Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 173

FSCO A14-001011

BETWEEN:

AHMAD FARHAT

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Deborah Pressman

Heard: By written submissions and teleconference on December 8, 2014 and August 25, 2015

Appearances: Pryam Varma for Mr. Farhat

Marni Miller for State Farm Mutual Automobile Insurance Company

Background:

The Applicant, Ahmad Farhat, was involved in a motor vehicle accident on June 2, 2010 and claimed benefits from his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”) pursuant to the Schedule.¹ Disputes arose between Mr. Farhat and State Farm regarding his entitlement to statutory accident benefits. The parties were unable to resolve their disputes and Mr. Farhat applied for arbitration.²

Mr. Farhat claims that, in addition to other impairments, he sustained psychological impairments as a result of the accident. He alleges that these psychological impairments caused him to commit acts of violence against his wife, resulting in a restraining order and charges of domestic assult. He also alleges that he never committed acts of domestic violence previously and had not been charged criminally prior to this accident.

Nature of Motion:

During the pre-hearing discussion, the parties were unable to agree upon the production of Mr. Farhat’s criminal record. This motion was brought by State Farm for an Order that Mr. Farhat produce his Canadian Police Information Centre (“CPIC”) record from one year prior to the accident to date.

ANALYSIS:

Subsection 15(1) of the Statutory Powers Procedure Act provides, in part, that a tribunal may admit as evidence at a hearing any document “relevant to the subject-matter of the proceeding…” [Emphasis Mine]. The Dispute Resolution Practice Code sets out, under Rule 32.2, an ongoing responsibility on the parties to exchange documents that are “reasonably necessary to determine the issues being arbitrated.” Also, under Rule 32.3 of the DRPC, an arbitrator may at any time order the production of documents considered “relevant to the determination of issues in the arbitration…” [Emphasis Mine].

Siginificantly, Mr. Farhat himself has disclosed his violent acts and criminal charges to State Farm during an examination under oath and alleges they were related to the psychological impairments caused by the accident.³ In my opinon, Mr. Farhat has made his criminal and/or violent conduct an issue in this arbitration. Therfore, the CPIC record sought by State Farm is clearly relevant to this issue in dispute and is reasonably necessary to the determination of issues being arbitrated.

I am not persuaded that State Farm’s right to access potentially relevant documentation is outweighed by special circumstances or other factors, such as sensitivity, practicality of compliance, the timing of the request and other considerations arbitrators take into account.⁴

In this case, sensitivity does not outweigh relevance and access. Productions of a sensitive nature and associated privacy concerns are not novel in the arbitration process. Applicants consistently disclose (and are compelled to disclose) medical, financial and other private and sensitive records pursuant to the DRPC and the circumstances of the case.

Furthermore, timing and compliance are not at issue. State Farm requested the record during the pre-hearing discussion. The arbitration hearing has not yet been scheduled and the hearing will not be delayed by the prodction of the document. The production is readily available to the applicant and can be easily requested by him.

I am satisfied that there is a reasonable and rational relationship between the record being sought and the issues being arbitrated. I am also satisified that State Farm has a right to sufficient disclosure to assess and prepare its case which may promote settlement and make this arbitration more efficient and fair.

I therefore order Ahmad Farhat to produce his Canadian Police Information Centre (“CPIC”) record for the period of June 3, 2009 to present.

EXPENSES:

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

August 27, 2015

Deborah Pressman

Arbitrator

Date