RECONSIDERATION DECISION
Before: Heather Trojek, Vice-Chair
File: 18-001418/AABS
Case Name: P.J. v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Beatrice Sze, Campisi Law
For the Respondent: Frank Benedetto, Flaherty McCarthy LLP
OVERVIEW
1This request for reconsideration was filed by the respondent. It arises from an interlocutory decision issued following a case conference in which the Tribunal ordered that a) the respondent provide copies of the un-redacted adjuster’s log notes to the applicant; and b) the log notes be provided prior to the applicant being required to provide particulars of her claim for an award1.
2The respondent requests that the Tribunal’s order be varied to reflect that the applicant requested and the respondent agreed to provide the log notes redacted for information relating to reserves2, litigation privilege and solicitor-client privilege.
3The respondent further requests a reversal of the Tribunal decision to order production of the log notes prior to the applicant providing particulars of her claim for an award.
4The applicant requests that the Tribunal’s orders regarding the provision of adjuster’s log notes be upheld and remain as reflected in its written order.
5More specifically, the applicant submits that she should not be required to provide particulars of her claim for an award prior to the respondent being required to provide the log notes.
6Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
7The Tribunal’s order is varied to stipulate that the adjuster’s log notes be produced up to the date the applicant filed her application with the Tribunal and be redacted for reserve information, litigation privilege and solicitor-client privilege.
8The respondent’s request that the Tribunal’s order be varied to require the applicant provide particulars of her claim for an award prior to the production of log notes is dismissed.
FACTS
9The applicant was involved in an accident on December 19, 2015. After being denied certain benefits the applicant submitted an application to the Tribunal. In an amended application, she made a request for an award because the respondent unreasonably withheld or delayed payment of benefits.
10The parties participated in a case conference on July 23, 2018 and the matter has been scheduled to proceed to a hearing commencing on December 10, 2018. With the consent of the parties the December 10, 2018 hearing has been adjourned.
11The Tribunal’s written order dated August 20, 2018, states that on or before November 16, 2018, the respondent must provide the adjuster’s log notes to the applicant and on or before the same date the applicant shall provide particulars of her claim for an award to the respondent.
12The respondent submits that the written order does not reflect the actual consent order made by the Tribunal at the July 23, 2018 case conference. It states that at the case conference the Tribunal verbally ordered, with the consent of the parties, that the respondent provide the applicant with the adjuster’s log notes subject to redactions for the reserves and privilege. The applicant was ordered to provide particulars of the claim for an award thirty (30) days after being provided with the adjuster’s log notes.
13The applicant agrees with the facts as outlined in the respondent’s Request for Reconsideration. In her submissions the applicant does not consent to the respondent’s request regarding redactions but instead argues, contrary to the request she made at the case conference that the adjuster’s log notes should not be subject to redactions on reserves.
ANALYSIS
Reconsiderations under Rule 18 and Corrections under Rule 17
14Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2. Under Rule 18.2, one or more of the following four grounds needs to be established:
a. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision,
c. the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,
d. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.
15Associate Chair J. Batty, in 17-002160 v RBC Gen. Ins. Co., 2018 CanLII 83519 (ON LAT), explained that the rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution. Still, reconsideration is only warranted in cases where an adjudicator has made a significant legal mistake or [violated the rules of natural justice or procedural fairness…] preventing a just outcome.
16The type of error the Tribunal made in this case is not a ground for reconsideration under the Tribunal’s Rules. It was an administrative or typographical type of error which is best of addressed under Tribunal Rule 17 of the Common Rules of Practice & Procedure.[1] Rule 17 states that the Tribunal may at any time correct a typographical error or clarify an order or decision that contains a misstatement or ambiguity.
17Instead of filing a Request for Reconsideration, the most expeditious and cost-effective course of action would have been to bring a motion requesting that the Tribunal’s order be amended to correctly reflect what was verbally ordered by the case conference adjudicator.
18I did not find it helpful that the applicant reneged on the agreement that the adjuster notes would be produced subject to redactions. In a case such as this, the reconsideration process should not be used by parties to change positions to which they consented because an order requires a simple clarification. This is an inefficient use of the Tribunal’s and parties resources.
19Rather than sending this issue back to the case conference adjudicator, I order the respondent provide the applicant with the adjuster’s log notes, subject to redactions for reserves, litigation privilege, and solicitor-client privilege. As it has become well established that litigation privilege is triggered by the filing of an application with the Tribunal. I further order that the log notes be provided up until the date that the applicant filed her application with the Tribunal.
20The respondent will provide the above-noted log notes to the applicant within thirty (30) days of receiving this order.
Adjuster’s log notes should be provided before the applicant is required to provide details of her claim for an award
21The case conference adjudicator ordered that the applicant did not have to provide the reasons why she was claiming an award until after the respondent provided her with copies of the adjuster’s log notes. I agree with the applicant’s submissions that the Tribunal did not make a significant error in law when it made this order.
22The respondent argues that providing the applicant with access to the log notes without requiring that she first provide the particulars of her claim for an award is akin to a “fishing expedition”. The production of the log notes, the respondent argues, allows the applicant to access to the documents without first having to establish why they are relevant to her claim, which is an error in law. I do not agree.
23The adjuster’s log notes provide a window into the respondent’s decision-making process, without access to these documents the applicant would be required to argue her case without any context or in the dark. It would be procedurally unfair and unjust to require the applicant to make submissions or argue her case without knowing the contents of the log notes. I therefore find no error in the Tribunal ordering that the adjuster’s log notes be disclosed prior to the applicant providing the particulars of her claim for an award to the respondent.
24The respondent’s Request for Reconsideration on this issue is dismissed.
CONCLUSION
25For the reasons noted above, I dismiss the respondent’s Request for Reconsideration.
26Pursuant to the powers granted to me, I order that within thirty (30) days of receipt of this reconsideration decision the respondent shall provide the applicant with the adjuster’s log notes. The log notes shall be provided from the date the respondent opened its file up until the date that the applicant submitted her application to the Tribunal. The log notes shall be redacted for litigation privilege, solicitor-client privilege and reserves.
27I further order that the applicant provide her particulars regarding her claim for an award within thirty (30) days of receiving the above-noted log notes.
Heather Trojek Vice-Chair Safety, Licensing Appeals and Standards Tribunals Ontario
Released: December 4, 2018
Footnotes
- Because the respondent unreasonably withheld or delayed payment of her benefits pursuant to R.R.O. 1990, Regulation 664.
- Funds set aside by an insurer to pay for the cost of a file.