Christina Zaia and Freda Zaia v. Unica Insurance Inc., 2016 ONFSCDRS 236

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 236

FSCO A12-006468/006470

BETWEEN:

CHRISTINA ZAIA and FREDA ZAIA

Applicants

and

UNICA INSURANCE INC.

Insurer

DECISION ON A MOTION FOR PRODUCTION

Before: John Wilson

Heard: By Written Submissions

Appearances: Reno M. Berlingieri for Ms. Christina Zaia and Ms. Freda Zaia

Philip Tyborski for Unica Insurance Inc.

Issues:

The Applicants, Ms. Christina Zaia and Ms. Freda Zaia, were injured in a motor vehicle accident on April 10, 2011. They applied for statutory accident benefits from Unica Insurance Inc. (“Unica”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Christina Zaia and Ms. Freda Zaia applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

This is a motion made by Unica to compel Ms. Christina Zaia and Ms. Freda Zaia and certain third parties to produce certain documents that Unica believes to be relevant to the issues in dispute in this arbitration.

In the case of Ms. Christina Zaia, Unica requests the following documents and information:

1. Copy of the WSIB files for the workplace accident of December 2009.

2. Clinical notes and records of Dr. Ali Ghouse for two years pre-accident to date.

3. Updated clinical notes and records for all treating practitioners including, Dr. Gene Track, Gerard Dannenberg, Melina Szpakowski, and Dr. Alipio from December 2013.

4. Complete collateral Benefits file including STD and LTD, if any.

5. Current contact information for all attendant care and housekeeping service providers, including name address and telephone number for all providers, the hourly rate charged, and confirmation that the expenses were “incurred” in accordance with section 3(7) of the Schedule.

6. Clinical records of the walk-in clinics visited prior to and after the motor vehicle accident.

7. To provide the records of a May 4, 2014 visit to an unknown hospital.

8. Dr. Chelvanathan’s clinical notes and records.

In the case of Ms. Freda Zaia, Unica requests an order that the following documents and information be produced:

1. Updated clinical notes and records of the family physician, Dr. Elder from December 2011 to date.

2. Updated clinical notes and records for all treating health practitioners including Dr. Hiten Lad and Dr. Alipio from December 2013.

3. Complete employment file from Maple Leaf Meat.

4. Complete WSIB file from 2006 to date.

5. Current contact information for all attendant care and housekeeping service providers including, name address and telephone number of the service provider, the hourly rate charged, and the reason why each task could not be performed by the Applicant.

6. Clinical notes and record of the walk-in clinics visited prior to and after the motor vehicle accident.

7. The notes and records of Dr. Fedorkow, Dr. Wismer and Dr. Muniz Rodriguez.

8. That Ms. Freda Zaia advise whether CPP benefits have been applied for and the status of the application.

Result:

1. Given the absence of evidentiary support as to the necessity of the third party documents, I decline to make the third party orders requested.

2. Ms. Christina Zaia and Ms. Freda Zaia shall produce the documents and information set out in the respective orders.

EVIDENCE AND ANALYSIS:

This motion for production relates to documents and information under the control of either Ms. Christina Zaia or Ms. Freda Zaia as well as documents presumably under the control of unrelated third parties.

Practice at the Commission with regard to pre-hearing production can be summarised as reflecting the spirit of section 15 (1) of the Statutory Powers Procedures Act³ which provides that a tribunal may admit any document relevant to the subject-matter of the hearing. In the absence of mandated affidavits of documents and discoveries, this principle is translated into the obligation under Rule 32.2 of the Dispute Resolution Practice Code of the parties exchanging the documents that are reasonably necessary to determine the issues being arbitrated. It is clear that this obligation is an ongoing one with parties required to continue with disclosure throughout the hearing process.

Such an approach is congruent with the modern view of litigation which discourages trial by ambush and values the ability of all parties to make a rational evaluation of their own prospects, thus encouraging reasonable settlement.

At Rule 32.3, the Code goes further and empowers an arbitrator to order the production of documents relevant to the determination of the issues in the arbitration.

When an order is sought against a third party to the process, Rule 67.7 of the Code provides that the arbitrator hearing the motion must be satisfied that the parties have first made reasonable efforts to obtain the documents, that the document sought is in the possession of the third party, that the third party has a reasonable opportunity to respond to the request, and that the document is reasonably required to ensure a just and fair hearing.

In this matter, counsel for the Insurer appears to have properly served the notice of motion and supporting materials on each and all parties and non-parties from whom Unica is requesting that documentation be provided.

In support of its motion, Unica provided affidavits by Guy Kartuz, a lawyer in the legal department of Unica. The affidavits are clearly based on Mr. Kartuz’s information and belief rather than on any first-hand acquaintance with the information provided. While there are some minor differences between the two affidavits based on the particular documents requested, they are identical in the evidence provided as to the relevance of the documents requested and as to whether the documents are required to ensure a just and fair hearing. Mr. Kartuz simply states: “I verily believe that the requested productions are relevant to the material issue in this Arbitration and, specifically, with the issue of entitlement to benefits” without specifying the source of that belief, the benefit that the documents relate to or the underlying reasons for so believing. If Mr. Kartuz had any knowledge of the underlying issues in this arbitration and the relevance of the documents requested to those issues, he did not share it.

As for the third-party production motions, involving strangers to the litigation in the production process can be potentially invasive and irksome to the non-party who is forced to respond to a motion that he or she did not invite. While the Code provides a mechanism for arbitrators to compel third party production, those same provisions provide some protection against needless harassment. There is no reason that parties to this arbitration should not have to meet all the criteria for production including those set out in Rule 67.7 of the Code. Specifically, this includes proof that the documents requested are reasonably required to ensure a fair and just hearing. An inference of usefulness, or a blanket, unsupported statement of relevance is not sufficient except in the most obvious situations.

I do not accept that Mr. Kartuz’s affidavit provides adequate credible and probative evidence of compliance with Rule 67.7 (d) of the Code which is a mandatory precondition to any third party order. Based on the affidavits, I simply have no idea as to whether or not the third party documents in question are “reasonably required to ensure a just and fair hearing” not to mention any sense of whether or not they are relevant. Consequently, I decline to make any of the proposed third party orders without further and better supporting evidence as required by the Code.

I also note that some of the requested documents are virtually unidentified or have no time and date specific parameters making compliance with any potential order problematic, to say the least. Consequently, I am disinclined to make any order where the identity of the document or documents requested is not ascertainable.

This is not to say that Ms. Christina Zaia and Ms. Freda Zaia will necessarily suffer no consequences if the hearing proceeds in the absence of any of the requested documents. Whether or not I order production, it is still open to Unica to ask the hearing arbitrator to draw an adverse inference against the Applicants if relevant and probative documents have not been produced by the Applicants. As well, the burden of proof of entitlement to any benefits ultimately rests with the Applicants who may well wish they had applied all due diligence in obtaining the requested documents.

In this motion the burden, however, rests with the moving party, Unica, to demonstrate that the requirements for a production order have been made out. I have already found that the request for orders against third parties has not been made out. With regard to the balance of the orders, those within the control and knowledge of Ms. Christina Zaia and Ms. Freda Zaia, the principal concern will be the relevance of the requested information to the issues in arbitration.

Some of the requests deal with information rather than documents. Although FSCO arbitrations do not have specific procedures for discoveries, either written or oral, section 22 of the Insurance Act, 2 as it read prior to the recent amendments, governs this arbitration. That provision specifically grants arbitrators the same powers to compel evidence, including oral or written evidence that is granted to a judge of the superior court in civil matters. Consequently, I have jurisdiction to order not only the production of documents or things but also the divulgation of facts and information relevant to the issues in arbitration.

In the interests of simplicity, I have indicated the appropriate response to each request in the order in which they were requested.

The disposition regarding the orders requested against Ms. Christina Zaia is as follows:

1. Copy of the WSIB files for the workplace accident of December 2009.

While there is no contextual support for this request, and no specific explanation of the relevance of this file, an inference may be drawn that a workplace accident within two years of the motor vehicle accident would likely be relevant to any disability arising after the motor vehicle accident. I order Ms. Zaia to make best efforts to obtain the file and provide it to Unica.

2. Clinical notes and records of Dr. Ali Ghouse for two years pre-accident to date.

Given the absence of any explanation of Dr. Ghouse’s involvement in the claim, I decline to make any order.

3. Updated clinical notes and records for all treating practitioners including, Dr. Gene Track, Gerard Dannenberg, Melina Szpakowski, and Dr. Alipio (from December 2013.

Given that the production obligation is ongoing, I order that Ms. Christina Zaia obtain and provide the updated records.

4. Complete collateral benefits file including STD and LTD, if any.

Ms. Christina Zaia shall advise within 30 days of the existence of any available collateral benefits.

5. Current contact information for all attendant care and housekeeping service providers, including name address and telephone number for all providers, the hourly rate charged, and confirmation that the expenses were “incurred” in accordance with section 3(7) of the Schedule.

Ms. Christina Zaia shall advise Unica as requested within 30 days. Given the incurred pre‑condition to such benefits, the information is clearly relevant and necessary for the efficient hearing of the housekeeping and attendant care issues.

6. Clinical records of the walk-in clinics visited prior to and after the motor vehicle accident.

In the absence of particulars of the names of the clinics and the dates of attendance, which would have been available from the OHIP records, presumably already in the hands of Unica, I decline to make this order.

7. To provide the records of a May 4, 2014 visit to an unknown hospital.

Ms. Zaia shall provide the particulars of any hospital attendance on May 4, 2014 including the name of the hospital, treating physicians and the reason for the attendance, if any.

8. Dr. Chelvanathan’s clinical notes and records.

The supporting material provides no indication of the role played by Dr. Chelvanathan, or where his treatments might fit in the time-line of this motor vehicle accident. I have no reason to believe that they are relevant. I decline to make any order.

In the case of Ms. Freda Zaia, I make the following orders:

1. Updated clinical notes and records of the family physician, Dr. Elder from December 2011 to date.

Ms. Freda Zaia is ordered to obtain the updated records and to update existing notes.

2. Updated clinical notes and records for all treating health practitioners including Dr. Hiten Lad, Dr. Alipio from December 2013.

Ms. Freda Zaia is ordered to update those records already supplied.

3. Complete employment file from Maple Leaf Meat.

Given the absence of any evidentiary context for this request, including whether or not Ms. Freda Zaia was ever an employee of Maple Leaf Meat, and the timeframe for such supposed employment, I decline to make the requested order.

4. Complete WSIB file from 2006 to date.

While a WSIB file could potentially be relevant to the issue of disability, given the absence of any positive evidence of a claim made by Ms. Zaia, and the total lack of context for this request, I decline to make the order.

5. Current contact information for all attendant care and housekeeping service providers including, name address and telephone number of the service provider, the hourly rate charged, and the reason why each task could not be performed by the applicant.

Given the importance of the “incurred” pre-condition for the named benefits, Ms. Zaia shall provide the requested information in all cases where she has indicated services were provided by a treatment provider.

6. Clinical notes and record of the walk-in clinics visited prior to and after the motor vehicle accident.

In view of the lack of specifics including whether or not there was attendance at such clinics, and the failure to identify any clinic, I decline to make the order.

7. The notes and records of Dr. Fedorkow, Dr. Wismer and Dr. Muniz Rodriguez.

Given the absence of any context or evidence of relevance, I decline to make the order.

9. That Ms. Freda Zaia advise whether CPP benefits have been applied for and the status of the application.

Given the potential deductibility of certain CPP benefits, and their likely overlapping relevance to the issue of disability, I order Ms. Freda Zaia to respond to provide information concerning any application for CPP benefits.

The determination of the various production requests is without prejudice to the right of either party to bring forward these requests in the light of further credible evidence as to the context and the relevance of the information and documents requested.

EXPENSES:

There being no specific request for costs or expenses, I leave the question of expenses in this motion to the hearing arbitrator.

September 7, 2016

John Wilson Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 236

FSCO A12-006468/006470

BETWEEN:

CHRISTINA ZAIA and FREDA ZAIA

Applicants

and

UNICA INSURANCE INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, as amended, it is ordered that the following documents and information be provided to Unica:

The orders against Ms. Christina Zaia are as follows:

1. Copy of the WSIB files for the workplace accident of December 2009.

While there is no contextual support for this request, and no specific explanation of the relevance of this file, an inference may be drawn that a workplace accident within two years of the motor vehicle accident would likely be relevant to any disability arising after the motor vehicle accident. I order Ms. Christina Zaia to make best efforts to obtain the WSIB file and provide it to Unica.

2. Clinical notes and records of Dr. Ali Ghouse for two years pre-accident to date.

Given the absence of any explanation of Dr. Ghouse’s involvement in the claim, I decline to make any order.

3. Updated clinical notes and records for all treating practitioners including,

Dr. Gene Track, Gerard Dannenberg, Melina Szpakowski, and Dr. Alipio (from December 2013.

Given that some production has been made and that the obligation is ongoing, I order that Ms. Christina Zaia obtain and provide the updated records.

4. Complete collateral benefits file including STD and LTD, if any.

Ms. Christina Zaia shall advise within 30 days of the existence of any available collateral benefits.

5. Current contact information for all attendant care and housekeeping service providers, including name address and telephone number for all providers, the hourly rate charged, and confirmation that the expenses were “incurred” in accordance with section 3(7) of the Schedule.

Given the incurred pre-condition to such benefits the information is clearly relevant and necessary for the efficient hearing of the housekeeping and attendant care issues. Ms. Christina Zaia shall advise Unica as requested within 30 days.

6. Clinical records of the walk-in clinics visited prior to and after the motor vehicle accident.

In the absence of particulars of the names of the clinics and the dates of attendance, which would have been available from the OHIP records, presumably already in the hands of Unica, I decline to make this order.

7. To provide the records of a May 4, 2014 visit to an unknown hospital.

Ms. Christina Zaia shall provide the particulars of any hospital attendance on May 4, 2014 including the name of the hospital, treating physicians and the reason for the attendance, if any, within 30 days.

8. Dr. Chelvanathan’s clinical notes and records.

The supporting material provides no indication of the role played by Dr. Chelvanathan, or where his treatments might fit in the time-line of this motor vehicle accident. I have no reason to believe that they are relevant. I decline to make any order.

In the case of Ms. Freda Zaia, I make the following orders:

1. Updated clinical notes and records of the family physician, Dr. Elder from December 2011 to date.

Ms. Freda Zaia is ordered to obtain the updated records.

2. Updated clinical notes and records for all treating health practitioners including Dr. Hiten Lad and Dr. Alipio from December 2013.

Ms. Freda Zaia is ordered to update those records already supplied.

3. Complete employment file from Maple Leaf Meat.

Given the absence of any evidentiary context for this request, I decline to make the requested order.

4. Complete WSIB file from 2006 to date.

While a WSIB file could potentially be relevant to the issue of disability, given the absence of any evidence of a claim, and the total lack of context for this request, I decline to make the order.

5. Current contact information for all attendant care and housekeeping service providers including, name address and telephone number of the service provider, the hourly rate charged, and the reason why each task could not be performed by the applicant.

Given the importance of the “incurred” pre-condition for the named benefits, Ms. Freda Zaia shall provide the requested information in all cases where she has indicated services were provided by a treatment provider.

6. Clinical notes and record of the walk-in clinics visited prior to and after the motor vehicle accident.

In view of the lack of specifics including whether or not there was attendance at such clinics, I decline to make the order.

7. The notes and records of Dr., Fedorkow, Dr. Wismer and Dr. Muniz Rodriguez.

Given the absence of any context or evidence of relevance, I decline to make the order.

9. That Ms. Freda Zaia advise whether CPP benefits have been applied for and the status of the application.

I order Ms. Freda Zaia to respond and provide information concerning any application for CPP benefits within 30 days.

September 7, 2016

John Wilson Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Insurance Act, R.S.O. 1990, c. I-8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended.
3. 3Statutory Powers Procedure Act, R.S.O. 1990, c. S.22