Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 16

FSCO A12-004383

BETWEEN:

KYLE NICHOLSON

Applicant

and

CERTAS DIRECT INSURANCE COMPANY

Insurer

MOTION FOR PRODUCTION

Before: Stuart J. Mutch

Heard: January 23, 2015, at the offices of the Financial Services Commission of Ontario

Appearances: Mr. Phil Isabella for Mr. Nicholson Ms. Cassandra Kleinman for Certas Direct Insurance Company No one appearing for the Ministry of the Attorney General

Issues:

The Applicant, Kyle Nicholson, alleges that he was injured in a motor vehicle accident that took place on August 21, 2010. Disputes arose between Mr. Nicholson and his insurer, Certas Direct Insurance Company (“Certas”), concerning his entitlement to accident benefits payable under the Schedule¹ and Mr. Nicholson applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.²

Certas brought a motion returnable on December 12, 2014 for production of documents in the possession of the Ministry of the Attorney General (Ontario). That motion was adjourned to today’s date.

At the hearing of the motion today, Ms. Kleinman produced the written consent of the Attorney General for Ontario (“the Attorney General”) to a production order as follows:

1. The Attorney General shall produce to counsel for Certas copies of the following documents, subject to the applicable terms and conditions set out below:

a) With regard to Peel Regional Police Occurrence #2010-148996:

i) Motor Vehicle Accident Report

ii) Occurrence Details

iii) Occurrence Summary

iv) Police Officer Notes

b) With regard to Peel Regional Police Occurrence #2010-149022:

i) DVD statements of Awil Abdi (transcripts)

ii) DVD statements of Ali Mir (transcript)

iii) DVD statements of Hussein Mohamedbhai (transcript)

iv) DVD statements of Rahul Salwan (transcript)

2. The Attorney General shall produce the above documents to counsel for Certas within thirty (30) days of the receipt of an Order by the Ministry of the Attorney General.

3. Production of documents pursuant to the Order shall be subject to the following conditions:

a) All documents shall only be used and disclosed by the parties and their counsel for the purposes of this arbitration proceeding; and

b) The parties and their counsel shall not disclose the documents produced or copied or any information contained therein, to any other person, except as provided for in subparagraph 3(a) above.

c) The documents shall be screened and redacted to remove the following information:

i) Police identifier codes

ii) Unrelated incidents

iii) Third party (non-witness) names and contact information

4. If the Attorney General locates additional documents that are not listed in paragraph 1 above, the Attorney General shall screen such documents and the documents shall be dealt as follows:

a) If the Attorney General determines that no redactions or severances are required from the document(s) a copy of the documents shall be produced to counsel for Certas.

b) If the Attorney General determines that the documents contain information that should not be produced:

i) In the case of paper documents, the Attorney General shall redact the information and produce the redacted document to counsel for Certas:

ii) In the case of audio-visual documents, counsel for Certas may within sixty (60) days of being advised that redactions are required, and upon agreeing to pay the cost of transcription, request a copy of a transcript of such documents, redacted as determined necessary by the Attorney General, and the Attorney General shall produce this redacted transcript to counsel for Certas within 30 days of the date of payment of the transcription invoice by Certas.

c) If the Attorney-General determines that production of the additional documents(s) would not be in the public interest, the Attorney General may refuse production of such documents; and

d) Certas may return this motion for argument on thirty (30) days’ notice if it objects to the redactions of the refusals provided for in subparagraphs (b) and (c).

5. Certas shall pay to the Peel Regional Police the reasonable costs associated with assembling and producing the documents in relation to occurrence #2010-148996 pursuant to the Order.

6. Certas shall pay the reasonable costs incurred by the Attorney General in the course of screening and producing documents pursuant to the Order.

7. There shall be no costs of this motion as against the Peel Regional Police or the Attorney General.

Mr. Nicholson’s counsel takes no position with regard to this motion.

Rule 67.7 of the Dispute Resolution Practice Code states:

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.

I understand that the Attorney General required an Order, either by a court or by this tribunal in order to produce the documents. As the order is on consent, I am satisfied that requirements (a), (b) and (c) above have been fulfilled. Having read the affidavit of Peter Koroloff, at Tab 2 of Certas’ motion record, I am satisfied that the documents are reasonably required to ensure a just and fair hearing.

January 29, 2015

Stuart J. Mutch

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 16

FSCO A12-004383

BETWEEN:

KYLE NICHOLSON

Applicant

and

CERTAS DIRECT 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. The Attorney General shall produce to counsel for Certas copies of the following documents, subject to the applicable terms and conditions set out below:

(a) With regard to Peel Regional Police Occurrence #2010-148996:

i) Motor Vehicle Accident Report

ii) Occurrence Details

iii) Occurrence Summary

iv) Police Officer Notes

(b) With regard to Peel Regional Police Occurrence #2010-149022:

i) DVD statements of Awil Abdi (transcripts)

ii) DVD statements of Ali Mir (transcript)

iii) DVD statements of Hussein Mohamedbhai (transcript)

iv) DVD statements of Rahul Salwan (transcript)

2. The Attorney General shall produce the above documents to counsel for Certas within thirty (30) days of the receipt by the Ministry of the Attorney General a copy of this Order.

3. Production of documents pursuant to the Order shall be subject to the following conditions:

(a) All documents shall only be used and disclosed by the parties and their counsel for the purposes of this arbitration proceeding; and

(b) The parties and their counsel shall not disclose the documents produced or copied or any information contained therein, to any other person, except as provided for in subparagraph 3(a) above.

(c) The documents shall be screened and redacted to remove the following information:

i) Police identifier codes

ii) Unrelated incidents

iii) Third party (non-witness) names and contact information

4. If the Attorney General locates additional documents that are not listed in paragraph 1 above, the Attorney General shall screen such documents and the documents shall be dealt as follows:

(a) If the Attorney General determines that no redactions or severances are required from the document(s) a copy of the documents shall be produced to counsel for Certas.

(b) If the Attorney General determines that the documents contain information that should not be produced:

i) In the case of paper documents, the Attorney General shall redact the information and produce the redacted document to counsel for Certas:

ii) In the case of audio-visual documents, counsel for Certas may within sixty (60) days of being advised that redactions are required, and upon agreeing to pay the cost of transcription, request a copy of a transcript of such documents, redacted as determined necessary by the Attorney General, and the Attorney General shall produce this redacted transcript to counsel for Certas within 30 days of the date of payment of the transcription invoice by Certas.

(c) If the Attorney-General determines that production of the additional documents(s) would not be in the public interest, the Attorney General may refuse production of such documents; and

(d) Certas may return this motion for argument on thirty (30) days’ notice if it objects to the redactions of the refusals provided for in subparagraphs (b) and (c).

5. Certas shall pay to the Peel Regional Police the reasonable costs associated with assembling and producing the documents in relation to occurrence #2010-148996 pursuant to the Order.

6. Certas shall pay the reasonable costs incurred by the Attorney General in the course of screening and producing documents pursuant to the Order.

7. There shall be no costs of this motion as against the Peel Regional Police or the Attorney General.

January 29, 2015

Stuart J. Mutch

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2R.S.O. 1990, c.I.8, as amended.