Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 95

FSCO A11-004375

BETWEEN:

JAHVON DINNALL

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

Before: Arbitrator Jeffrey Rogers

Heard: By telephone conference call on May 23, 2014.

Appearances: Mr. Slavko Ristich, solicitor for Mr. Dinnall

Ms. Caroline Meyer, solicitor for Economical Mutual Insurance Company

Issues:

The Applicant, Jahvon Dinnall, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, to resolve disputes that arose as a result of a motor vehicle accident on September 29, 2009. He claims entitlement to accident benefits payable by Economical Mutual Insurance Company (“Economical”) under the Schedule.¹

Mr. Dinnall is required to produce documents that are prima facie relevant and reasonably necessary to determine the issues being arbitrated.² Mr. Dinnall has produced many relevant documents. He refuses to produce further documents that Economical believes are relevant to his claim that he sustained a catastrophic impairment and his claims for non-earner benefits, attendant care benefits, and housekeeping.

Economical brought this motion seeking an order requiring production of ³:

The Police file, Crown brief and probation file regarding a robbery or other charges against Mr. Dinnall in or around July 2009.
The Police file and Crown brief regarding an assault against Mr. Dinnall in October 2011.
The Police file, Crown brief and the Ministry of Community Safety and Correctional Services incarceration and parole files, regarding charges against, and incarceration of Mr. Dinnall in 2012.
Mr. Dinnall’s complete elementary and middle school records.
The complete clinical notes and records of Mr. Dinnall’s family doctor.

Result:

Subject to his right to claim privilege with regard to any of the documents, Mr. Dinnall shall make his best efforts to produce to Economical as soon as practicable, the Police file, Crown brief and probation file regarding a robbery or other charges against him in or around July 2009.
Mr. Dinnall shall forthwith advise Economical whether there was an arrest or charges regarding the assault against him in October 2011, and shall make his best efforts to produce to Economical as soon as possible any contents of a related Police file and Crown brief to which he has access.
Subject to his right to claim privilege with regard to any of the documents, Mr. Dinnall shall make his best efforts to produce to Economical as soon as practicable, the Police file and Crown brief, and the Ministry of Community Safety and Correctional Services incarceration and parole files, regarding charges against him and his incarceration in 2012.
Mr. Dinnall is not required to produce his complete elementary and middle school records.
Mr. Dinnall is not required to produce the complete clinical notes and records of his family doctor.

EVIDENCE AND ANALYSIS:

1. The Police file, Crown brief and probation file regarding a robbery or other charges against Mr. Dinnall in or around July 2009.

I find these documents to be prima facie relevant and reasonably necessary to determine the issues being arbitrated. I reject Mr. Dinnall’s submission that he has already produced documents that paint a full picture of his pre-accident life.

Mr. Dinnall has not produced any documents regarding his involvement in the criminal justice system. Mr. Dinnall was arrested and charged a few months before the accident. These documents relate to that arrest. Mr. Dinnall was 16 years old at the time of the accident. Details regarding his pre-accident potential are critical to assessing his claim for non-earner benefits. The disputed files likely contain information that sheds light on that potential. In addition, Mr. Dinnall claims that accident-related injuries caused his post-accident involvement in the criminal justice system. The disputed files likely contain information relevant to assessing the validity of that claim.

Given the wide range of benefits at issue, Economical is not casting an overly broad net.

Since the contents of these files are not known at this time, I reserve Mr. Dinnall’s right to claim privilege with regard to any of the documents.

2. The Police file and Crown brief regarding an assault against Mr. Dinnall in October 2011

Mr. Dinnall was the victim of a vicious assault in October 2011. He claims that accident-related impairments caused him to provoke the assault. A related Police file and Crown brief would likely contain documents giving details of the circumstances of the assault. These documents would be prima facie relevant and reasonably necessary to determine the issues being arbitrated.

Although Mr. Dinnall objects to producing the files, counsel advised at the hearing that he is unaware of any related arrest or charges. If files do not exist, that would be a complete answer to Economical’s request. Since Mr. Dinnall was simply a victim, he may not have access to the files even if there was an arrest and charge.

I have therefore ordered Mr. Dinnall to clarify whether there was an arrest and charge and to make his best efforts to produce to Economical any contents of the files to which he has access.

3. The Police file, Crown brief and the Ministry of Community Safety and Correctional Services incarceration and parole files, regarding charges against, and incarceration of Mr. Dinnall in 2012.

I find these documents to be prima facie relevant and reasonably necessary to determine the issues being arbitrated.

Mr. Dinnall was incarcerated in 2012. No other information has been disclosed. His claim for non-earner benefits and a catastrophic designation will require a comparison between his pre-accident and post-accident function. His claim for ongoing attendant care and housekeeping benefits will require an assessment of his ability to complete the relevant tasks. Mr. Dinnall also claims that his post-accident behavioural issues were caused by the accident. The disputed files likely contain documents addressing his mental state, his need for assistance and his ability to function.

Since the contents of these files are not known at this time, I reserve Mr. Dinnall’s right to claim privilege with regard to any of the documents.

4. Mr. Dinnall’s complete elementary and middle school records.

The issues in arbitration will require a determination of Mr. Dinnall’s ability to function in school immediately preceding the accident.

Mr. Dinnall has produced his complete school records for the four years immediately preceding the accident. Economical seeks greater production because it has information that Mr. Dinnall was found to have a learning disability some time earlier. Counsel for Economical conceded that there is no reference to such a disability in the records already produced.

I find that Mr. Dinnall has already produced the documents that are reasonably necessary to determine his ability to function in school at the time of the accident and for a reasonable period before the accident. He is not required to produce further school records.

5. The complete clinical notes and records of Mr. Dinnall’s family doctor.

Mr. Dinnall has produced the clinical notes and records of his family doctor from 3 years prior to the accident. Economical seeks greater production in order to find the root of Mr. Dinnall’s alleged learning disability. Counsel for Economical conceded that there is no reference to such a disability in the records produced. This request is denied for the reasons I gave for denying access to further school records.

EXPENSES:

I reserve on the issue of expenses to the hearing arbitrator. If the parties resolve the dispute without a hearing, but are unable to agree on the issue of expenses of this motion, either party may request that I reconvene this hearing to resolve the issue, no later than 30 days after all other issues have been resolved.

June 11, 2014

Jeffrey Rogers

Arbitrator

Date