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

Neutral Citation: 2016 ONFSCDRS 221

FSCO A15-002617

BETWEEN:

ANDREY YAKUSHIN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Alan Mervin, Arbitrator

Heard: July 20, 2016, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: No one appearing for Mr. Yakushin Shawn Megarry for State Farm Mutual Automobile Insurance Company No one appearing for the third party, Toronto Police Service

The Applicant, Andrey Yakushin, was injured in a motor vehicle accident on November 21, 2012. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated certain benefits, and the parties were unable to resolve their disputes through mediation.

Mr. Yakushin then applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Background:

During the pre-hearing discussion in this case, the parties identified a preliminary issue relating to the question of causation of the injuries of the Applicant, and it became evident that factual circumstances before and after the accident required clarification in order to assist in assessing whether the Applicant’s injuries were as a result of the use and/or operation of a motor vehicle.

According to the submission of the Insurer, there was some indication of an altercation involving the Applicant and/or the driver or passenger of the other vehicle, close in time to the accident, and apparently, witnesses to the accident gave reports to the police that at first blush, appeared to be inconsistent with the Insurer’s information regarding the circumstances surrounding the accident.

Access to the records arising out of the investigation of the incident by the Toronto Police Service (“TPS”) may provide information to give some clarity as to how the accident and the injuries occurred, and I accept that these records are relevant to the issues in this case.

However, apparently the TPS, will not release any records without a court order, and to date, nothing in this regard has been provided despite several request letters by the Applicant to the TPS. State Farm then brought this motion for production of the TPS records relating to Mr. Yukushin’s accident.

The issues in the motion are:

Is State Farm entitled to an order for production from the Toronto Police Service, of all of the their records including records that exist in electronic format only, that relate to the motor vehicle accident giving rise to the no-fault motor vehicle accident benefits claim, including records that exist in electronic format only that relate to the motor vehicle accident of November 21, 2012, giving rise to the no-fault motor vehicle accident benefits claim of Andrey Yakushin including, without limitation, unedited statements of witnesses and of persons involved in the accident, records of interviews or questioning by the police, police field notes, memo books, memoranda reports, accident reconstruction records, photos, diagrams, sketches and records of convictions, subject to the redactions referenced in the letter of Sie-Wing Khow, counsel for the TPS, dated July 23, 2016.

Result:

State Farm is entitled to production of the requested records including records that exist in electronic format only that relate to the motor vehicle accident giving rise to the no-fault motor vehicle accident benefits claim of Andrey Yakushin, which accident occurred on November 21, 2012, including, without limitation, unedited statements of witnesses and of persons involved in the accident, records of interviews or questioning by the police, police field notes, memo books memoranda reports, accident reconstruction records, photos, diagrams, sketches and records of convictions," subject to the redactions contained in the letter of Sie-Wing Khow, counsel for the TPS, July 23, 2016.

EVIDENCE AND ANALYSIS:

The TPS records sought by both the Insurer and the Applicant, identified in the motion materials as:

unedited handwritten notebook, notes, field notes, witness statements, accident reconstruction reports and records, vehicle inspection reports, audio-video tapes, surveillance footage, photographs, certificates alcohol influence reports, and any other investigative materials, records or documents generated or kept by the TPS pertaining to the investigation of an incident that occurred on November 21, 2012, in which the Applicant may have sustained personal injuries.²

The Insurer has submitted that both the materials sought and the information contained within those materials are relevant, as they deal with the main issue in the dispute between the Insurer and the Applicant: the location, witnesses, and circumstances as to how the accident occurred, the surrounding circumstance, and any other evidence that would not be available from Mr. Yakushin.

I further understand that the Applicant has provided his consent to the TPS for the release of documents related to the MVA, and the TPS has sent a letter³, under signature of Sie -Wing Khow, TPS counsel, indicating that while it cannot consent to the order, it does not oppose its issuance, as long as conditions contained in the letter are incorporated into the order.

I am advised that the Insurer has sent a draft of an order for approval by TPS, referencing the conditions in the letter.⁴

I am further advised that the TPS has indicated that they would not oppose an order in the form of the draft that has been submitted. Toronto Police Services apparently requires a court order for compliance with these productions, as the Freedom of Information and Privacy Act (FIPPA) would raise a bar to disclosure of these records in the absence of a court order.

I have also reviewed the file and find that all parties have been properly served and given proper notice of the motion.

As to the relevance of the requested documents, it appears that there is no question that they are relevant to the issues in this case. The documents deal with the location and mechanism of the accident, and its surrounding circumstance, and contain evidence that would not be available from Mr. Yakushin,

I have reviewed the draft order provided by counsel, who has requested that the terms and exclusions contained in the draft order be incorporated into my order should I grant the motion. I am satisfied that it would be appropriate to do so, and my order below has incorporated all terms in the Insurer’s letter of July 23, 2016.

I therefore order production by TPS of the documents specified in the order that follows.

AUTHORITY TO MAKE THIRD PARTY ORDER

The notice of motion in this matter cites the following as grounds for this motion:

Section 22(1) of the Insurance Act, RS0 1990 (as amended);
Sections 12.1 and 25.1 of the Statutory Powers Procedure Act, RSO 1990, c.S.22 (SPPA); and
Rule 67 of the Dispute Resolution Practice Code, Fourth Edition.

[Section 22(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html#sec22subsec1_smooth) of the [Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)

Section 22(1) of the Insurance Act provides as follows:

Proceedings before Director or Arbitrator

For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions.

This provision gives an arbitrator all of the powers of a judge of the Superior Court, when assigned to arbitrate a case. Arbitrations are an exercise of a statutory power of decision which is subject to the SPPA, providing a second foundation for a production order in this matter.

Section 12(1) of the SPPA provides:

A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal.

While the section refers only to production of evidence at a hearing, there are other provisions that extend the reach of this power to the pre-hearing process. Section 25.1(1) of the SPPA provides that “A tribunal may make rules governing the practice and procedure before it.” In the case of the Insurance Act, arbitrations which take place under the umbrella of the Financial Services Commission of Ontario, the Code provides such rules.

Rule 67.4, permitting production orders against non-parties is expressed as follows:

67.4 Where a party seeks an order for production against a person who is not a party to the proceeding ("third party"), the party making the request must serve the materials required under Rule 67.3, upon the third party and file it together with a Statement of Service in Form F.

67.5 Within 10 days of being served, the responding party and third party, if any, must:

(a) serve a written response and documents to be relied on; and

(b) file a copy of the written response and documents.

67.6 The adjudicator may determine the request on the basis of the documents and written submissions filed, or in such manner as the adjudicator considers appropriate.

67.7 Before making an order for the production of documents against a third party, the Adjudicator shall be satisfied that:

(a) the parties have made reasonable efforts to obtain the document sought;

(b) the document sought is in the possession, control or power of the third party;

(d) the document is reasonably required to ensure a just and fair hearing.

Having reviewed the file, and having read the submissions of the parties, I am satisfied that Rule 67 of the Code has been complied with and can be the basis for an order for production of documents from a third party. In the alternative, Rule 22(1) of the Insurance Act also provides a foundation for the basis of the Order.

As noted earlier, there is no dispute that the documents requested are potentially relevant, and indeed, necessary to both parties to proceed to arbitration in this matter. There is no question that the documents are in the hands of the OPP, that they do not form part of a crown brief or a litigation brief, and that proper notice has been given to the OPP of the request for production.

There has been no claim advanced of privilege with respect to any of the requested documents by the police or any party.

I am satisfied that the criteria for third party production under both Rule 30.10 of the Rules of Civil Procedure and Rule 67 of the Code have been met. Consequently I am of the view that the documents can and should be ordered produced, and I do so in the exercise of my powers to order the production of “documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions.”

Counsel for the OPP has submitted that, although it will not consent to an order, it will not oppose the issuance of an order so long as it is in accordance with the draft order provided by counsel. The terms of the draft order provided have been included verbatim in the order below.

EXPENSES:

As the Insurer has requested that there be no expense award in this motion, and as the Applicant/ responding party did not appear, in the absence of any further submissions, no expenses are awarded on this motion.

August 18, 2016

Alan Mervin Arbitrator

Date

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

Neutral Citation: 2016 ONFSCDRS 221

FSCO A15-002617

BETWEEN:

ANDREY YAKUSHIN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE 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:

Subject to the conditions and limitations as set out in paragraph 2 of this Order, the Toronto Police Service produce to the moving party in this matter, its complete unredacted investigation files in relation to incident on November 21, 2012 involving the applicant Andrey Yakushin and/or the events leading up to it, including, but not limited to, the names and contact information of any independent witnesses, any statements given by any independent witnesses, and any audio or video recordings, as well as any records in relation to the investigation of charges, fees, penalties, and/or sanctions resulting from the accident.
The production of any record held by the Toronto Police Service under paragraph 1 of this Order shall be subject to the following conditions and limitations:

a. The records copied and produced shall only be used by the parties directly involved in the litigation of this matter for the full and fair disposition of the issues in the civil proceeding;

b. The parties directly involved in the litigation of this matter, including any retained experts, shall not disclose the records or any information contained therein to any person who does not have a direct interest in this civil proceeding;

c. The Toronto Police Service will only produce those records in its possession and control, and nothing in this Order shall require the Toronto Police Service to search or obtain documents from any other agency or person;

d. The Toronto Police Service is not required to produce any records that it did not create, but that may be contained in the investigative file. Such records may include those created by other agencies or persons, such as the Special Investigations Unit, hospitals or medical professionals. The Toronto Police Service shall note the existence of such records, however production must be sought and obtained from the agency or person from which or from whom they originate;

e. No records concerning young persons that are subject to the Youth Criminal Justice Act, S.C. 2002, c. 1, (“YCJA”) will be produced, unless such records can be severed or redacted in such a way so as to protect the identity of the young person to whom the records relate, or unless a Justice of the Youth Court orders production of such unredacted records upon an application for same, and in compliance with the YCJA;

f. The Toronto Police Service shall redact any information that, if produced, would compromise law enforcement interests by revealing, inter alia, confidential police investigative techniques, or the identity of any confidential informant;

g. Any records or portions thereof over which a claim of privilege is asserted will be redacted. However, a list of such records will be provided to the solicitor for the moving party and shall include the basis upon which privilege is being asserted for each record or portions thereof;

h. Names and contact information of third-parties who are related to the investigation underlying this proceeding shall be produced. However, other identifiers of those third-parties including, inter alia, social insurance numbers, dates of birth, next of kin, drivers’ licence numbers, and vehicle licence plate information will be redacted; and

i. Within thirty (30) days following receipt of a copy of this Order, the Toronto Police Service shall assemble and produce to the solicitor for the moving party, one (1) copy of the records so ordered. The Toronto Police Service shall be entitled to charge the moving party reasonable fees for the copying and delivery of the records, which fees may be required prior to delivery.

THIS ARBITRATOR ORDERS that there shall be no expenses awarded on this motion.