Court File and Parties
Tribunal File Number: 16-002744/AABS
Case Name: 16-002744 v Optimum Insurance Company
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:
M. T.
Applicant
And
Optimum Insurance Company
Respondent
Decision on a Written Motion
Adjudicator: Robert Markovits
Appearances:
Counsel for the Applicant: Charles Gluckstein
Counsel for the Respondent: Joan Takahashi
OVERVIEW
Case conferences were conducted on December 5, 2017 and December 12, 2017. Both parties consented to a hearing, part in writing and part in person. It was agreed that all issues in dispute except for the claim for attendant care benefits would be held in writing. The attendant care benefit would be conducted in person.
An oral in-person hearing was originally scheduled for June 12, 2017 to decide whether the applicant is entitled to:
a. Ongoing attendant care benefits,
A written hearing was originally scheduled for June 13, 2017 to decide whether the applicant is entitled to:
a. Outstanding medical benefits;
b. Outstanding balance of a rehabilitation benefit;
c. Case management services; and
d. Interest on any overdue payment of benefits.
On April 17, 2017, the applicant narrowed the issues in dispute to:
a. Ongoing attendant care benefits,
b. Outstanding medical benefits,
c. Outstanding balance of a rehabilitation benefit.
The written and oral hearing dates have been changed respectivley to July 10, 2017 and July 11, 2017.
ORDER SOUGHT
During the case conference process, the respondent submitted that the appplicant produce for the hearing complete clinical notes and records from a variety of medical practioners and providers. In response, the applicant noted that request was unjustifiable at this stage of the process especially because the respondant did not ask for these documents before the case conference. The applicant also noted that the denial of the benefits were made without these documents.
On April 13, 2017, the respondent filed a motion seeking an order for:
a. The production of 36 documents including reports by health care providers, assessment reports, employment records and clinical notes and records from various health care providers and therapists.
b. The respondent also seeks to prevent the applicant from relying on any evidence by any health provider who has not produced their updated clinical notes and records.
c. Finally, the respondent seeks an order that the date for the in-person hearing be struck if the applicant fails to fully comply with the order.
The respondent states in their motion that outstanding production requests are relevant to the issues to be addressed at the hearing. The respondent relies on the phrase “any other relevant documents as necessary” in the Order made by the case conference adjudicator dated December 23, 2016.
The applicant responds to the motion and asserts that she has exchanged all the documents that are relevant to the issues in dispute and has complied with the production order as described in the case conference report dated December 23, 2016.
RESULT
Having considered the parties’ submissions, I decline to order the production of documents requested. Since the last two requests flow from the first, there is no need to make a decision on the other two requests.
ANALYSIS
I am not persuaded by the Respondent’s arguments that the documents requested are relevant.
According to Rule 14.2 of the Licence Appeal Tribunal Rules of Practice and Procedure, (the Rules), the purpose of the case conference is to direct the parties to consider:
a) The settlement of any or all of the issues;
b) Facts or evidence that may be agreed upon;
c) The identification, clarification, simplification and narrowing of the issues and whether further particulars are required;
e) Disclosure and the exchange of documents, including witness statements and expert reports;
l) Any other matter that may assist in a fair and efficient resolution of the issues in the proceeding.
The case conference is the vehicle by which the hearing is structured. It informs the parties on how matters should proceed at the hearing.
I make note of the Case Conference Report of December 23, 2016 and the Order of December 23, 2016. In paragraph 23 of the Case Conference Report the adjudicator clearly and precisley enumerated 16 documents the applicant agreed to or undertook to submit to the respondent and the Tribunal. The adjudicator also clearly states what documents the applicant will have to produce and their production dates. There were only two productions enumerated by the adjudicator. Paragraph 24 of the Case Conference Report and 17 (a) of the Order indicate that the applicant will produce documents from North Bay Hospital and Health Service North and the 2013 patient/ambulance report.
At the end of those paragraphs the adjudicator adds the phrase “all relevant documents as necessary”. The respondent argues that that phrase entitles the respondent to the production of documents they list in the Production Chart submitted with the Motion. The phrase “all relevant documents as necessary” appears as part of the paragraph dealing with the production of documents from the hospital and ambulance reports.
I acknowledge there may be ambiguity in the phrase “all relevant documents as necessary”, but when read in context of the complete Case Conference Report and Order, and I make note that the adjudicator made the effort to list what documents the applicant undertook to exchange with the respondent, I find on a balance of probabilities that the phrase refers to the reports from North Bay Hospital and Health Service North and the 2013 patient/ambulance report only. This especially true when I consider the fact that the respondent had denied the benefits in dispute prior to obtaining the medical records they are now requesting.
I find that the respondent has failed to answer, in her motion and in her responding submision, why the documents requested are relevant. If the respondent felt that these documents were important, she had the opportunity to bring the issue up at the case conferences of December 5, 2016 and December 12, 2016. It is not enough to say the documents are relevant; one must explain why they are relevant.
I find that it is not open to the respondent to seek medical records or other documentation to justify previously denied benefits.
Finally I note that the instructions on the Notice Of Written Motion Hearing inform the party requesting the motion to include the law it relied on. The respondent has not made any reference to case law that supports their request.
COSTS
The applicant requests the costs of preparing its submissions on this issue. The parties may deal with the issue of costs in their closing submissions at the hearing on the merits.
CONCLUSION
For the above mentioned reasons the motion is denied.
Released: June 5, 2017
___________________________
Robert Markovits, Adjudicator