Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 133
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. The hearing arbitrator is 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 proceeding 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 consequences 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. I understand the cost of OHIP records is relatively modest. If there are any consequences (e.g. 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 relevant and producible in light of Mr. Phillipaiya’s ongoing claims. 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. TD Home shall pay Dr. Kirubharan the reasonable cost to produce his records.
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
These are directly relevant to Mr. Phillipaiya’s ongoing claim for IRBs past 104 weeks after the accident, regarding whether or not he meets the post-104 eligibility test and regarding quantum of IRBs. Mr. Phillipaiya is required to produce them.
Third Party Orders:
I find that the requirements for a third party order contained in Rule 67 of the Dispute Resolution Practice Code against the parties listed below have been met. The documents requested are relevant to the issues in dispute in this arbitration proceeding and reasonably required to ensure a just and fair hearing. TD Home has served the parties with the motion record and the parties have had a reasonable opportunity to respond.
Consequently, I will issue an Order to each party listed below to produce the records indicated. I will also advise 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.
Complete clinical records from Integrated Health and Wellness
Integrated Health & Wellness Centre, is required to produce its complete clinical records.
Complete Employment File from Highland Farms
I will issue an Order for Highland Farms to produce to TD Home Mr. Phillipaiya’s complete employment file from Highland Farms, who was identified as his pre-accident employer, for one year pre-accident. The file shall include cheque stubs, records of cash payments, employment contracts, collateral benefits available and paid, record of attendance and hours worked, job description, if any, and Record(s) of Employment (“ROE”).
Collateral Benefits file 23366 from Industrial Alliance
If Mr. Phillipaiya was entitled to short or long term sickness benefits or coverage for medical treatment under this collateral insurance policy, TD Home is entitled to credit against his claims against TD Home. The file is producible and I note that Mr. Phillipaiya does not object to producing it, and wrote to request the file, with an authorization, somewhat belatedly, on September 20, 2013. Out of precaution I will issue an Order that Industrial Alliance produce the file.
Complete Employment File from Vinyl-Tek Shutters and Blinds from 2008 to present
Mr. Phillipaiya’s employment file at this company is relevant to the claim for post-104 IRBs, regarding both entitlement and quantum, and is therefore producible. This company is ordered to produce its complete employment file regarding Mr. Phillipaiya including cheque stubs, records of cash payments, employment contracts, collateral benefits available, if any, record of attendance and hours worked, job description, if any, and Record of Employment (“ROE”), from January 2008 to the present.
Striking parts of the Motion Record:
This is not a practice the Commission engages in. If the parties wish, I am prepared to remove the submissions and correspondence relating to this motion from the record in their entirety so that parties may engage in the upcoming arbitration proceeding with a clean slate, and make focussed and appropriate submissions before the hearing arbitrator as required.
EXPENSES:
Each party shall bear its own cost of this motion up to the filing of the first set of written submissions.
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 9, 2013
Susan Sapin Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2013 ONFSCDRS 133
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 shall produce to TD Home and Auto Insurance Company forthwith complete records of his employment or self-employment since October 2008 and proof of any and all income from employment including tax returns and supporting data for 2010, 2011 and 2012.
TD Home and Auto Insurance Company shall produce to Mr. Phillipaiya forthwith its complete accident benefits adjusting file up to the date of Mr. Phillipaiya’s application for mediation, redacted for information about reserves and for material for which TD Home and Auto claims privilege, with such material identified.
October 9, 2013
Susan Sapin Arbitrator
Date