Fariba Baradaran v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 156

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

Neutral Citation: 2016 ONFSCDRS 156

FSCO A14-001706

BETWEEN:

FARIBA BARADARAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

MOTION DECISION

Before: Anne Sone

Heard: May 30, 2016, in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario

Appearances: Robert N. Franklin for Fariba Baradaran Mari Maimets for State Farm Mutual Automobile Insurance Company Manoucher Baradaran for Sama Baradaran

Issue:

The Applicant, Fariba Baradaran, was impaired as a result of a motor vehicle accident in which her daughter, Sama Baradaran, was struck by a vehicle on May 30, 2012. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes regarding non-earner and other benefits through mediation, and Fariba Baradaran applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

State Farm Mutual Automobile Insurance Company (State Farm) requests an order permitting it to produce the accident benefits claim file (consisting of all correspondence, medical reports and records, and OCF forms over which State Farm does not claim privilege) for Sama Baradaran, the Applicant in FSCO File No. A13-014023 to Fariba Baradaran, the Applicant in FSCO File No. A14-001706.

Result:

State Farm is permitted to produce the accident benefits claim file (consisting of all correspondence, medical reports and records, and OCF forms over which State Farm does not claim privilege) for Sama Baradaran, the Applicant in FSCO File No. A13-014023 to Fariba Baradaran, the Applicant in FSCO File No. A14-001706.

Submissions:

State Farm submits producing Sama’s accident benefits file to Fariba is appropriate in this case for the following reasons:

Fariba is Sama’s parent and guardian (which Fariba admitted during the motion hearing); there is no prejudice that can result to Sama by producing her file to Fariba;
Sama’s file contains medical records that discuss the care that Fariba provided to Sama after the accident. This evidence is directly relevant to Fariba’s claim for non-earner benefits. State Farm intends to introduce it at Fariba’s hearing as evidence of her post-accident functioning.
State Farm requires an arbitrator’s order for the production of Sama’s accident benefits file because it is bound by the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5 (PIPEDA), which prohibits the disclosure of a person’s personal information without the knowledge or consent of that person, unless, amongst other things, that disclosure is required to comply with an order made by a court, person or body with jurisdiction to compel production of that information.²
Producing Sama’s entire accident benefits claim file (subject to claims of privilege) rather than production of only those records State Farm intends to rely upon at Fariba’s hearing would address any concerns regarding “cherry-picking” of records.

Mr. Franklin, on behalf of Fariba took no position with respect to the requested production order, subject to her right to argue at the hearing that the documents may not be relevant; however, he objected to State Farm being allowed to call witnesses to give viva voce evidence, if their records were not ordered produced.

Mr. Baradaran, on behalf of Sama submitted that her accident benefits file should not be produced to Fariba because Sama is a minor who was dealing with serious physical, mental and emotional issues at the time she made these statements. In addition, Sama’s statements were not made under oath, and we cannot be sure that her treatment providers/assessors quoted her correctly. Further, Mr. Baradaran stated that Fariba helped Sama, because as a mother she had to do that since Sama’s attendant care provider was not there in the evenings. He also indicated that Fariba performed these tasks in spite of the physical and emotional toll it took on her.

Analysis:

State Farm provided at least eight specific examples of comments in Sama’s accident benefits file that would be relevant to its defence of Fariba’s claim for a non-earner benefit. As Fariba is Sama’s mother and legal guardian, I am not concerned about privacy issues here.

Under section 15 of the Statutory Powers Procedure Act,³ I have a wide discretion to admit evidence so long as it is relevant and not subject to privilege. This evidence is clearly relevant to Fariba’s hearing. State Farm has agreed to provide the entire accident benefits claim file, subject to claims of privilege. This file may also include evidence that is helpful to Fariba’s claim for accident benefits. Since this evidence is already in Sama’s file, there is little, if any additional prejudice to her. The probative value of this evidence outweighs the possibility of prejudice to Sama.

The arbitrator hearing this matter can address any concerns due to Sama’s age, physical, mental or emotional condition, by giving this evidence the appropriate weight. As a result, I order that State Farm be permitted to produce the accident benefits claim file (consisting of all correspondence, medical reports and records, and OCF forms over which State Farm does not claim privilege) for Sama Baradaran, the Applicant in FSCO File No. A13-014023 to Fariba Baradaran, the Applicant in FSCO File No. A14-001706.

In light of my order, I make no ruling as to whether to State Farm could be allowed to call witnesses to give viva voce evidence, if these witnesses’ records were not ordered produced.

EXPENSES:

I leave the issue of the expenses of this motion to the hearing arbitrator, but specifically state that any delay occasioned by obtaining this production order is not due to any conduct of Fariba Baradaran or her representative.

May 31, 2016

Anne Sone

Arbitrator

Date