Margie Bateman v. Intact Insurance Company, 2013 ONFSCDRS 151

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 151

FSCO A12-000503

BETWEEN:

MARGIE BATEMAN

Applicant

and

INTACT INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Arbitrator Suesan Alves

Heard: January 18, 2013 by teleconference. The motion was re-opened on February 26, 2013. Further written submissions were received by March 14, 2013

Appearances: Gordon Good for Ms. Bateman

Deborah G. Neilson for Intact Insurance Company

Issues:

The Applicant seeks production of the Insurer’s file to the date of the hearing. The Insurer submits that it has provided the entire file with the exception of invoices, reserve information, and documents over which it asserts claims of privilege. The Insurer claims privilege with respect to several documents.

The Applicant disputes that the Insurer has provided the entire file. She submits there are gaps in the documentation provided by the Insurer, that the Insurer cannot assert blanket claims for privilege and seeks additional production orders.

The issues are:

A Is the Applicant entitled to production orders for the following:

1. Complete accident benefit file from all adjusters.

2. All log notes and written memoranda for every adjuster with carriage of this file since the date of the collision on February 14, 1996.

3. Particulars of all log notes which do not show a date or name.

4. Production of copies of all of the associated adjusters’ log notes, including those of Karen Paulger, the current adjuster, from November 5, 2009 to date.

5. Production of Adjusters and Log Note Record - indicating which notes were received and which have not yet been provided, in accordance with the attached chart.

6. Production of all documentation from the entity known as the LECB Committee.

7. Explanation as to the whereabouts of Ms. Bateman’s claim file based on the log notes of Donald Hull dated October 27, 2001.

8. Log notes of Tom Norton (redactions where necessary for reserve information).

9. Documents prepared by Donald Hull of McLaren’s Toplis Canada found at items 9, 10, 11, 12, and 13, and production of the payment printouts referred to at item 11 (with redactions).

10. Reports of Gary Annandale dated June 30, 2004 and June 10, 2005 (with redactions if necessary).

11. Unknown author’s report dated July 18, 2007 and note of unknown date at item 20 on page 17 of the Karen Paulger affidavit (with redactions if necessary).

12. Produce the January 9, 2009 adjuster’s note of Ron Henry at item 21 (with redactions if necessary).

13. Produce complete file, including all documentation and log notes. for Patti Horwath.

14. Produce all documentation from adjusters to their superiors, including documentation from Audrey Antoine, Suzanne Maraj, and the LECB Committee.

15. Produce all documentation from any and all superiors to all individuals higher up the insurer organization.

16. Produce the April 7, 2010 e-mail of Karen Paulger at item 23 (with redactions if necessary).

17. Advise as to the date of the e-mail to Philippine Brown, Debbie Diamanti, and Lisa White confirming 4/5 of file was still missing, and produce any responses.

18. Confirmation that the file from Granite Claims Solutions, formerly McLarens Toplis, has been produced.

19. Position, contact information, and production of all files for Patti Horwath, Colleen Miller, and Robert Furukawa.

20. All documentation regarding any and all changes in claim reserves following:

the obtaining of the unrepresented Margie’s agreement to extend the statutory time requirement for the insurer to deliver an LECB offer in order to obtain a further medical opinion which led to the denial by the insurer of Ms. Bateman’s caregiver benefit.

21. Copies of the 2 documents dated August 5, 1999 and September 13, 2004 listed as legal opinion and opinion.

22. Form 1 Assessment of Attendant Care Needs prepared by rehabilitation consultant referenced at log note of Heidi Tapper dated September 10, 1996.

23. Addendum to Form 1 prepared by rehabilitation consultant referenced at log note of Colleen McDonald dated November 4, 1997.

24. The medical summary referenced in the log note of Donald Hull dated November 9, 2001.

25. All documentation with respect to claims for benefits received and benefits paid, including chronological payment summaries.

26. Production of all manuals, directives, or memoranda used or available for the purposes of adjusting Ms. Bateman’s claim for benefits.

27. All surveillance particulars since the date of the collision on February 14, 1996 to the present.

28. A sworn Affidavit of Documents with a particularized Schedule B.

29. Reasons for discrepancies between the medical index provided by counsel for Intact on September 6, 2011, and the indexes to Intact’s Arbitration Medical and Rehabilitation Briefs.

30. Reasons for not providing the insurer-commissioned Transferable Skills Analysis Report of Bruno Rositano dated July 16, 2010 before Intact’s Medical Brief Index was provided on September 6, 2011

31. Contact information—last known address, telephone number and email address for each of 15 adjusters on the file, including Dina Varga

32. The whereabouts of Dina Varga’s log notes

33. Cheques in relation to benefits paid Ms. Bateman

B. Which party is entitled to expenses of the motion?

Result :

A. The Applicant is entitled to most of the production orders sought as detailed below.

B. The Applicant is entitled to expenses of the motion in any event of the cause. If there is a dispute as to the amount of expenses, the hearing arbitrator may determine the amount.

Background

The Applicant sustained a head injury and orthopedic injuries in a motor vehicle accident which took place on February 14, 1996. Zurich originally responded to her claims for benefits, however, as a result of the sale of Zurich’s assets, the current statutory accident benefit insurer is Intact.

In this arbitration, Ms. Bateman claims entitlement to a loss of earning capacity benefit offer, attendant care, housekeeping, supplementary medical, rehabilitation benefits, interest, expenses and a special award. Intact denies the Applicant is entitled to the relief she seeks and claims entitlement to a set off and its expenses.

The Applicant seeks production of the accident benefits file from the date of the accident to the date of the hearing. The Insurer submits that it has produced the entire file with the exception of invoices, reserve information, and documents over which it asserts claims of privilege.

I will first deal with the period during which Intact is obliged to produce its complete accident benefits file, then with the Applicant’s requests for an Affidavit of Documents, for witness contact information, for a medical summary, for manuals, directives and memoranda, for changes in reserves due to a LECB offer extension, for surveillance and her claim for expenses of the motion.

1. Complete accident benefit file

In the case of Campeau and Liberty Mutual Insurance Company, (FSCO A00-000522, March 12, 2001), Arbitrator Blackman, as he then was, stated: “It appears obvious that prima facie, a significant part of the insurer's file is going to be relevant to the entitlement issues in dispute. The whole raison d' etre of the insurer's adjusting file is to respond to the applicant's no-fault claim arising from the motor vehicle accident in question....”

In Campeau, Arbitrator Blackman used the date of the application for mediation as a prima facie dividing line between producible and non-producible insurer documentation, subject to submissions as to why the scope of production should be narrowed or broadened in a particular case.

In Vaitheeswaran and State Farm, (FSCO A09-002295 July 26, 2010, Arbitrator Murray used the date on which the Insurer received the copy of the Application for Mediation as the dividing line. In this case, I am persuaded that August 17, 2010, the date the Insurer received the second application for mediation from counsel for the Applicant, is the date on which litigation privilege can reasonably be said to attach. A few weeks later, on September 2, 2010, Intact retained its present counsel.

Intact shall produce the file from February 14, 1996 to August 17, 2010. This includes all the documentation requested by the Applicant in items numbered 1-34, which I find to be relevant and producible, with the exceptions of item 20 for reserves, and item 21 for legal opinions, which I deny; item 26 for manuals etc., which I grant in modified form; item 27, for surveillance, which I grant in modified form; and item 31, contact information for file handlers, which I grant in modified form.

2. Affidavit of Documents

The Applicant seeks an order requiring Intact to provide an Affidavit of Documents. In Dyczok and Wawanesa Mutual Insurance Company, (FSCO A02-000766, August 26, 2003), Arbitrator Blackman was of the view that in an alternate dispute resolution system, Affidavits of Documents should not form a routine part of the production process but should be ordered only in extraordinary circumstances. I agree.

In my view, the circumstances in this case, like those in Dyczok, are extraordinary. The Applicant has been seeking production of the Insurer’s file since 1998. Intact’s repeated assurances—sworn and unsworn—that it has provided the entire file followed by disclosure of a bit more documentation, is disturbing. The extraordinary circumstances in this case include evidence of missing documentation; evidence of two file numbers; the absence of key documents in the file which Intact has produced; the absence of meaningful responses to the Applicant's requests for information and documentation arising out of the productions which have been made; and the manner in which privilege has been claimed.

In these circumstances, as detailed below, I find that the Insurer has not produced the complete accident benefits file for the relevant period. I find that in the circumstances of this case it is appropriate to order Intact to provide an Affidavit of Documents.

The history of productions

Prior to the mediation the Insurer advised counsel for the Applicant that it had provided “pertinent documents from the file.”

Further requests were made by counsel for the Applicant for an updated file before he commenced the arbitration. In August 2011, Intact first provided assurances to the Applicant’s counsel that it had provided the accident benefits file.

In September 2012, Intact provided payment printouts from 1996 to 2003 and advised that it had located another portion of the file. In December 2012, counsel for Intact provided adjuster log notes from February 15, 1996 to June 25, 2010 and documents from another box located by Intact.

In December 2012, the current file handler swore an Affidavit in relation to the Applicant’s motion for productions, in which she deposed that all non-privileged communications had been produced and that Intact has produced its entire file pertaining to the Applicant.

In February 2013, the Insurer served its medical and rehabilitation briefs in relation to a hearing scheduled to start on March 11, 2013. Counsel for the Applicant reviewed the briefs, provided a preliminary detailed listing of 45 documents which he believed he was seeing for the first time in those briefs, and asked counsel for the Insurer to explain how this could be. He moved to reopen this motion for productions and sought additional production orders. I granted the request to reopen the motion.

In response to the Applicant’s further Affidavit material, Intact provided an Affidavit, sworn in March 2013 by a law clerk in the offices of counsel for the Insurer in which she deposed, amongst other things, that “when I advised the Applicant’s counsel that we were enclosing our client’s accident benefits file on August 10, 2011, I was not referring to a complete copy of the accident benefits file, inclusive of the medical and rehabilitation briefs.”

Counsel for the Applicant reviewed the documents which Intact had produced, noted that they contain references to two file numbers. The Insurer neglects or refuses to confirm that both files have been produced.

There is a notation in the Insurer’s file which states that four fifths of the file is missing The Insurer neglects or refuses to advise of the date of the note or to advise whether the missing portions have been found.

In January 2013, the Applicant brought a motion seeking production of the Insurer’s file. Counsel for the Applicant conducted a forensic analysis of the documents which Intact had provided and was able to establish that there are periods of time during which payments were made to the Applicant yet no adjusting notes had been provided. Instead of clarifying whether the notes had been lost, did not exist, providing any information, or the notes, the unhelpful response provided by the law clerk in the offices of counsel for the Insurer in her Affidavit was “however, there is no evidence or indication that adjusters make a note of every single action on a file.”

Counsel for the Applicant provided a detailed listing to counsel for the Insurer of the 45 documents contained in the Insurer’s briefs served in February 2013 which he stated he believed he was seeing for the first time. The Insurer’s responding Affidavit of the law clerk in the office of counsel for the Insurer asserts a belief that the documents were provided, but does not for the most part reference the 45 specific documents.

Counsel for the Applicant notes that an adjuster never before mentioned, Dina Varga, has now been identified in the Insurer’s briefs; however, none of her adjusting notes have been produced, nor has her contact information been provided.

Explanation of Benefit forms, cheques and chronological payment summary

There is a dispute as to what benefits were paid and when payments were made. The Applicant alleges that the Insurer would issue cheques to her without Explanation of Benefit forms.

Key documents which an insurer is required to generate in the course of adjusting an accident benefit file have not been provided, such as Explanation of Benefit forms. These forms were specifically requested by counsel for the Applicant in March 2008. Counsel for the Applicant asks why would Intact not have been in possession of such forms, issued by their office, and if in possession of them, why have they not been produced as part of the file.

The Explanation of Benefit forms and the cheques are relevant to benefit entitlement, interest, a special award and the amount of any claims for a set-off. The Applicant shows that payments have been made to her for certain expenses, while the Insurer’s payment summary does not reflect these payments. She seeks an explanation of why payments were issued under the category “medical-chiropractic” when she never attended a chiropractor.

Counsel for the Applicant has advised counsel for the Insurer that it cannot be confirmed from the payment printouts provided on September 6, 2011 and October 19, 2012, that the cheque numbers listed in Karen Paulger’s payment chart dated February 14, 2012 were issued.

In the absence of these productions a great deal of hearing time will be consumed dealing with facts which would ordinarily be established by documentary evidence about which the parties could reasonably agree. The Explanation of Benefits forms, cheques and a chronological payment summary by category of the benefits in issue in this arbitration should be provided.

The form 1s

Attendant care benefits are in dispute in the arbitration. Claims for such benefits are accompanied by a Form 1. In its Response by Insurer to the Application for Arbitration, the Insurer states in part: “In the alternative, the Insurer states that no Form 1 was ever submitted by the insured and, accordingly, it is not liable for the $10,973.00 plus interest claimed by the insured.”

In response to questions from counsel for the Applicant at the pre-hearing and at resumptions, assertions have been repeatedly made by counsel for the Insurer that there is only one Form 1 in the file, and that the form itself has not been completed. The Affidavit of the current file hander filed on the motion for productions is to similar effect. Ms. Paulger deposes: “I have reviewed the file and believe it to be true that the applicant has never submitted a Form 1 to either Zurich or Intact.”

On reviewing the documents which Intact produced, counsel for the Applicant noted that there are references to four Form 1s in the Insurer’s file, and that two of these had not been produced. Counsel for the Applicant seeks productions with respect to the Form 1 Assessment of Attendant Care Needs prepared by rehabilitation consultant referenced at log note of Heidi Tapper dated September 10, 1996. He also seeks production of the Addendum to the Form 1 prepared by rehabilitation consultant referenced in a log note of Colleen McDonald dated November 4, 1997. I find these are relevant documents which should be produced.

Intact’s claims of privilege

In L’Abbé v. Allen-Vanguard, 2011 ONSC 7575, the Court observed that “there should be a mutual interest in identifying critical documentary evidence while preserving legitimate claims for privilege.”

Intact sets out 39 groups of documents over which it asserts claims of solicitor client privilege, litigation privilege, privilege with respect to reserves and settlement privilege. More than one privilege is claimed in relation to some documents. Entire documents are withheld instead of producing the document and redacting the material for which privilege is claimed. This makes it difficult for opposing counsel or an arbitrator to determine whether privilege is claimed legitimately.

For example, the current file handler deposes in her Affidavit “disclosure of Don Hull’s communications of an unknown date and of October 26, 2001 would disclose personal information of 12 people who have no relation to Ms. Bateman’s claim.” The appropriate step is to disclose the portions of the note which relate to Ms. Bateman and redact the personal information of the 12 people who have no relation to Ms. Bateman’s claim and advise that this is the basis for the redaction.

For these reasons, I order the Insurer to prepare and serve an Affidavit of Documents as was required in Dyzcok, the particulars of which are set out in the Order, below.

3. Witness contact information

The Applicant seeks contact information – last known address , telephone numbers and email addresses for 14 people who have carriage of the file or and more recently for a 15th, Ms. Dina Varga, an adjuster whose involvement has recently came to the attention of counsel for the Applicant. This information was also sought in relation to two other individuals who dealt with the file in some manner. Counsel for the Insurer was not prepared to make these persons available to give evidence or to provide their contact information.

There is no property in witnesses. Our system of justice depends on witnesses coming forward who can provide relevant evidence. Intact shall provide the last known address, telephone number and email addresses of Colleen MacDonald, Heidi Tapper, Cindy L. Parkin, Graham Thurston, Tom Norton, Marisol Torres, Cita M. Gondayao and Valerie McConnachie, all from Zurich; Bruce Johnson of Cunningham; Donald Hull and Susan Dearden of McLarens; Ron Henry, and Garry Annadale of ING and Karen Paulger of Intact. It is also to be provided in relation to Dina Varga, Colleen Miller and Robert Furukawa. This information is to be produced to counsel for the Applicant by December 5, 2013 at 4:30 p.m.

Based on the Affidavit of Ms. Paulger, Intact is not required to provide contact information in relation to Mary Urquhart, whose sole involvement was to handle the mediation and who did not adjust the file. It is also not required with respect to Dana Zuech who has been identified as in-house counsel at Zurich.

4. The medical summary

The Applicant seeks production of a 48 page medical summary of 658 pages of documents referenced in the file note of Donald Hull of November 9, 2011. According to a file note, dated October 26, 2001, the summary was prepared at the request of the Insurer, by caseworkers at Federal Rehab to send it to a psychologist who would perform a pscyhovocational assessment of the Applicant. The document is relevant and should be produced.

5. Manuals, directives and memoranda

The Applicant seeks production of manuals, directives and memoranda used or available for the purposes of adjusting the Applicant’s claim for benefits. I am not persuaded manuals are relevant. I am persuaded that directives or memoranda which were used for the purposes of adjusting Ms. Bateman’s claim for benefits are relevant and should be produced.

6. Reserves

The Applicant sought production of changes in reserve information in relation to a discrete period of time—the period around the time Intact obtained her consent to defer its obligation to make a LECB offer. She seeks production of the changes, if any, in reserves as a result of the obtaining of the extension, subject to the hearing Arbitrator’s decision as to admissibility. Intact submitted that it had not waived privilege with respect to reserve information.

Generally, reserve information has been considered to be irrelevant. The amounts of the reserves have also been held to be privileged. Uka and Aviva Canada (FSCO P08-00036, July 16, 2009). Mamaca (Litigation Guardian of) v. Coseco Insurance Co., 2007 CanLII 54963 (ON SC), [2007] O.J. No. 4899. I am not persuaded that I have the authority to make the Order sought.

7. Surveillance

The Applicant seeks production of all surveillance particulars since the date of the collision on February 14, 1996 to the present. According to the Affidavit of the current file handler, the Insurer conducted surveillance, has a report dated July 31, 2003, but had not yet determined if it will rely on the report at the arbitration hearing.

Pursuant to Rule 40.1 of the Dispute Resolution Practice Code, Intact shall determine whether it intends to rely on any of its surveillance or investigative evidence, and advise the Applicant of its position by December 5, 2013. If it intends to rely on any portion of its surveillance evidence, Intact shall provide copies of all of the surveillance and investigative evidence in its possession by December 18, 2013.

Expenses

The Applicant sought expenses of the motion. The Insurer made no submissions with respect to expenses of the motion. I award the Applicant her expenses in any event of the cause because of her degree of success on these motions.

In my view, many of the documents she sought are produced on consent by insurers based on arbitral jurisprudence which has been in existence at least since 2001. I am not persuaded that an Applicant should have to repeatedly conduct a forensic examination of the documents produced as was required in this case. In the event the parties are unable to agree on the amount of the Applicant’s expenses of this motion, the hearing arbitrator may determine them.

November 26, 2013

Suesan Alves

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 151

FSCO A12-000503

BETWEEN:

MARGIE BATEMAN

Applicant

and

INTACT 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:

1. Intact shall, by 4:30 p.m. on December 5, 2013 provide counsel for the Applicant with the last known address, telephone number and email addresses of all file handlers, including Colleen MacDonald, Heidi Tapper, Cindy L. Parkin, Graham Thurston, Tom Norton, Marisol Torres, Cita M. Gondayao and Valerie McConnachie, all of Zurich; of Bruce Johnson of Cunningham; of Donald Hull and Susan Dearden of McLarens; of Ron Henry, and Garry Annadale of ING; Karen Paulger of Intact; of Dina Varga, Colleen Miller and Robert Furukawa.

2. Intact shall, by 4:30 p.m. on December 5, 2013, advise counsel for the Applicant of its decision whether it intends to rely on any of its surveillance or investigative evidence. If Intact intends to rely on any such evidence, it shall produce copies of all such surveillance and investigative documents to counsel for the Applicant by 4:30 p.m. on December 18, 2013.

3. By December 18, 2013, Intact shall produce: its complete file in relation to Ms Bateman’s claim for accident benefits from the date of the collision on February 14, 1996 to August 17, 2010, including all log notes and written memoranda for every adjuster with carriage of this file or associated with this file including inside and outside adjusters; particulars of all log notes which do not show a date or name; the complete file and all documentation and log notes for Patti Horwath, Colleen Miller, Robert Furukawa and for Dina Varga; all documentation from adjusters to their superiors, including documentation from Audrey Antoine, Suzanne Maraj, and the LECB Committee; all documentation from any and all superiors to all individuals higher up the insurer organization; an

Adjusters and Log Note Record - indicating which notes were received and which have not yet been provided, in accordance with the chart prepared by counsel for the Applicant; all documentation from the entity known as the LECB Committee; an explanation as to the whereabouts of Ms. Bateman’s claim file and of Dina Varga’s log notes; a copy of the medical summary prepared at the insurer’s request and referenced in the November 9, 2001 file note of Donald Hull; the log notes of Donald Hull dated October 27, 2001; the log notes of Tom Norton, redacted where necessary for reserve information; documents prepared by Donald Hull of McLaren’s Toplis Canada found at items 9, 10, 11, 12, and 13, and the payment printouts referred to at item 11 of Karen Paulger’s Affidavit (with redactions); the reports of Gary Annandale dated June 30, 2004 and June 10, 2005 (with redactions if necessary); the unknown author’s report dated July 18, 2007 and note of unknown date at item 20 on page 17 of the Karen Paulger Affidavit (with redactions if necessary); the January 9, 2009 adjuster’s note of Ron Henry at item 21 (with redactions if necessary); the April 7, 2010 e-mail of Karen Paulger at item 23 of her Affidavit, (with redactions if necessary); position, contact information of and production of all files for Patti Horwath; reasons for discrepancies between the medical index provided by counsel for Intact on September 6, 2011, and the indexes to Intact’s Arbitration Medical and Rehabilitation Briefs; reasons for not providing the insurer-commissioned Transferable Skills Analysis Report of Bruno Rositano dated July 16, 2010 before Intact’s Medical Brief Index was provided on September 6, 2011; all documents with respect to claims for benefits received and paid, including a chronological payment summary of benefits paid by category of benefits in issue in this arbitration, copies of cheques showing what payments were made and Explanation of Benefit forms; the Form 1 Assessment of Attendant Care Needs prepared by the rehabilitation consultant referenced in a log note of Heidi Tapper dated September 10, 1996 and the Addendum to Form 1 prepared by the rehabilitation consultant referenced in a log note of Colleen McDonald dated November 4, 1997; and directives and memoranda used in the adjusting of Ms. Bateman’s claim for benefits;

1. By 4:30 p.m. on December 18, 2013 Intact shall: advise as to the date of the e-mail to Philippine Brown, Debbie Diamanti, and Lisa White confirming 4/5 of file was still missing, and produce any responses; and confirm that the file from Granite Claims Solutions, formerly McLarens Toplis, has been produced.

2. Intact shall by 4:30 p.m. on December 18, 2013, serve on counsel for the Applicant and file with the Financial Services Commission of Ontario, by email addressed to Suesan.alves@ fsco.gov.on.ca, an Affidavit of Documents pertaining to the accident benefits file arising from Ms. Bateman’s February 14, 1996 motor vehicle accident, sworn by a person in authority at Intact who might reasonably be expected to have knowledge of the transactions or occurrences in issue, setting out: confirmation that (i) the deponent has conducted a diligent search of Intact’s records and has made appropriate enquiries of others to inform herself or himself in order to make such affidavit and that (ii) the affidavit discloses, to the full extent of the deponent’s knowledge, information and belief, all documents relating to the accident benefits file that are or have been in Intact’s possession, control or power, excluding documents which are in the exclusive control of its counsel and which counsel has not shared with or communicated to Intact.

(a) in Schedule “A,” by consecutively numbered document, every document and every dated and undated log or computer entry in Intact’s possession, power or control which was created or came into existence on or before August 17, 2010. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document. Intact shall further provide sworn confirmation that every document listed therein has been provided to counsel for the Applicant or shall forthwith provide to him any document so listed which has not been provided, together with an explanation as to why the document had not yet been served.

(b) in Schedule “B,” by consecutively numbered document, every document and every dated and undated log or computer entry in Intact’s possession, power or control which was created or came into existence after February 14, 1996 which Intact does not object to producing to counsel for the Applicant. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document. Intact shall further provide sworn confirmation that every document listed therein has been provided to counsel for the Applicant or shall forthwith provide to him any document so listed which has not been served.

(c) in Schedule “C,” by consecutively numbered document, every document and every dated and undated log or computer entry in Intact’s possession, power or control which was created or came into existence after February 14, 1996 which Intact objects to producing to the Applicant. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document. Intact shall, for each listed document, articulate and particularize the full grounds for its objection to producing the document.

(d) in Schedule “D,” by consecutively numbered document, every document and every dated and undated log or computer entry in Intact’s possession, power or control which was created or came into existence after February 14, 1996 that was formerly in Intact’s possession, control or power, but is no longer in its possession, control or power, whether or not any other objection to production is made, together with a statement of when and how the party lost possession or control of or power over the document and its present location. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document.

(e) a statement that Intact has never had in its possession, control or power any document relating to its accident benefits file arising from Ms. Bateman’s motor vehicle accident of February 14, 1996 other than those listed in the affidavit, excluding documents which are in the exclusive control of its counsel and which counsel has not shared with or communicated to Intact.

(f) A certificate signed by a lawyer that he or she has explained to the deponent the necessity of making full disclosure of all documents relating to its accident benefits file arising from Ms. Bateman’s February 14, 1996 motor vehicle accident.

6. Counsel for Ms. Bateman shall, by 4:30 p.m., on December 20, 2013, serve on Intact and file with the Financial Services Commission of Ontario, his submissions as to any challenge he may have of any document listed in Schedule “C” of Intact’s Affidavit of Documents.

7. Intact shall, by 4:30 p.m., on December 23, 2013, file with the Financial Services Commission of Ontario, a copy of each document listed in Schedule “C” of its Affidavit of Documents which is challenged by Ms. Bateman. On the basis of the grounds articulated and particularized in Intact’s Affidavit of Documents and the written submissions filed by Ms. Bateman, I shall determine what, if any, further documents shall be produced by Intact. Those documents not ordered to be produced shall be sealed.

8. Intact shall pay Ms. Bateman’s expenses of the motion in any event of the cause. If there is a dispute as to the amount of her expenses, they may be assessed by the hearing arbitrator.

November 26, 2013

Suesan Alves

Arbitrator

Date