FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2013 ONFSCDRS 92
Commission file No. A12-002612 ML
BETWEEN:
NALINI SASITHARAN
Applicant
and
SECURITY NATIONAL
Insurer
REASONS FOR PRE-HEARING DECISION
Patrick Schindler, Arbitrator
Appearances:
Sloan H Mandel for the applicant
Alexander Reyes for the insurer
Heard: 14 February and 17 May 2013 by telephone conference call and by written submissions dated 21 May and 27 May 2013
[1]. Mr Selvanayagam was killed in a car accident in December 2010. His widow and dependants claimed benefits under the Statutory Accidents Benefits Schedule arising from his death. It appears all claims have been paid and the outstanding issues are a claim for a special award, for interest at 2% per month and expenses of the arbitration.
[2]. By letter dated 22 January 2013, counsel for the applicant requested production of documents and provision of information from the insurer. Counsel for the insurer is prepared to provide the requested documents subject to redaction for privilege. Counsel for the claimant requests an affidavit, akin to an affidavit of production in a civil action containing a schedule B setting out the grounds for privilege attested to by the affidavit.
[3]. The issue to be decided, therefore, boils down to this: can the insurer in the circumstances of this case assert litigation privilege or solicitor client privilege over any of the requested documents and are such claims for privilege to be proved by an affidavit.
[4]. Counsel for the claimant relies on decisions of Arbitrator D Muir in Wilkerson v Allianz Insurance and Arbitrator Sandominsky in Partola v Liberty Mutual Insurance. It is trite law that administrative decisions are not subject to stare decisis. Although I should heed previous decisions of FSCO arbitrators, I am not bound by them, particularly when the circumstances do not appear to be the same as in the case before me. I have read the decisions of Arbitrator Muir and arbitrator Sandominsky, and the circumstances referred to in those decision do not appear here. The only common ground is the claim for a special award and in my view that by itself does not support the claimant’s request in this case for an affidavit of documents attesting to claims for privilege.
[5]. The applicant’s request also seems to me to be inconsistent with the simplified and streamlined procedure for the resolution of these matters through FSCO. Following a failed mediation, a claimant may choose to pursue the matter in the courts or in arbitration through FSCO. FSCO arbitration is intended to provide applicants with access to a relatively inexpensive, speedy and informal adjudication of no-fault accident benefits and part and parcel of this approach is a more limited discovery process: see Moxon v State Farm Insurance (OIC A000090, p. 20) and Campeau v Liberty Mutual FSCO A00-000522, p.27). In my view, having elected to proceed through the FSCO arbitration procedure, governed by the Dispute Resolution Practice Code, the claimant must accept the more limited scope for discovery afforded by that procedure.
[6]. It is conceded that the party asserting privilege must establish the claim for privilege. The appropriate manner for doing so is suggested by Arbitrator Wacyk in M S v York Fire and Casualty (FSCO A00-000387). Where the insurer withholds a document on the ground of privilege, insurer’s counsel shall provide a written description of the document together with the basis for the claim of privilege within 60 days of the date hereof. This will apply to any and all documents which the insurer has agreed to produce, subject to its claim for privilege.
[7]. For these reasons I decline to make the order sought by counsel for the applicant. Each party shall bear its own costs of this adjudication of the applicant’s request for production.
17 July 2013 _____________________
Patrick Schindler, arbitrator
ARBITRATION ORDER
It is ordered that within 60 days of the date hereof, the insurer shall produce copies of the adjuster’s internal email, log notes, memoranda to file and written dialogue to team members; copies of whatever letters were sent to the family of the late Mr Selvayagam enclosing the payments to which the insurer’s letter of June 20, 2012 refers; a copy of any internal insurer policy relating to that documentation that is required prior to payment of death and funeral benefits; a summary of amounts paid to date; with redactions as required to protect privilege and where the insurer withholds a document on the ground of privilege, insurer’s counsel shall provide a written description of the document together with the basis for the claim of privilege also within 60 days of the date hereof.
17 July 2013 _____________________
Patrick Schindler, arbitrator