Neutral Citation: 2014 ONFSCDRS 28 FSCO A11-003100

BETWEEN:

MOLLY PAUL Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Stuart J. Mutch Heard: February 10, 2014 at the offices of the Financial Services Commission of Ontario Appearances: Mr. Arvin Gupta for Ms. Paul Mr. Thelson Desamour for TD General Insurance Company

Issues:

The Applicant, Molly Paul was injured in a motor vehicle accident on September 21, 2009. Ms. Paul claims entitlement to benefits under the Schedule.¹ TD General Insurance Company (“TD”) disputed her claims and the parties were unable to resolve their disputes through mediation. Ms. Paul applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was held on December 12, 2012. At that time the parties agreed to confirm production requests and undertakings within 30 days of the pre-hearing and to complete production exchange (or provide proof of best efforts to comply) or otherwise identify any production disputes within 60 days of the pre-hearing.

On December 13, 2013, TD brought Notices of Motion for production of the following:

A copy of the clinical notes and records held by Healthworks Medical Centre and Dr. Jamie Devassy in relation to the Applicant, Molly Paul
A copy of the clinical notes and records held by Regency Rehab and Wellness Centre and Dr. Antoniazzi in relation to the Applicant, Molly Paul
A copy of the clinical notes and records held by Maple Health Clinic in relation to the Applicant, Molly Paul

The issues in this motion are:

Should the above-noted treatment providers be required to produce copies of the clinical notes and records relating to the Applicant, Molly Paul?
Is TD entitled to its expenses of the motion?

Result:

Healthworks Medical Centre and Dr. Jamie Devassy are required to provide copies of the clinical notes and records with regard to Molly Paul to her counsel and to counsel for TD forthwith.
Maple Health Clinic is required to provide copies of the clinical notes and records with regard to Molly Paul to her counsel and to counsel for TD forthwith.
Healthworks Medical Centre is required to pay expenses to TD in the amount of $150.00.
Maple Health Centre is required to pay expenses to TD in the amount of $150.00.

ANALYSIS:

Counsel for TD advised that he has been supplied with the requested productions from Regency Rehab and Wellness Centre and he was therefore withdrawing his request for an order for production from Regency.

Healthworks Medical Centre/Dr. Devassy (“Healthworks”), and Maple Health Clinic (“Maple”) appear to have been properly served on December 13, 2013 by facsimile transmission. There was no response by either of the parties in the form of written submissions or appearances.

I was advised that the requested productions were part of the production request referred to in the pre-hearing letter. I was supplied with a copy of a letter from counsel for Ms. Paul, addressed to counsel for TD, confirming that he had requested production from Healthworks on April 25, 2013 and June 13, 2013 and from Maple on October 15, October 29, and November 5, 2013. It appears that counsel for Ms. Paul made repeated and timely efforts to obtain these documents and that Healthworks and Maple have not co-operated.

Rule 67.7 of the Dispute Resolution Practice Code provides:

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; (c) the third party has had a reasonable opportunity to respond; (d) the document is reasonably required to ensure a just and fair hearing.

In my view, all of these criteria have been satisfied. Counsel for Ms. Paul has made several requests for these documents over the course of last year and this motion was served on Healthworks and Maple almost two months ago. They have had more than a reasonable opportunity to respond. There is no reason to think that these documents are not in the possession of the third parties.

It is appropriate that TD has the requested records in order to assess the progress of Ms. Paul’s recovery and to access their potential liability to pay her claimed benefits under the Schedule. These documents are reasonably required to ensure a just and fair hearing. I therefore order the production of the requested documents and that Healthworks and Maple supply copies of the documents to counsel for Ms. Paul and counsel for TD forthwith.

EXPENSES

Counsel for TD asked for its expenses in the bringing of this motion.

Section 12(2) of O.Reg 664 provides:

(2) An arbitrator shall, under subsection 282 (11) of the Act, consider only the following criteria for the purposes of awarding all or part of the expenses incurred in respect of an arbitration proceeding:

Each party’s degree of success in the outcome of the proceeding.
Any written offers to settle made in accordance with subsection (3).
Whether novel issues are raised in the proceeding.
The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.
Whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation.
Whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation. O. Reg. 275/03, s. 4; O. Reg. 548/05, s. 1; O. Reg. 36/10, s. 2.

TD was successful in this motion. As well, Healthworks and Maple’s failure to respond to these requests, could ultimately have the effect of prolonging this proceeding.

Healthworks and Maple are respectively required to pay expenses of $150.00 to TD forthwith.

February 14, 2014

Stuart J. Mutch Arbitrator

Date

Financial Services Commission of Ontario