Sabrina Phillips v. Unica Insurance Inc., 2015 ONFSCDRS 30

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 30

FSCO A13-009875

BETWEEN:

SABRINA PHILLIPS

Applicant

and

UNICA INSURANCE INC.

Insurer

DECISION ON A MOTION

Before: Isoken Osunde

Heard: November 28, 2014 at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Supriya Sharma for Ms. Phillips

Guy Kartuz for Unica Insurance Inc.

Issues:

The Applicant, Sabrina Phillips, was injured in a motor vehicle accident on December 3, 2011. She applied for and received statutory accident benefits from Unica Insurance Inc. (“Unica”), payable under the Schedule.¹ A dispute arose between the parties which they were unable to resolve through mediation. Ms. Phillips applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

ISSUE:

Should Ms. Phillips be compelled to produce her cell phone records for December 3, 2011?
Which party is entitled to expenses?

Result:

Ms. Phillips is not required to produce her cell phone records for December 3, 2011.
The expenses of the motion are left to the discretion of the hearing Arbitrator.

BACKGROUND:

Ms. Phillips filed an application for Arbitration dated August 8, 2013 claiming entitlement to certain accident benefits under the Schedule. Following a pre–hearing held on May 13, 2014, Unica brought this motion to compel productions.

EVIDENCE AND ANALYSIS:

At an Examination Under Oath conducted on May 16, 2013, Ms. Phillips stated that on December 3, 2011, she was called on her cell phone by a man named Anthony Johnson around 4:00 a.m. According to Ms. Phillips, Mr. Johnson called to request a ride along with two of his friends. Ms. Philips was not familiar with these friends.

Ms. Phillips’ testimony is that she proceeded to give Mr. Johnson and his friends a ride and the motor vehicle accident, which is the subject of the dispute at the Arbitration hearing in this case, occurred during this trip.

An accident reconstruction investigation report dated February 22, 2012² revealed certain conclusions which indicated that some of the damages claimed by Ms. Phillips, as related to the loss, were not likely related to the accident. Ms. Phillips testified at the Examination Under Oath that it was related and undertook to provide Mr. Johnson’s contact details in order for her story to be corroborated.

Ms. Phillips subsequently advised that she could not locate Mr. Johnson’s details.

Unica’s position is that the circumstances surrounding the loss in terms of where Ms. Phillips was going, with whom she was travelling, where the loss occurred and the nature of her relationship with the occupants of her vehicle are not clear and the evidence provided as to the same is inconsistent.³ Therefore, Ms. Phillips’ cell phone records would assist Unica with locating Mr. Johnson to clarify the discrepancies.

Ms. Phillips’ position is that Unica does not dispute that the accident in fact occurred. In addition, there is no allegation of fraud. Therefore the cell phone records are not relevant. Ms. Phillips further posits that to order the production of the cell phone records would amount to an invasion of her privacy.

For the reasons that follow, I find that Ms. Phillips’ cell phone records for December 3, 2011 are not relevant to the determination of the substantive issues in dispute in this case. Therefore, Ms. Phillips is not compelled to produce them.

LAW:

Rule 32.2 and 32.3 of the Dispute Resolution Practice Code (the “Code”) state that:

32.2 Subject to the timelines 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…”

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.

In deciding this motion, I find the following phrase instructive:

“Relevance is framed by reference to the issue being arbitrated.”⁴

At the pre-hearing held on May 13, 2014, the parties identified and agreed that the following issues remained in dispute at the Arbitration hearing:

Medical benefits
cost of examinations
a weekly income replacement benefit
attendant care benefits
special award.

Unica did not raise any preliminary issue on whether there was in fact an accident. In addition, there was no allegation of fraud raised by Unica. I find that in the absence of any such preliminary issue by Unica, there is no reasonable basis to request Ms. Phillips’ cell phone records.

An Arbitrator’s discretion to order the production of documents relevant to the determination of the issues in dispute pursuant to Rule 32 above promotes the mandate of this commission which is to produce the most just, quickest and least expensive resolution of disputes.⁵ The principle goal of the pre-hearing process is to identify the issues to be arbitrated.⁶ The Practice Notes contained in the Code provide some guidance as to what documents would be considered relevant when certain benefits are in dispute. However, where a party is seeking certain documents which are not specifically listed in the Practice Notes, that party is expected to provide a reasonable explanation as to why they have a bearing on the dispute to be arbitrated.⁷ In this case, I am not persuaded that Unica has provided a reasonable explanation as to why Ms. Phillips cell phone records have a bearing on the issues in dispute.

Arbitral jurisprudence⁸ has established that in exercising the discretion to make an order, relevance and reasonableness are the guiding principles. The degree of the relevance is weighed against other factors such as the sensitivity of the information, the practicability of compliance, the timeliness of the request and the availability of the information from other sources. In addition, where the degree of relevance is slight or somewhat speculative, the other factors listed above would likely hold greater sway in exercising the discretion on whether or not to compel productions.

As stated earlier, relevance speaks to the substantive issues in dispute. I find that absent any dispute as to whether or not an accident occurred on December 3, 2011 or an allegation of fraud raised by Unica, issues such as discrepancies between Ms. Phillips’ testimony at an Examination Under Oath about the circumstances surrounding the accident and the evidence presented, at best speak to Ms. Phillips’ credibility. I am not persuaded that Ms. Phillips’ cell phone records for December 3, 2011 have any bearing on the issues in dispute at the Arbitration which are entitlement to the benefits outlined above. In addition, there is no evidence that the information Unica is seeking to obtain from Ms. Phillips cell phone records – Mr. Johnson’s contact details, is not available from other sources. I find the degree of relevance in this case very slight and highly speculative.

While there might be no apparent issues with the practicability of compliance and the timeliness of the request in this case, in my view, cell phone records are of a sensitive and personal nature to which an insured should enjoy a right to a reasonable expectation of privacy. Therefore, where a party is seeking an order to compel production of such documents or information, I find that they must establish that the probative value of the documents outweighs the possibility that the production of the documents will prejudice an insured. In this case, without a reasonable explanation as to how Ms. Phillips’ cell phone records will assist the trier of fact in deciding the issues in dispute at the Arbitration, I am not persuaded that Unica has established that the probative value of the cell phone records is high enough to outweigh any prejudice to Ms. Phillips.

I find that Ms. Phillips’ cell phone records for the entire day of December 3, 2011 are not reasonably necessary to determine the issues in dispute in this case. Therefore, Ms. Phillips is not compelled to produce them.

EXPENSES:

The expenses of the motion are left to the discretion of the hearing Arbitrator.

February 18, 2015

Isoken Osunde

Arbitrator

Date