Tribunal File Number: 17-001476/AABS
Case Name: 17-001476 v Unifund Assurance 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:
Annie Chen
Applicant
and
Unifund Assurance Company
Respondent
Amended Decision on a Motion
Order made by: Eleanor White, Vice-Chair
Representative for the Applicant: Nick Hamilton, Counsel
Representative for the Respondent: Mannanah Duval, Counsel
Heard by Telephone June 17, 2017
Background:
This dispute involves a minor female who was injured in a motor vehicle accident on April 5, 2016. Her mother retained counsel and made an application to the Licence Appeal Tribunal (“Tribunal”) on her behalf. The applicant applied to the Tribunal for dispute resolution to resolve issues of the child’s entitlement to various benefits including the amount of attendant care she requires, transportation costs to treatment facilities as well as rehabilitation benefits including residential moving costs and rent differential.
An in-person hearing in this matter is scheduled for September 27 and 28, 2017.
Following the case conference the applicant brought a Motion for an Order compelling the respondent to produce the following documents:
i All adjuster log notes, electronic and hand written up to the date of the applicant’s application to the Licence Appeal Tribunal; and
ii Copies of all letters written or communications by the respondent to third parties regarding the applicant’s AB claim, including but not limited to service providers, treating physicians and IME assessors.1
ARGUMENTS
The applicant states in her notice of motion that the documents she seeks are relevant and necessary to [the applicant’s] case as they speak to the Respondent’s decision making and reasoning on the specific benefits at issue and do not fall under solicitor-client privilege as the request is limited in scope to the period before [the applicant filed her] application for mediation.2
The Case Conference Report and the Order arising from the May 18, 2017 case conference, made no mention of the request for adjuster’s log notes or correspondence between the respondent and the specified clinical providers or assessors. The report states that the parties required no order regarding disclosure.
An affidavit of Matthew Chimko, law clerk at the office of the counsel for the applicant states that he had requested, by letter, the adjuster’s log notes and the respondent’s correspondence to third party service providers, treating physicians and IME assessors from the respondent on April 18, 2017 and again on April 26, 2017. This was prior to the case conference in this matter.
In a letter from the respondent to the applicant, dated May 1, 2017, the respondent specifies that it did not reject the request for adjuster’s log notes, but asked the applicant to explain the justification for her request as well as the authority upon which she was relying, that would support the necessity of producing the requested records.
The applicant, in the Notice of Motion directed me to decisions from the Financial Services Commission of Ontario (FSCO) that found (1) third party medical documents to be presumptively relevant3 and (2) adjuster’s notes to be prima facie relevant to the determination of a dispute over benefits arising from an accident.4
The respondent submitted an affidavit from its counsel, Mannanah Duval, in response to the Notice of Motion. The affiant confirmed the history of correspondence between the parties as well as further correspondence from the applicant dated June 8, 2017, in which they repeated the request, again without adequately responding to the respondent’s position set out in its May 1, 2017 letter, to be advised of the grounds on which the request is being made. A telephone conversation between the parties occurred the following day and the respondent reiterated its position.
During the hearing, the respondent agreed to produce to the applicant any correspondence of referrals they have sent to third party service providers, treating physicians and IME assessors. The only remaining issue in this Motion is the production of adjuster’s log notes.
The applicant reiterated her position on the disclosure of the disputed records. Referring to the case law cited in the Notice of Motion, she stated the adjuster’s notes are considered presumptively relevant up to the date of the application to the Tribunal. Furthermore, she argues, with respect to the Campeau v. Liberty Mutual Insurance Co., [FSCO A00-000522, March 21, 2001] decision that the onus is borne by the respondent to show why it will not produce the records or why the notes are not considered presumptively relevant in this case.
The applicant’s request for log notes is based on his assertion that the Explanation of Benefits (OCF-9) is insufficient. The applicant asserts that the OCF-9 is not sufficient to explain why the “substantiated documents provided by the applicant have given rise to the denial”. The applicant states that her request for the records is based on a desire to know the internal decision-making process which is applied to the approval of the benefits.
The respondent acknowledged that the Tribunal is not bound by FSCO decisions and that these requests are usually discussed at case conferences. I agree.
The respondent submits that the possibility of unreasonable behaviour should be in issue from the beginning of the process. It characterizes the request as a fishing expedition. It submits that the applicant needs to allege ‘bad faith’ before requesting the adjuster`s log notes. The respondent argues that the applicant has not raised an award (or “special award”) as an issue before the Tribunal related to allegations that the respondent unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664.
The respondent further argues that it has been transparent in its production of Insurer
s Examination reports and all other relevant documentation; that the adjusters log notes are confidential to the respondent`s daily business and the applicant has, on a balance of probabilities, failed to demonstrate any need for their production.
Analysis
In the Notice of Motion and up to the date of the hearing, the applicant has maintained her position that she wanted to know how the respondent makes their decisions and that in order to do so, she was entitled to the disclosure of the adjuster’s log notes and the correspondence between the respondent and the third parties involved in the file.
What opportunities are available for an applicant to seek this disclosure within the proceedings of the Tribunal?
The Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, version 1 (April 1, 2016) speak, in Rule 14.2, to the scope of case conference subject matter the member may direct. Among the matters a member may consider are:
(e) Disclosure and the exchange of documents, including witness statements and expert reports; and
(k) Motions, provided parties have complied with the requirements of this Rule and Rule 15, or otherwise on consent of the parties or Order of the Tribunal;
As above, in Rule 14.2 (e) and (k) there is ample direction for the member to have discussed the request for adjuster`s log notes. Common practice in preparing for a hearing would encourage discussion regarding the exchange of outstanding documents or reports and a discussion of any motions being considered by either party.
I reviewed the documents arising from the case conference and did not find any request for an Order for either outstanding documents or any other production, in particular no mention of adjuster’s log notes.
From the records it is apparent that the applicant first raised the issue of disclosure of adjuster’s log notes with the respondent in correspondence and subsequently in her Notice of Motion. The remaining motion before the Tribunal is whether to order the disclosure of the adjuster’s log notes in this matter and on what basis.
Pursuant to the LAT Rules of Practice and Procedure, a party may seek an order for disclosure on the basis of relevance. Rule 9.3 (e) states that a party shall ‘disclose any document or thing the Tribunal considers relevant to the issues in dispute’.
The applicant relies on Campeau v. Liberty Mutual Insurance Co., [FSCO A00-000522, March 21, 2001] to establish presumptive relevance of the adjuster’s log notes and challenges the respondent to show why this should not apply to this case. The respondent has not rejected the request but has asked for reasons for the disclosure of the log notes. I agree that the Tribunal is not bound by FSCO decisions.
I have chosen to look at the broader circumstances of this matter. The applicant is a minor, catastrophically injured. The substantive issues in dispute to be determined on September 27 and 28, 2017 include attendant care benefits and various medical and rehabilitation benefits.
The test for disclosure is relevance of the log notes to the issues at hand. The applicant has indicated that he feels the OCF-9 did not provide a sufficient explanation. As such, the applicant expressed a need to better understand the denial of the disputed benefits, in the face of what they consider substantiated evidence.
The mandate of the Tribunal includes the aspect of proportionality, meaning that we must consider the mechanisms we apply to a proceeding to ensure responsible and fair attention to issues. This notion of proportionality can also be applied here, when determining relevance. The adjuster’s log notes are primarily for internal communications, however are not secret documents. It is difficult to argue against the relevance of log notes arising from the consideration of the circumstances of the accident and the impairments of the insured in the determination of entitlement to benefits. I understand that the respondent is also allowed to redact parts of the notes that would be privileged to the insurer. When balanced with the request from a minor child who is catastrophically injured for clarity of process, I consider the request is proportionally fair in that the disclosure is deemed relevant to the proceedings.
RESULT
- I order that the respondent produce the adjuster’s log notes (redacted for privilege) from the accident benefit file in this matter to the applicant forthwith.
Released: August 16, 2017
____________________ Eleanor White, Vice Chair
Footnotes
- The respondent agreed during the hearing to produce the requested correspondence in issue (ii) of the motion.
- Annie Chen and Unifund Assurance Company, Notice of Motion paragraph 3.
- Al-Obaidi v. Allstate Insurance Co. of Canada [FSCO P99-00009, May 2, 2000
- Campeau v. Liberty Mutual Insurance Co., [FSCO A00-000522, March 21, 2001]