D.A. v. The Personal Insurance Company, 2017 CanLII 148399

Tribunal File Number: 17-001941/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

D.A.

Applicant

and

The Personal Insurance Company

Respondent

AMENDED PRELIMINARY HEARING DECISION

ADJUDICATOR: Cezary Paluch

APPEARANCES:

For the Applicant: Todd Reybroek, counsel

For the Respondent: Kevin R. Motley, counsel

Date of Decision: October 6, 2017

INTRODUCTION

1. The applicant applied to the License Appeal Tribunal (“Tribunal”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) in respect of Minor Injury Guideline classification, entitlement to medical benefits, and entitlement to the cost of examinations.

2. A case conference took place on May 31, 2017 and an order was issued on June 13, 2017 scheduling an in person hearing for October 11 and 12, 2017.

3. Subsequently, resumption took place on June 23, 2017 and a further order was issued on July 4, 2017 (the “Second Order”).

4. At the resumption of the conference on June 23, 2017, the applicant’s counsel made a request to know the number of reports that each of the insurer’s examination assessors have provided to the respondent for the last 3 years and the cost of each report. The respondent refused and parties asked to make written submissions on this preliminary issue. The case conference adjudicator agreed.

5. Accordingly, the Second Order directed the parties to provide written submissions regarding this production request by the applicant by July 7, 2017.

6. The preliminary issue hearing was heard in writing.

RESULT

7. The applicant’s request for production is not granted.

8. These are the reasons for my decision.

SUBMISSIONS

9. The applicant submits the she is entitled to know the total number of reports Dr. N. Alikhan and Dr. G. Yee provided to the respondent in last three years and how much they were paid for each report because both doctors intend to provide expert evidence at the in person hearing and the applicant wishes to assess their impartiality.

10. The respondent opposes the request because the information sought is irrelevant and the Tribunal does not have jurisdiction to make such an order because such statistics are private, proprietary information of the assessment clinics.

ANALYSIS AND DECISION

11. This is a request for production or disclosure of statistical data, namely, confirmation of the number of reports completed by Dr. Alikhan and Dr. Yee over the last three years for the respondent and the amount paid for each report.

The authority of the Tribunal to entertain the request

12. A “Party” is defined in section 2.16 as “a person, association or corporation who has a right to participate in a proceeding and has notified the Tribunal of their intention to participate in the proceeding.”

13. The respondent in their submission argue that the request for such statistics is private, proprietary information of the assessment clinics (ie. a non-party) and cannot be compelled under the Tribunal’s power to compel witnesses to attend and bring documents with them by way of summons.

14. I do not see this request as a request for a non-party to produce the information. I also do not see this request as an order from the Tribunal to issue a summons for a third party or a doctor to provide this information.

15. Paragraph 4 of the Second Order specifically says confirmation of number reports that each assessor has been “retained by the insurer to provide on their files” and confirmation “paid to the assessors by the insurer” [emphasis added]. It does not say retained by ABC assessment clinic or paid by ABC assessment clinic. If I am wrong about this, I certainly required more evidence in the submissions that in fact the information that is being requested is entirely within the control of a third party and the insurer does not have access to it.

16. Correspondingly, if I am being asked to make a non-party order, I required that the language in the Order be made clear that the desired information is being requested from a non-party and preferably the exact legal name of the party. In this way, as any relief may impact on the rights of the non-party, the non-party should be served with the Order and given the opportunity to respond by way of intervener.

17. Although, I acknowledge that the respondent on page 4 of their submission elaborate that HVE Healthcare Assessments (HVE) should have an opportunity to make submissions on this matter as they are an affected party, the way the Order reads now I do not know if HVE is in fact the third party is that is holding this propriety information. Therefore, on my plain reading of the Second Order, the information being requested is from the respondent insurer who is clearly a party to these proceedings. It does not refer to any third party or non-party by name or otherwise.

18. Notwithstanding my finding that this issue, the way it is framed before me now pertains to a request for production from the respondent as a party to these proceedings (and not non-party). The request therefore must conform to the Tribunals rules of disclosure as they pertain to parties.

Disclosure Rules

19. The Tribunal’s Rules of Practice address the disclosure obligations of parties in Rule 9. Specifically, Rules 9.1 and 9.3(e) state:

DISCLOSURE

9.1 DISCLOSURE—GENERAL

The Tribunal may at any stage in a proceeding, including prior to a case conference, order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.

9.3 TRIBUNAL ORDER FOR DISCLOSURE

A party may seek an order from the Tribunal at any stage of the proceeding ordering a party to:

(e) Disclose any document or thing the Tribunal considers relevant to the issues in dispute.

20. My reading of these two provisions is that I need to determine two questions:

(i) whether the various documents or things identified by the respondent are “relevant” to the matters at issue in the proceeding; or (ii) whether further disclosure or particulars are required for “a full and satisfactory understanding of the issues in the proceeding”.

Documents or things relevant to the issues in dispute

21. It is clear that the party seeking production must establish a nexus between the document or thing sought and the issue in dispute before the tribunal. The main substantive issue in this case is whether the applicant’s injuries are predominantly minor subject to treatment within the Minor Injury Guideline? The applicant participated in a physician’s assessment by Dr. Alikhan and orthopaedic assessment of Dr. Yee.

22. In submissions, the applicant’s representative states that expert witnesses are required to be independent and provide trier of fact evidence that is fair, objective and non-partisan. I agree. However, I fail to see how information about how many times a particular assessor has been retained by an insurer or how much each report cost are relevant at this stage to the issues and would assist the applicant in satisfying that his injuries are not minor or that the proposed treatments are reasonable and necessary. It is not enough to simply raise impartiality as a potential issue; one must explain why the requested information is relevant to the very issues before the Tribunal. Without a clear connection between the requested document or information file and the issues in dispute, the proposed evidence lacks relevance.

23. The applicant also has not included any evidence of how she would be prejudiced by proceeding to a hearing without that information. The general statement that the lack of independence or impartiality on the part of an expert speaks to the admissibility of that experts’ testimony is not enough. The applicant must provide some threshold evidence of assessor bias. Here none exist.

Particulars and full and satisfactory understanding of the issues in the proceeding

24. At paragraph 4 of the submission, the applicant’s representative states that she seeks particulars regarding the business relationship between Drs. Alikhan/Yee and the respondent.

25. Under the heading Disclosure – General, Rule 9.1 allows the Tribunal at any stage in a proceeding order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.

26. In my view this rule is more general than Rule 9.3(e) because it also specifically uses the word “particulars”. “Particulars” are not defined in the Tribunal Rules or the SPPA. Particulars are “details, explanations, or clarifications of matters, such as the grounds for a party’s case, the remedy or decision the party is seeking, pieces of evidence, or the facts upon which the party relies.”¹

27. The Tribunal has not previously address the meaning of “particulars” in the context of a disclosure request under its Rules. In Ontario Public Service Employees Union v Ontario (Liquor Control Board of Ontario), 2013 CanLII 18488 (ON GSB)², the Grievance Settlement Board held that arbitrators have consistently distinguished between particulars, the material facts that a party intends to rely on, and the disclosure of the evidence that it will introduce to prove those facts. Where particulars and disclosure or production are sought, they are treated as distinct requests and separate orders are made for each.

28. Here, I do not see how information about the number of times an assessor has been retained by an insurer or how much each report cost are particulars in the sense of material facts that a party intends to rely on, or details, explanations, or clarifications of matters. Moreover, as required by Rule 9.1, I also do not see how this information (even if I regarded it as “particulars”) is necessary for a full and satisfactory understanding of the issues in the proceeding. The issues here are clear and straightforward and compelling medical evidence will be required from the applicant that the claimant’s injuries are not minor. Therefore, in my view, the requested particulars regarding the business relationship between the doctors and the respondent is not permitted under Rule 9.1.

29. As a final issue, the applicant submits that the requested particulars fall within those contemplated in Mamado v. Fridson³, Calvo⁴ and White Burgess. I do not read these cases in the same way. Those cases deal with the testimony/cross examination of medical experts at the examination/trial stage and not requests for

disclosure prior to the hearing in a tribunal setting. I agree with the respondent that if the applicant’s purpose is to impugn the objectivity if an expert, it seems to me, that the more appropriate forum would be to do that so at a live hearing, or a qualification stage of the hearing, and not a preliminary issue hearing in writing where there is no 6 opportunity to cross examine a witness and test their evidence or credibility including

any potential influences or conflicts.

30. In this case, I note that the Tribunal Order dated July 4, 2017, lists Dr. Alikhan and Dr. Yee as the expert witnesses for respondent. If they are called, as the order anticipates, the applicant will have right to cross examine them or object to their qualifications or impartiality. The applicant can also utilize the summons provisions of Rule 8 of the Tribunal Rules.

ORDER

31. In these circumstances, the applicant’s request for the production of particulars, namely, confirmation of the number of reports completed by Dr. Alikhan and Dr. Yee over the last three years for the respondent and the amount paid for each report is denied.

Date of Issue: October 18, 2017

_____________________

Cezary Paluch

Adjudicator

Footnotes

1. 1A Manual for Ontario Adjudicators and Regulators, The Society of Ontario Adjudicators and Regulators, 2015 ed. p.75.
2. 2Ontario Public Service Employees Union v Ontario (Liquor Control Board of Ontario), 2013 CanLII 18488 (ON GSB) para. 21.
3. 3Mamado v Fridson, 2016 ONSC 4080.
4. 4Alladina v. Calvo, 2014 ONSC 2550