Feredon Yousufi v. Wawanesa Mutual Insurance Company, 2016 ONFSCDRS 212

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

Neutral Citation: 2016 ONFSCDRS 212

FSCO A14-009957

BETWEEN:

FEREDON YOUSUFI

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

MOTION DECISION

Before: Anita Idemudia

Heard: August 4, 2016, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Kiran Birk for Mr. Yousufi Domenic D. Nicassio for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Feredon Yousufi, was injured in a motor vehicle accident on August 21, 2013. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company (Wawanesa), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Yousufi applied for arbitration at the Financial Services Commission of Ontario under the *Insurance Act*, R.S.O. 1990, c.I.8, as amended.

A pre-hearing discussion was heard on September 15, 2015 and the parties agreed to production exchange pursuant to Rule 32 of the Dispute Resolution Practice Code. The Arbitration hearing is scheduled to begin on October 17, 2016.

Wawanesa brought this motion dated July 19, 2016, for an order compelling certain third parties to produce certain documents required in deciding some of the issues contained in the Application for Arbitration, pursuant to Rule 67 of Dispute Resolution Practice Code.

At the hearing of this motion, both parties agreed that most of the productions requests upon which this motion was brought have been complied with – itemized as i, ii, iii and v, in Wawanesa’s notice of motion.

The issues in this motion were narrowed down to the following:

(iv) an order compelling the non-party, #1 Halal Pizza also known as Halal Kebab Pizza, to produce to Wawanesa, a complete copy of its employment file for Mr. Yousufi within five days of the hearing or an order that #1Halal Pizza answer the questions noted in the Applicant’s Counsel’s letter of June 14, 2016 - attached to Wawanesa’s motion record and marked as Exhibit “N”.

(vi) an order that Wawanesa will be able to rely on the documents sought in this motion even if the documentation is not provided by the third parties in time to be served by the Applicant or by the Respondent within timelines stipulated by the Dispute Resolution Practice Code.

Result:

#1 Halal Pizza/Halal Kebab Pizza shall produce a copy of Mr. Yousufi’s employment file or in the alternative, answer the questions in the Applicant counsel’s letter dated June 14, 2016 – attached to Wawanesa’s motion record and marked as Exhibit “N.”
Wawanesa is entitled to rely on the document(s) sought in this motion even if the document is not provided by the third parties in time to be served by the Applicant or by the Respondent within timelines stipulated by the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS

Mr. Yousufi’s counsel did not oppose the motion. I also had the opportunity to review the documents relied upon in this motion and contained in the motion record and am satisfied that:

The Applicant’s employment file from #1 Halal Pizza/Halal Kebab Pizza, as requested, is reasonably required to ensure a just and fair hearing.
The parties have made reasonable efforts to obtain a copy of the employment file.
#1 Halal Pizza/Halal Kebab Pizza has had a reasonable opportunity to respond to the request for a copy of the file and was served with the motion record on July 19, 2016, but has failed to respond.

In the circumstances, I find Wawanesa entitled to the orders sought.

August 5, 2016

Anita Idemudia Arbitrator

Date