Andrea Chrysler v. Pembridge Insurance Company, 2018 ONFSCDRS 67

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

Neutral Citation: 2018 ONFSCDRS 67

FSCO A12-001118

BETWEEN:

ANDREA CHRYSLER

Applicant

and

PEMBRIDGE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Anita Idemudia

Heard: July 27, 2017, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Daniel Roncari for Ms. Chrysler Sandi Smith for Pembridge Insurance Company

Issues:

The Applicant, Andrea Chrysler, was injured in a motor vehicle accident on March 14, 2006. She applied for and received statutory accident benefits from Pembridge Insurance Company (“Pembridge”), payable under the Schedule.¹ Pembridge terminated certain benefits. The parties were unable to resolve their disputes through mediation, and Ms. Chrysler applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this motion are:

Is Pembridge entitled to an order compelling a non-party, Ministry of Community and Social Services to produce a complete copy of the Ontario Disability Support Program (ODSP) file for Ms. Chrysler?
Is Ms. Chrysler entitled to an order compelling Pembridge to produce the adjuster’s log notes, pertaining to the issue of catastrophic impairment, for the period of March 14, 2006 to March 7, 2016?

Result:

Pembridge is entitled to an order compelling the Ministry of Community and Social Services to produce a complete copy of Ms. Chrysler’s Ontario Disability Support Program (ODSP) file.
Ms. Chrysler is entitled to an order compelling Pembridge to produce the adjuster’s log notes, pertaining to the issue of catastrophic impairment, for the period October 29, 2013 to March 7, 2016.

INSURER’S MOTION

Pembridge seeks an order compelling the Ministry of Community and Social Services to produce Ms. Chrysler’s ODSP file, on the basis that the information contained therein are relevant to the issues in dispute, specifically with respect to Ms. Chrysler’s on-going health and disability status.

Ms. Chrysler did not oppose the motion.

The Law

Rule 67 of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) (the “Code”) sets out an adjudicator’s authority to make interim orders within a proceeding.

Rule 67.4 provides that 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. Having reviewed the file, I am satisfied that that the service requirements have been met.

Pursuant to Rule 67.6, an adjudicator may determine the request on the basis of the document and written submissions filed, or in such manner as he or she considers appropriate.

The requirements for obtaining a production order against a third party are set out in Rule 67.7. In order to do so, I must be satisfied that:

a. The parties have made reasonable efforts to obtain the documents sought;

b. The document sought is in the possession, control or power of the third party;

c. The third party has had a reasonable opportunity to respond;

d. The document is reasonably required to ensure a just and fair hearing.

Samantha Higgins of Gilbert Kirby Stringer LLP, lawyers for Pembridge Insurance, swore an affidavit dated July 6, 2016, wherein she sets out the efforts that have been made by Applicant’s counsel to obtain an updated copy of Ms. Chrysler’s ODSP file from the Ministry of Community and Social Services from October 2014 to date.

Conclusion

Having reviewed the Insurer’s motion and supporting documents, I am satisfied that:

a. Ms. Chrysler’s ODSP file is reasonably required to ensure a just and fair hearing.

b. Counsel for Ms. Chrysler has made reasonable efforts to obtain the records.

c. The records are likely in the possession and control of the Ministry of Community and Social Services.

d. The Ministry of Community and Social Services has had a reasonable opportunity to respond to the request for Ms. Chrysler’s updated ODSP file for the period October 2014 to date.

I hereby order the Ministry of Community and Social Services to produce an updated copy Ms. Chrysler’s ODSP file from October 2014 to date.

THE APPLICANT’S MOTION

Background

Ms. Chrysler submitted an Application for Mediation dated March 7, 2016 claiming specific statutory accident benefits – Attendant Care Benefits, Housekeeping benefits, Case Manager services, Interest and a designation of Catastrophic Impairment.

At the resumption of a pre-hearing held on June 6, 2017, the pre-hearing arbitrator agreed to add the CAT issue to the issues in dispute.

Ms. Chrysler’s motion is for an order requesting that Pembridge produce the adjuster’s notes, pertaining to the issue of catastrophic Impairment, for the period March 7, 2006 to March 7, 2016.

Pembridge opposes the order on the basis that the issue relating to CAT Designation should not have been added at the pre-hearing, as it does not necessarily arise out of Ms. Chrysler’s claim for on-going benefits. Counsel relied on Aviva Canada Inc. and Duong.²

I note that the CAT designation was added at the pre-hearing discussion held June 6, 2017, However, as Pembridge has chosen not to appeal the ruling, I do not have the authority to overrule that decision.

ANALYSIS

The principal jurisdiction for an arbitrator to order the production of any documentary evidence arises from section 22(1) of the Insurance Act which states:

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.

Subject to Rule 39 of the Code, 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.

It is trite law that relevance and privilege are the two main criteria for determining whether a document should be produced.

In Ghaedsharagy and Kingsway General Insurance Company,³ Arbitrator Bujold made reference to the well-established practice for insurers to produce their entire accident benefits file. He states as follows:

The overwhelming practice has been to treat an insurer’s file as generally producible at least to the date of the Application for Mediation (when arbitrators have generally recognised a bright line” or presumption of litigation privilege), even where there has been no claim for a special award or the claim lacks particulars. Insurers today routinely produce their adjuster’s files on such basis, and in most cases, this practice has provided an efficient and effective means of balancing full and fair disclosure of a class of relevant documents, on the one hand, against the need to protect documents prepared for the dominant purpose of litigation, on the other.

FSCO arbitrators have stated that “routine” production of an adjuster’s file is based on the presumption that a significant portion of the insurer’s file is going to be relevant to the entitlement issues in dispute, as “the whole raison d’etre of the insurer’s adjusting file is to respond to the applicant’s no fault claim….” It is also based on the reality that “there is no cost effective and efficient process to determine the relevance of documents in the insurer’s file.”⁴

I am guided by these principles set out in the above cases.

In the case at hand, the insurer received its first set of CAT assessments in October 2014. At the time of the first Application for Mediation, CAT was not an issue in dispute. It is reasonable to assume that, despite the accident having occurred in 2006, this issue did not arise until much later when CAT assessments were conducted.

Therefore, while I am prepared to order production of the log notes for a reasonable period pre-dating the Application for mediation, to order the production of the log notes back to 2006 would, in my view, amount to a “fishing expedition”. I find that one year prior to the receipt of the first set of CAT reports is a reasonable period.

Conclusion

I therefore find that Ms. Chrysler is only entitled to the adjuster’s notes for the period October 29, 2013 (one year prior to the first set of CAT assessments/reports) to March 7, 2016 (the date of the Application for Mediation relating to a CAT designation)

EXPENSES:

I leave the issue of expenses in this motion to the hearing arbitrator.

March 27, 2018

Anita Idemudia Arbitrator

Date