Dispute Resolution Services Services de règlement des différends

Neutral Citation: 2019 ONFSCDRS 47

A13-015345

BETWEEN:

CELIA YANG

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

Before: Arbitrator Isabel Stramwasser

Heard: By written submissions received November 28, December 6 and December 12, 2019

Appearances: Joseph Campisi Jr. and Peter Murray for Celia Yang Philippa Samworth for Co-operators General Insurance Company

BACKGROUND:

The Applicant, Ms. Celia Yang, was injured in an automobile accident on December 29, 2011 and sought benefits pursuant to the "Schedule",¹ which Co-operators General Insurance Company denied. The parties were unable to resolve their dispute through mediation. Consequently, Ms. Yang applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.²

On November 19, 2019, the parties had a pre-hearing discussion before me in which I made the following interim orders:

ORDER 1: I hereby order that the Insurer shall make best efforts to produce the entirety of the AB file within 30 days of this pre-hearing conference, making any redactions or withholding at its discretion with clear explanations for why so that they can be challenged if necessary.

ORDER 2: I hereby order that the Insurer shall make best efforts to provide the following within 30 days of receiving the Applicant's signed authorizations for same:

i. All clinical notes, records and draft reports from the following health providers (noting my spelling is phonetic):

a. Dr. Tuff b. Dr. Ko c. Dr. Hines d. Dr. Modell e. Rania Gaddis f. Dr Isen g. Leslie Hisey, OT h. Joanne Rames, OT i. Lucides Laurettis, OT j. Dr Jack Mapro

ii. All information related to the Applicant from the following institutions (noting my spelling is phonetic):

a. Sira Health Solutions b. Sira Medical c. Viewpoint Inc d. Focus e. Joanne Ramas and Associates

On November 28, 2019, Co-operators brought a motion seeking a variation of Order #2 made at our pre-hearing discussion of November 19, 2019. In particular, Co-operators requested that the following sources of records be excluded from the order: Ranya Ghatas, Dr. Robert Brian Hines, CIRA Health Solutions LP and CIRA Medical.

On November 29, 2019, I sent a letter to the parties asking if they wanted a new order on consent and provided a draft interim order for consideration. In doing so, I was exercising my discretion under Rule 1.1 to broadly interpret the Dispute Resolution Practice Code³ to produce the most just, quickest and least expensive resolution of the dispute.

However, Ms. Yang did not consent. Rather, Ms. Yang objected and provided a cross-motion with 99 pages of material, seeking variation of interim Order #1 to produce specific documents in the accident benefits file.

ISSUE:

The issue I must decide is:

Are the interim orders of November 19, 2019 varied?

RESULT:

The interim orders of November 19, 2019 are not varied.

REASONS:

Positions of the Parties

The case for Ms. Yang is that Co-operators cannot be trusted to produce material as ordered. Ms. Yang seeks variations in anticipation of a breach.

The case for Co-operators is that, unbeknownst to them at the time of the pre-hearing conference, Ms. Yang had issued a Statement of Claim in the Ontario Superior Court of Justice against CIRA Medical Services, Dr. Robert Hines and Ranya Ghatas (as well as Co-Operators, among others) and that it is consequently no longer appropriate for Co-Operators to seek records from those parties who are now its co-defendants.

The Law

Rule 61.2 of the Dispute Resolution Practice Code provides that a party may not apply to vary an interim order until all of the issues in dispute in the proceeding have been finally decided, unless the Director orders otherwise.

Analysis

Under Rule 61.2, I have no jurisdiction to vary interim orders.

Even if the Director delegated that jurisdiction to me, I would dismiss both motions.

With regard to Co-operators' motion, I find that Ms. Yang's new Statement of Claim is not material to these proceedings. The issues in that Statement of Claim do not overlap with the issues before Dispute Resolution Services. Consequently, the fact that Ms. Yang has started another proceeding in another forum against the subject sources of the interim order of November 19, 2019 is not relevant to these proceedings. Dispute Resolution Services only has jurisdiction over the matters before it.

With regard to Ms. Yang's motion, Ms. Yang's mistrust of Co-operators is not material, either. Ms. Yang made the same argument at the pre-hearing conference, namely, that she did not trust Co-operators to abide by general production orders. At the time, I declined to make an order against Co-operators in anticipation of a breach before giving them a chance to meet their production requirements in the standard manner.

It follows that the interim orders of November 19, 2019 shall stand as set out in the pre-hearing letter of that date.

To assist the parties in interpreting Order #2 of November 19, 2019, Co-operators may begin to make its best efforts to produce the material set out in Order #2 within 30 days of today's date or the date on which it receives the Applicant's signed authorizations, whichever comes last.

CONCLUSION:

I dismiss the motions of both parties to vary the interim orders of November 19, 2019.

The overall result of my determination is that the interim orders of November 19, 2019 shall stand as set out in the pre-hearing letter of November 19, 2019.

December 19, 2019

Isabel Stramwasser Arbitrator

Date