Court File and Parties
Tribunal File Number: 17-008769/AABS
Case Name: 17-008769 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:
Applicant
Applicant
and
Unifund Assurance Company
Respondent
SUPPLEMENTARY ORDER TO THE CASE CONFERENCE ORDER OF APRIL 12, 2018
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Feven Tefferi, Counsel Ashu Ismail, Counsel
For the Respondent: Margaret Morrison, Claims Adjuster Sarah Deol, Counsel
OVERVIEW
1The applicant was involved in an automobile accident on December 11, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference on April 4, 2018. During the case conference, a dispute arose about whether the respondent must provide all of its surveillance evidence of the applicant even if it does not intend to rely on any at the hearing. All other procedural matters were resolved. I ordered that the parties file written submissions on the production of surveillance, as it was a relatively novel argument and because the respondent had not received advance notice of the request. On April 12, 2018, I issued a case conference report and order confirming the rulings made and including the schedule for submissions on the production of surveillance. Having now received those submissions, this is a ruling on that dispute.
ISSUES
3The issues before me that I must decide are:
i. If any surveillance of the applicant exists, must the respondent produce to the applicant a copy of all tapes, photographs, notes of the investigators, and any correspondence or letters of instruction regardless of whether the respondent intends to rely on it or not at the hearing?
4To answer that question, I must address the following questions:
i. Is the surveillance evidence relevant to the issues in dispute?
ii. If yes, then, is the surveillance evidence subject to litigation privilege?
RESULT
5Having reviewed the parties’ submissions, my decision and reasons are as follows:
i. I find that the surveillance evidence is relevant to the issues in dispute.
ii. In this case, the surveillance evidence is protected by litigation privilege. The respondent is not required to disclose the surveillance to the applicant unless it intends to rely on the evidence at a hearing.
POSITION OF THE PARTIES
6The applicant’s submissions focus on the relevance of the surveillance to the issues in the proceeding. If the respondent elected not to rely on it at a hearing, then the applicant would like to rely on it as it would likely be helpful to the applicant’s case. The applicant argues that litigation privilege cannot apply to the surveillance because the dispute process before the Tribunal is not “litigation”.
7The respondent submitted that they would provide surveillance only if they intend to rely on it at the hearing.
8The respondent contends that there is a basic rule that documents which are subject to privilege are not producible, and that surveillance which it does not intend to rely on is not relevant and is also protected by litigation privilege.
9The respondent submits that any surveillance obtained after the applicant filed her application to the LAT was prepared for the dominant purpose of litigation and is therefore privileged. It submits that a dispute before the LAT is “litigation” for the purposes of litigation privilege.
REASONS
10This analysis requires balancing full and fair disclosure of relevant documents on one hand, against the need to protect documents prepared for the dominant purpose of litigation, on the other.
Relevance
11The dispute before me is governed, in part, by the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) [the “LAT Rules”], because this application was filed at the Tribunal on December 13, 2017.
12Unlike the Dispute Resolution Practice Code, which governed the previous dispute resolution process at FSCO,1 the LAT Rules are silent with respect to surveillance.
13Rule 9 of the LAT Rules governs production of documents and disclosure requirements. Sections 9.2(a) and (c) and 9.3 (a) and (c) all provide that disclosure is required only where a part intends to rely on the evidence at issue. Pursuant to Rule 9.3(e), however, the Tribunal may order disclosure of any document or thing that it considers relevant to the issues in dispute, while Rule 9