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

Neutral Citation: 2015 ONFSCDRS 227

FSCO A12-003684

BETWEEN:

JAMIE OAKES

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

Before: Suesan Alves, Arbitrator

Heard: By written submissions received by October 14, 2015

Appearances: Lisa Pool for Mr. Oakes Arthur R. Camporese for Gore Mutual Insurance Company

Issues:

The Applicant, Jamie Oakes, was injured in a motor vehicle accident on January 31, 1999 and claimed statutory accident benefits from Gore Mutual Insurance Company (“Gore Mutual”), payable under the Schedule.¹ At this hearing the Applicant seeks an Order adding issues to the agenda of issues to be arbitrated. He also seeks an Order for the production of the Insurer’s file from the date of the accident to the date of the Application for Mediation on April 26, 2011. The Insurer consents to the addition of some issues. The Insurer provided a consent to adding issues of non-earner benefits, retroactive attendant care and housekeeping and home maintenance benefits. However, that consent is conditional on a preliminary issue being held in advance of the hearing on substantive issues. The Insurer submits that the preliminary issue hearing can be conducted by written submissions. The Insurer seeks a production order in relation to some 26 documents and seeks a stay of the arbitration scheduled to commence on November 2, 2015, pending the production of documents by the Applicant. The Insurer says that the portion of the adjuster’s file the Applicant seeks are in storage and have not been retrieved. The Applicant submits that he is ready to proceed to the hearing.

The issues in this hearing are:

Should the issues which the Applicant seeks to add be added to the agenda of issues to be arbitrated?
Should the preliminary issue which the Insurer seeks to add be added to the agenda of issues to be arbitrated? If yes, should it be the subject of a separate hearing?
Should there be an Order for the productions requested by the Applicant?
Should there be an Order for the productions requested by the Insurer? If yes, should the hearing be stayed?

Result:

The issues which the Applicant seeks to add are added to the agenda of issues to be arbitrated.
The preliminary issue which the Insurer seeks to add is added to the agenda of issues to be arbitrated. It should not be the subject of a separate hearing.
An Order for productions requested by the Applicant is granted.
An Order for the productions requested by the Insurer is granted. The hearing is adjourned on terms.

EVIDENCE AND ANALYSIS:

The issues to be arbitrated:

At the initial prehearing in July 2013, the issues to be arbitrated were identified and agreed to as claims for a rehabilitation benefit of $68,563.72, for attendant care benefits from April 27, 2009, interest and both parties’ claims for expenses.

Subsequently counsel for the Applicant requested the addition of issues on August 20, 2014 June 10, 2015 and August 12, 2015. There was no response by counsel for the Insurer. Counsel for the Applicant requested a resumption of the pre-hearing for an Order adding the issues. Efforts to schedule that resumption were unsuccessful and I asked the parties to provide written submissions.

On October 1, 2015, counsel for the Insurer advised that he consented to the addition of the issues which were the subject of the Reports of Mediator dated July 24, 2014 and August 11, 2015. At the initial prehearing in July 2013, the issues to be arbitrated were identified and agreed to as claims for a rehabilitation benefit of $68,563.72, for attendant care benefits from April 27, 2009, interest and both parties’ claims for expenses.

With respect to the issues of housekeeping benefits and non-earner benefits, counsel for the Insurer consents to their addition, provided a preliminary issue hearing is scheduled to address the exclusion defence raised by section 30(1)(b) of the Schedule. This is the first occasion on which the Insurer has raised the preliminary issue before me.

The section 30 (1)(b) exclusion

Mr. Oakes claims non-earner benefits and housekeeping and home maintenance benefits. Section 30(1)(b) of the Schedule states that an insurer is not required to pay these benefits to a driver of an automobile at the time of the accident if the driver was driving the automobile without a valid driver’s licence.

The parties agree on the relevant facts which give rise to this issue. They agree that at the time of the accident Mr. Oakes was aged 15, and that the accident took place on private property while Mr. Oakes was operating a snowmobile.

Counsel for the Insurer submits that the issue should be hived off. If the Insurer succeeds, Gore Mutual will not be required to pay Mr. Oakes’ claims for non-earner benefits and housekeeping and home maintenance benefits, the evidence to be called in relation to those claims will be unnecessary, saving both parties expense and avoiding inconvenience to witnesses.

Counsel for the Applicant submits that this is a legal issue which can be determined as part of the main hearing.

I agree that the determination of whether the exclusion applies is a matter of statutory interpretation. I also agree that Gore Mutual should be permitted to raise the section 30(1)(b) exclusion. However, I am not persuaded that it should be scheduled as a hived off preliminary issue hearing. Instead, the issue should be added and heard with the remaining issues at one hearing.

In this case, even if the Insurer succeeds on the preliminary issue hearing and Mr. Oakes is excluded from receiving non-earner benefits and housekeeping benefits, the evidence to be called in relation to the claim for attendant care benefits would still be called. That evidence overlaps to a significant degree with the evidence which would be called in relation to the entitlement to the non-earner benefits and the housekeeping and home maintenance benefits. Thus, there would be no saving of resources by having a separate preliminary issue hearing.

Instead, this additional step would delay the adjudication of entitlement to other benefits as there would be two hearings and the parties would wait for two decisions. In my view, adding all the issues and scheduling them to be heard at one hearing is likely to result in the quickest and least expensive resolution of the dispute. For these reasons, I am not persuaded that the section 30(1)(b) exclusion question should be heard separately from the substantive issues.

The issues to be arbitrated are set out in the Order, below.

Production issues

(a) The Applicant’s requests

Counsel for the Applicant seeks an Order that within five days, the Insurer shall provide all adjusting notes/log notes from January 31, 1999 up to April 26, 2011 (the date of the first Application for Mediation), subject to redactions for reserves.

Counsel for the Applicant advises that she made requests for this file on January 7, 2015, February 27, 2015, May 7, 2015 and May 20, 2015. In her submission she states “Although we have been advised that Mr. Camporese has the log notes and will provide them up to the date of the Application for Mediation (subject to redactions for reserves), we still have not received the log notes.”

In his submissions, counsel for the Insurer states “With respect to the log notes, there has been considerable delay in producing same as my client has been searching its storage facility in an effort to locate same. While I did indeed indicate that I was in possession of same, having now reviewed the log notes, I can advise that all of the available log notes post-date the first Application for Mediation. Given that the subject accident occurred in 1999, all prior log notes were handwritten (pre electronic system) and my client’s attempts to locate any earlier notes have been unsuccessful despite my client’s best efforts.”

The documents the Applicant seeks are relevant to the issues in dispute. The adjuster’s file is routinely produced from the date of the accident to the date of the application for mediation, subject to submissions as to why the period should be expanded or reduced.

Affidavits of Documents are not a routine feature of the documentary discovery process at the Financial Services Commission of Ontario.

In Dyczok and Wawanesa Mutual Insurance Company Mutual Insurance Company (FSCO A02-000766, October 14, 2003), Arbitrator Blackman ordered the Insurer to create an Affidavit of Documents because the circumstances were sufficiently unusual that such an Order was warranted. In my view, the advice, as well as the timing of the advice, that the portion of the file which the Applicant seeks was placed in storage and has not been retrieved, is sufficiently unusual that it is appropriate to require Gore Mutual to create an Affidavit of Documents, as detailed in the Order, below.

(b) The Insurer’s Requests

Counsel for the Insurer initially requested 24 productions of the Applicant in January 2014. Counsel for the Applicant responded to that request. She divided the requests into three categories — those that she agreed were relevant and would obtain, provided counsel for the Insurer confirmed that the Insurer would reimburse the firm for the expense; those that she refused to produce on the basis that they were not relevant; and those that were not relevant, but which she was willing to produce on the following basis. She was prepared to have her client sign authorizations drafted by counsel for the Insurer, permitting him to obtain the documents and provide her with copies of the documents obtained pursuant to the authorizations.

Counsel for the Applicant advises that the Insurer did not respond. There was no confirmation that the Insurer would reimburse the Applicant for the expenses; there was no request for a ruling on the refusals; and no authorizations provided by the Insurer for her client’s signature.

On October 1, 2015, in response to the Applicant’s requests for an order in relation to the log notes and for an order adding issues mediated in 2014 and 2015, counsel for the Insurer requested the production of 26 documents. While the documents requested in October 2015 are listed in a different order from the 2014 request, most of them are identical to the documents requested in January 2014.

While the documents requested by the Insurer may not have been relevant to the initial issues to be arbitrated, I find that most are relevant to the issues which have been added, particularly the ongoing claims for non-earner benefits and for attendant care. Some of the records appear to relate to treatment, provided in relation to a brain injury and to chronic pain.

Counsel for the Insurer submits that it would be unfair to force the Insurer to a hearing dealing with retroactive attendant care and non-earner benefits without these records because they detail the client’s attendant care requirements over time. I am not persuaded that the fault lies with the Applicant.

The first difficulty I have with this submission is the inaction on the Insurer’s part in the face of refusals. The Applicant was prepared to co-operate and permit the Insurer to obtain records even those which his counsel viewed as irrelevant. The second difficulty is that the Applicant appears to be ready to proceed with the hearing. The hearing has been adjourned once on consent due to the unavailability of witnesses and as the Applicant had additional issues to be mediated which he intended to add to the agenda of issues to be arbitrated.

The Insurer seeks a stay of the arbitration pending production by the Applicant of the records it requested. I am prepared to grant the Insurer a brief adjournment for the sole purpose of obtaining the records it requested on October 1, 2015 in a timely fashion without causing the Applicant undue prejudice. If the Applicant has obtained the requested records, they should be produced at the Insurer’s expense.

My concern is for a hearing in which both parties will be able to participate. My intention is to temper the impact on the Insurer of its own inaction. I accept that all of the productions may not be obtained during the adjournment. My hope is that the productions which are obtained may result in settlement, failing which a more considered hearing may result.

The adjournment will be on terms. Counsel for the Insurer should move swiftly to obtain the requested records. Counsel should agree to a new hearing date. Failing agreement, the new hearing should be scheduled to start by January 26, 2015. The Insurer will pay the Applicant’s costs thrown away. Further details are set out in the Order, below.

EXPENSES

I exercise my discretion to award the Applicant his expenses of this hearing due to the Insurer’s delays in responding to the Applicant’s requests to add issues and its inaction in relation to its own production requests.

October 30, 2015

Suesan Alves Arbitrator

Date

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

Neutral Citation: 2015 ONFSCDRS 227

FSCO A12-003684

BETWEEN:

JAMIE OAKES

Applicant

and

GORE MUTUAL 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:

A. The issues to be arbitrated are the following:

The parties agree that at the time of the accident Mr. Oakes was aged 15 and drove a snowmobile on private property without a valid driver’s licence. Does the exclusion provided in section 30(1(b) of the Schedule operate in these circumstances, so that Gore Mutual is not required to pay Mr. Oakes’ claims for non-earner benefits and housekeeping and home maintenance benefits?
Is Mr. Oakes entitled to non-earner benefits from 27 weeks following the accident, ongoing?
Is Mr. Oakes entitled to monthly attendant care benefits at various rates from January 31,1999, ongoing, as follows:

(i) $5,964.83 between January 31, 1999 and April 30, 1999,

(ii) $5,497.20 between May 1999 and June 3, 1999,

(iii) $5,595.31 between June 4, 1999 and March 31, 2000,

(iv) $1,493.18 between April 1, 2000 and April 11, 2009,

(v) $712.73 between April 12, 2009 and February 19, 2013, and

(vi) $715.25 from February 20, 2013 ongoing

Is Mr. Oakes entitled to receive a medical benefit for occupational therapy services in the amount of $4,128.15; $6,190.27 for assistive devices and education services; $7,337.32 for cell phone services and a taxi for work?
Is Mr. Oakes entitled to receive a rehabilitation benefit of $68,563.72 for the cost difference between homes and moving expenses, $941.92 for taxi services, submitted on March 12, 2015; and $240.24 for snow blower servicing, submitted March 12, 2015?
Is Mr. Oakes entitled to housekeeping and home maintenance benefits of $50 per week from January 31, 1999 ongoing?
Is Mr. Oakes entitled to interest for the overdue payment of benefits?
Is Gore Mutual liable to pay a special award pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed benefit payments?
Which party is liable to pay the other’s claims for expenses?

B. The production Order with respect to the Applicant’s request is as follows:

Gore Mutual shall by November 12, 2015 serve on Ms. Pool and file with the Financial Services Commission of Ontario, an Affidavit of Documents pertaining to the accident benefits file arising from Mr. Oakes’ January 31, 1999 motor vehicle accident, sworn by a person in authority at Gore Mutual who might reasonably be expected to have knowledge of the transactions or occurrences in issue, setting out:

(a) confirmation that:

(i) the deponent has conducted a diligent search of Gore Mutual’s records and has made appropriate enquiries of others to inform herself or himself in order to make such affidavit; and that

(ii) the affidavit discloses, to the full extent of the deponent’s knowledge, information and belief, all documents relating to the accident benefits file herein that are or have been in Gore Mutual’s possession, control or power, excluding documents which are in the exclusive control of its counsel and which counsel has not shared with or communicated to Gore Mutual.

(b) in Schedule “A,” by consecutively numbered document, every document and every dated log or computer entry in Gore Mutual’s possession, power or control which was created or came into existence on or before April 26, 2011, the date of the first Application for Mediation. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document. Gore Mutual shall further provide sworn confirmation that every document listed therein has been provided to Ms. Pool or shall forthwith provide to Ms. Pool any document so listed which has not been provided, together with an explanation as to why the document had not yet been served.

(c) in Schedule “B,” by consecutively numbered document, every document and every dated log or computer entry in Gore Mutual’s possession, power or control which was created or came into existence on or before April 26, 2011 which Gore Mutual objects to producing to Ms. Pool. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document. Gore Mutual shall, for each listed document, articulate and particularize the full grounds for its objection to producing the document.

(d) in Schedule “C,” by consecutively numbered document, every document and every dated log or computer entry in Gore Mutual’s possession, power or control which was created or came into existence after January 31, 1999 that was formerly in Gore Mutual’s possession, control or power, but is no longer in its possession, control or power, whether or not any other objection to production is made, together with a statement of when and how the party lost possession or control of or power over the document and its present location. Each item shall have sufficient particulars to identify the document, including, but not necessarily limited to, the type and function of the document, its date, and the role and status of the receiver and sender (or creator) of the document.

(e) a statement that Gore Mutual has never had in its possession, control or power any document relating to its accident benefits file arising from Mr. Oakes’ motor vehicle accident of January 31, 1999 other than those listed in the affidavit, excluding documents which are in the exclusive control of its counsel and which counsel has not shared with or communicated to Gore Mutual.

(f) a certificate signed by a lawyer that he or she has explained to the deponent the necessity of making full disclosure of all documents relating to its accident benefits file arising from Mr. Oakes’ January 31, 1999 motor vehicle accident.

In the event of a dispute as to whether a document shall be produced I will determine the dispute.

C. The Order with respect to the Insurer’s production request is:

Gore Mutual will provide counsel for the Applicant with authorizations in suitable form for the productions outlined in the Insurer’s submission of October 1, 2015 within 7 days. Counsel for the Applicant will return authorizations signed by Mr. Oakes within a further 7 days. Counsel for the Insurer will request the documents and provide copies of the documents obtained pursuant to the authorizations within 7 days of receiving them.

D. The Order with respect to the request to stay the hearing is:

The hearing scheduled to commence November 2, 2015 is adjourned. Counsel should arrange a brief teleconference resumption of the pre-hearing to fix a hearing date and resolve any production disputes in relation to the Insurer’s file. Failing agreement by both parties, the hearing will be rescheduled to commence no later than January 26, 2016.

E. Gore Mutual shall pay the Applicant’s expenses of this motion and costs thrown away when requested. If there is a dispute as to the amount, I will determine the dispute.