves and for which TD Home claims privilege, has yet to be produced. This is a routine production request and the Applicant is entitled to the file. TD Home shall produce it to Mr. Phillipaiya forthwith.
Updated Decoded OHIP Summary from September 28, 2010
This is clearly relevant and producible as Mr. Phillipaiya claims ongoing IRBs. It does not appear to have been requested in a timely manner and, according to TD Home, Mr. Phillipaiya did not include payment to the Ministry of Health and Long Term Care for the records. It is up to the parties to agree on who is responsible for paying for the records and how payment is to be arranged. If there are any consequences (eg prejudice to TD Home in defending against Mr. Phillipaiya’s claims) as a result of the delay in obtaining the records, the hearing arbitrator is in the best position to assess this and impose any consequences if required.
Decoded OHIP Summary from October 14, 2005 to October 14, 2006
This request is denied. TD Home has received a decoded OHIP summary for two years before the accident, which I find is a reasonable period to indicate if there were injuries or impairments pre-dating the accident.
Updated clinical notes and records from Dr. Raj Kirubahran from December 21, 2011
These are the records of the family doctor and are highly relevant due to Mr. Phillipaiya’s ongoing claims, and producible. They should be in chronological order with no gaps, and legible. If TD Home is dissatisfied with the quality of the doctor’s records, it should exercise its right to summons Dr. Kirubahran to the arbitration hearing to explain his records. I do not understand the request for colour copies.
Complete clinical records from Integrated Health and Wellness
These are relevant and producible and I will issue a Third Party Order for them to be produced.
Complete records of employment or self-employment of Mr. Phillipaiya and proof of income including tax returns and supporting data for 2010, 2011 and 2012
Again, these are directly relevant to Mr. Phillipaiya’s ongoing claim for IRBs past 104 weeks after the accident.
Complete Employment Files from Highland Farms and Vinyl-Tek Shutters and Blinds
These are relevant to the claim for post-104 IRBs and if either employer does not agree to produce these files I will issue an Order that they do so.
Collateral Benefits file 23366 from Industrial Alliance
If Mr. Phillipaiya was entitled to short or long term sickness benefits or coverage for medical treatment, TD Home is entitled to credit against his claims against it. The file is producible and if Industrial Alliance declines to produce it I will issue an Order that it be produced.
Third Party Orders:
I find that the documents requested from the third parties listed below are relevant to the issues in dispute in this arbitration proceeding and should be produced. It is not the practice of the Commission to issue orders against third parties for production of documents in their possession without providing an opportunity for them to respond to a motion to produce the documents, either in person or via teleconference. Consequently, I have written to the third parties advising that if they have any objection to produce the documents requested by TD Home, they are to contact the Commission with their submissions within 7 days of my letter, failing which I will issue an Order requiring them to produce the documents. I have also advised the third parties that if the documents are not produced, TD Home may choose to serve them with a summons which will require them to appear in person at the arbitration hearing with the documents.
The following third parties are required to produce the documents listed:
Dr. Raj Kirubaharan
2 Fenton Road, Unit4
Markham ON L3R 7B4
Integrated Health and Wellness Centre
40 Wynford Drive, Suite 212
North York ON M3C 1J5
Highland Farms
4750 Dufferin Street
North York ON M3H 5S7
Vinyl-Tek Shutters and Blinds
71 Innovation Drive, Unit 6
Vaughan ON L4H 0T2
Industrial Alliance
Ontario, Atlantic and Western Provinces
Group Health and Dental Claims
P.O. Box 4643, Station A
Toronto ON M5W 5E3
EXPENSES:
Counsel have expended a considerable amount of time and effort on production and other issues they should have resolved between themselves long ago, and exchanged a great deal of unnecessary correspondence that could have been avoided had they simply picked up the phone to work things out or taken a more reasonable approach to their mutual obligations. I find it would be unconscionable for either counsel to bill their respective clients for the time spent on that correspondence.
I exercise my discretion under s. 282(11.2)(c) to order that each legal representative shall personally bear his own costs of that extended and unfortunate exchange.
October 8, 2013
Susan Sapin
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 132
FSCO A12-001040
BETWEEN:
JEMEAMLOUIS PHILLIPAIYA
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Phillipaiya
October 8, 2013
Susan Sapin
Arbitrator
Date