Muirhead v. Dominion of Canada General Insurance Company, 2015 ONFSCDRS 136

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 136

FSCO A11-004232

BETWEEN:

WYATT MUIRHEAD

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION ON A MOTION

Before: Arbitrator John Wilson

Heard: July 25, 2014, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Robert Ben for Mr. Muirhead Anna-Marie Musson for Dominion of Canada General Insurance Company No-one appearing for the Ontario Provincial Police or the Ontario Ministry of the Attorney General

Issues:

The Applicant, Wyatt Muirhead, was injured in a motor vehicle accident on September 17, 2010. There is no dispute that Mr. Muirhead was a passenger on an ATV which collided with a Dodge Caravan on Highway 7 near Marmora, Ontario. Neither Mr. Muirhead nor the driver of the ATV was the owner of the ATV involved in the accident.

Mr. Muirhead applied for statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ Dominion declined to pay certain benefits based on its understanding that Mr. Muirhead ought to have been aware that the driver was operating a motor vehicle without the consent of its owner at the time of the accident.

The parties were unable to resolve their disputes through mediation, and Mr. Muirhead applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Should the Ontario Provincial Police be required to release its files concerning their investigation into the events of September 17, 2010?

Result:

1. The Ontario Provincial Police is required to release its files concerning their investigation into the events of September 17, 2010.

EVIDENCE AND ANALYSIS:

This motion was brought on July 25, 2014 with the order issued on the same date. The following are the reasons for that order.

Mr. Muirhead was involved in a terrible accident while riding as a passenger in a motorized vehicle (ATV) of which he was not the owner. There is no dispute that, due to his significant injuries, Mr. Muirhead has no recall of the circumstances surrounding the accident or its immediate aftermath. As well, the person said to be the operator of the ATV is deceased.

Because the actual owner of the ATV has subsequently disavowed any permission to Mr. Muirhead or the driver to use the ATV, the entitlement of Mr. Muirhead to certain accident benefits has been called into question.

Section 31(a)(iv) of the Schedule provides that specified benefits are not payable where “the driver knew or ought to have reasonably known that he or she was operating the vehicle without the owner’s consent.” Section 31(c) extends this provision to “an occupant of an automobile at the time of the accident who knew or ought reasonably to have known that the driver was operating the automobile without the owner’s consent.”

It is common ground that the Ontario Provincial Police investigated the accident and the surrounding circumstances, and as part of their investigation obtained information relevant to the issue of whether the driver of the ATV was driving without the owner’s permission and if so, whether or not Mr. Muirhead should have known that he was driving without permission.

Indeed, counsel for Mr. Muirhead has already obtained copies of the file in the context of the tort claim by reason of an order made by the Honourable Justice D. Gonsulus on October 13, 2013. However due to the deemed undertaking rule, Mr. Muirhead is unable to either reveal or use information or documents obtained in the tort action without the consent of the maker of the documents, in this case the Ontario Provincial Police. The OPP has specifically declined to consent to the release of the documents for use in this accident benefit dispute.

Consequently, with the approval of Dominion, counsel for Mr. Muirhead brought this motion for the production of the OPP investigation file for use in the accident benefits arbitration.

But for the nature of the documents, and the deemed undertaking, the OPP file would have been part of the normal exchange of documents prior to the hearing.

Such normal procedures are covered by the Dispute Resolution Practice Code which provides at Rule 32 for the exchange of relevant documents:

EXCHANGE OF DOCUMENTS BEFORE PRE-HEARING 32.1 At least 10 days before the pre-hearing discussion, each party must:

(a) exchange all documents identified in the Application for Arbitration and the Response by Insurer, or explain why a document has not been provided;

(b) establish reasonable time frames for the exchange of any remaining documents;

(c) file the key documents the pre-hearing arbitrator will require to understand the issues in dispute;

(d) file a list of outstanding document requests and identify any disputed items.

32.2 Subject to the time lines under Rule 39, the parties have an ongoing responsibility to ensure the prompt and complete exchange of documents that are reasonably necessary to determine the issues being arbitrated, including updates to the information previously exchanged and any additional documents obtained.

32.3 Subject to Rule 39, an arbitrator may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate.

I accept that, given the circumstances of this case, and the nature of the evidence generally assembled in a police investigation, the documents contained in the police file would otherwise be relevant and producible in this arbitration.

However, in this accident benefits case, (rather than the related tort matter) Mr. Muirhead has neither the possession of nor control of the contents of any police or crown information related to the tragedy. Control of the requested documents rests clearly with the OPP and if there is a crown brief in existence, with the Ministry of the Attorney General, both non-parties in this arbitration.

The Code also provides for motions to obtain relevant documents from third parties:

67.7 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.

While the Code in general requires giving notice to third parties having control of relevant documents, according to the courts, further safeguards are required where the documents in question form part of police records or the crown briefs used in criminal matters. One of these pre-conditions is the consent of the police or the Attorney general as the case may be.

The alternative to consent is an order of a judge of competent jurisdiction.

Section 22 of the Insurance Act provides the legislative foundation for the powers of arbitrators to compel the production of documents:

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions.

Since pursuant to this section, an arbitrator exercises the powers of a superior court judge in enforcing the production of documents, I accept that a production order made by an arbitrator has the same weight as a court order in this case and that a FSCO arbitrator can properly make a production order against the police and the Attorney General, (a Wagg order).

Such has certainly been the approach taken by labour arbitrators who operate with authority similar to that granted by Section 22 of the Insurance Act. (see York Region District School Board v. Ontario Secondary School Teacher’s Federation [2015] O.L.A.A. No 165)

However, procedural limitations on the discovery of certain sensitive documents that are acknowledged by the courts also bind FSCO arbitrators. An arbitrator clearly cannot go beyond the powers vested in the Superior Courts when ordering productions, and must respect the protocols set out by the courts for the production of crown briefs and police files.

The courts have consistently found that public policy requires that the sensitive information such as the identity of police informers whose information might be contained in a crown brief, should not be readily available to the general public.

The leading case involving the production of police records and crown briefs is D.P. v. Wagg, (2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229) a decision of the Court of Appeal for Ontario.

In addressing the issue of the production of sensitive third party documents such as Crown briefs, the courts and tribunals have taken the position that one cannot count on the interests of a party litigant having access to sensitive information being congruent with the public interest in sensitive police or prosecutorial information. Consequently they have added further steps in the process.

In Wagg, the Court of Appeal set out a road map for balancing the public and private interests at play in the disclosure of information contained in a police file or crown brief. The decision arose as a result of a ruling by Juriansz J. (as he then was) at first instance that the Crown brief in a related criminal matter had to be produced in a civil matter involving a physician and his former patient. (2001 CanLII 28033 (ON SC), 52 O.R.3d 625) Although the result of the decision; the recognition of the potential availability of sensitive government documents such as Crown briefs for production in civil cases was accepted, the reviewing courts on appeal took issue with the manner in which he arrived at the production order.

The Divisional Court (2002 CanLII 23611 (ON SCDC), 2002 O.J. No. 3808) took a different approach from Jurianz J. and found that production should not be compelled until the appropriate agencies, such as the Crown, the Attorney General or the police, as the case may be, can be given an opportunity to assess the public interest consequences involved to the plaintiff. An order should not be granted without that pre-condition merely because the contents are relevant.

For the Divisional Court either a court order or the consent of the all parties (including the state actors) must be obtained. In essence the process described by the Divisional Court was a screening mechanism to take into account public interests that may not be represented by the parties to the litigation.

The court also took notice of issues such as the privacy interests of non-parties identified in such documents and the need to respect the policy reasons behind the implied undertaking rule. (see Taylor v. Director of the Serious Fraud Office [1998] H.L.J. No. 38.

The Court of Appeal in its review of Wagg agreed that a crown brief or police report must be disclosed in a party’s affidavit of documents but that the documents should be screened by the relevant state agency and the presiding judge to balance public interest considerations including the policy favouring full disclosure and production in civil procedures.

Rosenburg J.A. summarized the process as follows:

The party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

The party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced.

The judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally “whether there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information.

In the context of this accident benefit arbitration, what does this mean?

Both Mr. Muirhead and Dominion want access to the police materials, since they appear to be the only roughly contemporaneous attempt to piece together an account of the events of September 17, 2010.

No-one doubts that the records would be relevant since presumably the materials would include lists of potential witnesses together with witness statements that appear to be otherwise unattainable.

The documents are already in the hands of counsel for Mr. Muirhead, but because of the implied undertaking rule and the refusal of the OPP to consent, they can only be used in this context with a court or arbitral order.

The Ontario Provincial Police and the Ontario Ministry of the Attorney General have been duly put on notice and served with the motion materials. Their absence from the hearing of this motion suggests that there are no overarching public interests in the documents that would be harmed by their disclosure in the context of this accident benefit arbitration. Nor has there been any suggestion that other privacy issues may need protection.

The ultimate protection identified by the Court of Appeal in Wagg provided for the documents to be delivered to the judge for a final vetting before release to the parties. In this matter, given that the documents are already in the hands of counsel (but without the right to use or share them in the context of this arbitration), and the failure of either the Attorney General or the OPP to appear on this matter, such final vetting by me would be both redundant and wasteful of time and energy. Indeed the documents have already been subject to the judicial vetting process in the context of the related tort action.

Consequently I find that, once produced, the documents can be provided directly to counsel for Mr. Muirhead, who will, of course, provide copies to the Insurer.

Consequently the Ontario Provincial Police shall provide a complete and un-redacted copy of the police investigation file pertaining to the motor vehicle accident on September 17, 2010, in accordance with my order issued on Friday July 25, 2014.

EXPENSES:

No expenses were requested and none is appropriate in this motion.

June 26, 2015

John Wilson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.