M.J. v. Economical Mutual Insurance Company, 2018 CanLII 142937

Tribunal File Number: 18-005523/AABS

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

Between:

M.J.

Applicant

and

Economical Mutual Insurance Company

Respondent

MOTION DECISION & ORDER

Order made by: Maureen Helt, Vice Chair

Appearances:

For the Applicant: Mr. Lundigram, Counsel Ms. Jarda, Counsel

For the Respondent: Mr. M. Smith, Counsel Ms. Vaillancourt, Adjuster

For the Third Party: Mr. N. Carmichael

Date of Order: May 7, 2019

OVERVIEW

1The applicant was injured in an automobile accident on Saturday, June 5, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the ''Schedule'').

2The applicant was denied certain benefits and, in response, submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute over her entitlement to them.

3A case conference took place on Tuesday, October 30, 2018, and an Order was issued dated November 21, 2018. As part of the November 21, 2018 Order the respondent was ordered to produce among other things, a complete copy of all third party assessment provider’s files with respect to the applicant.

4The respondent requested the documents from the third party assessment provider, SOMA Medical Assessment (SOMA) and was advised by SOMA that there was no order made requiring it to produce information before the hearing and that the Tribunal has no jurisdiction to make such an order

MOTION

5On March 22, 2019, the applicant filed a Notice of Motion requesting that the Tribunal do the following:

i. Make an Order for a summons directing SOMA to produce all documents pertaining to her, including, but not limited to, all notes, emails, summaries on files provided to SOMA by Economical Mutual Insurance Company or its agents; as well as the names and contact information of all persons who reviewed, summarized and communicated with health professionals hired for the applicant’s assessment, along with the instruction letter to the assessor and all reports, draft reports and edits; and

ii. An Order to add J.T., Dr. B. and Dr. S. to the applicant’s witness list.

6The respondent consented to an Order to add the witnesses set out in (ii) above, but took no position with the request for an Order for a summons to be issued against SOMA.

7SOMA filed written submissions opposing the motion with respect to the request for a summons.

8On April 16, 2019, a teleconference motion was held.

RESULT

9The applicant's motion is granted in part. I find that the Tribunal does have jurisdiction to order the following to ensure all relevant documents are produced in the most just, expeditious and fair determination of the issues before the Tribunal:

i. The Tribunal will issue a summons requiring SOMA to produce all documents pertaining to the applicant, Manon Jetté, including but not limited to all notes, emails, summaries on files provided to them by Economical Mutual Insurance Company or its agents subject to any redactions for relevance and privilege. Such production is to be made by no later than May 24, 2019.

ii. The Tribunal will issue a summons for the production of the instruction letter to the assessor and all reports, draft reports and edits subject to any redactions for relevance and privilege. Such production is to be made by no later than May 24, 2019.

iii. The Tribunal dismisses the request for an order for a summons for the production of the names and contact information of all persons who reviewed, summarized and communicated with health professionals hired for the assessment on the basis that this information can be requested through cross examination at the hearing on the merits, if appropriate.

iv. The Tribunal will add J.T., Dr. B. and Dr. S. to the applicant’s witness list.

ANALYSIS

Background

10The issue in dispute in this proceeding is whether or not the applicant has sustained a catastrophic impairment as defined in the Schedule. The applicant and the respondent have both submitted medical documentation with respect to this issue. The respondent takes the position, based on its medical assessments, that the applicant has not sustained a catastrophic impairment.

11As part of the application for benefits process, the applicant was referred to SOMA, pursuant to section 44 of the Schedule, for a catastrophic impairment determination by a team of multidisciplinary assessors. The respondent submits that the section 44 assessments conducted by SOMA resulted in an Executive Summary, dated September 28, 2018, which concluded that the applicant did not meet the test for catastrophic impairment.

12As noted above, a case conference was held in October 2018. Following that case conference, the adjudicator released an Order dated November 6, 2018, requiring the respondent to produce, among other things, the following records:

13A complete copy of all third party assessment provider’s files with respect to Ms. Jetté including but not limited to all notes, emails, summaries on files provided to them by Economical Mutual Insurance Company or its agents as well as names and contact information of all persons who reviewed, summarized and communicated with health professionals hired for the assessment, the instruction letter to the assessor and all reports, draft reports and edits.

14The respondent requested the documents from SOMA. SOMA refused to produce the documents. In its letter dated February 1, 2019 to the respondent, SOMA stated:

15[We] understand that the Order requires Economical to produce documents from its file but that no order has been made purporting to require SOMA to produce information before the hearing (and nor could the LAT make such an Order).

16The applicant then filed a Notice of Motion seeking an order for a summons for production of SOMA’s files as a third party assessment provider.

17SOMA was provided a copy of the motion by counsel for the respondent and requested an opportunity to be heard on the applicant’s motion.

ISSUES

18The request for a summons as against SOMA and order for pre-hearing production of documents from a third party raises two issues which I must determine:

i. Does the Tribunal have jurisdiction to order the production of documents from a non-party and, if so, does that power extend to production of such documents prior to the hearing or is it limited to production at the hearing.

ii. If such jurisdiction exists, either before or at the hearing, are the documents requested relevant to the issues in dispute.

JURISDICTION

19SOMA argues that the Tribunal does not have jurisdiction to make an order for third party production since, if the legislative intent was to provide such jurisdiction, that power would have been enacted explicitly somewhere. In making this argument, counsel for SOMA raised several points including the impact of the Charter of Rights and Freedoms, the Tribunal’s Common Rules Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (Rules) and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, (“SPPA”).

20I set out my findings on each of these below.

The Charter and Section 8

21SOMA, in both written and oral submissions, submitted that it is important to consider the entire legislative scheme to determine the issue of jurisdiction.

22In doing so, SOMA submitted that governmental action is informed by the Charter and that section 8 of the Charter guarantees protection from unreasonable search and seizure. Therefore, in SOMA’s submission, compelling any person to produce documents without express authority needs to be carefully considered. SOMA did acknowledge that an order for third party production without express authority does not amount to a Charter breach.

Tribunal’s Rules

23There is no dispute that the Tribunal’s Rules do not specifically deal with third party disclosure requests.

24SOMA argues that this silence is consistent with the principles of efficiency, proportionality and timely resolution in the Tribunal’s proceedings. SOMA also submits that it is not the Tribunal’s function to adjudicate disputes between parties and non-parties, particularly at the pre-hearing stage. In its view, this would be contrary to the Tribunal’s goals of minimizing costs and eliminating procedural delay.

25The applicant takes the opposite position and submits that it is precisely the principles of efficiency, proportionately and timely resolution that the Tribunal should be able to order pre-hearing production from third parties. In her view, this power is necessary to avoid delay in the proceedings if documents were only produced at first instance at the hearing.

26In looking at the Rules, SOMA argues that the Tribunal’s disclosure powers are clearly set out under Rule 9 and that the Rule only references “parties”. As such, SOMA argues there is no power under the Rules to allow for third party disclosure orders.

27Additionally, while SOMA acknowledges that Rule 8 deals with the power to issue a summons, it argues that the summons power does not give the Tribunal the power to make pre-hearing production orders of third parties.

28The applicant points out that Rule 8.1 allows the Tribunal to issue a summons on its own initiative or at the request of a party and a party may request a summons upon any person providing a brief explanation of the anticipated evidence. The summons applies to any “person” and, as such, clearly envisions that a third party could be summonsed and be required to attend at a hearing and produce at the hearing any documents as set out in the summons.

29The applicant suggests that the summons power in Rule 8.1 should be interpreted liberally. Rule 3.1(b) sets out that the Rules are to be liberally interpreted and applied to ensure efficient, proportional and timely resolution of the merits of the proceeding before the Tribunal. The applicant submits that ordering prehearing production from SOMA would ensure an efficient and timely resolution of the merits and it would be “detrimental” to the applicant to proceed to the hearing without the requested documents.

30After hearing submissions from both the applicant and SOMA with respect to the application of the Tribunal’s Rules, I agree that while there is no express authority in the Rules to order third party disclosure in advance of the hearing, it is not only the Rules which provide the Tribunal with powers, it is also the powers under the SPPA.

[Statutory Powers Procedure Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html)

31The Tribunal derives authority under the SPPA in various ways to determine its own procedures and govern its own processes. Section 2 of the SPPA provides that the SPPA and any rule made by a tribunal under section 25.1 shall be liberally construed to secure the just, most expeditious and cost effective determination of every proceeding on its merits.

32Under section 25.0.1 of the SPPA, the Tribunal may, in its discretion, determine its own procedures and practices and may “make orders with respect to the procedures and practices that apply in any particular proceeding.”

33Section 12 (1)(b) provides that “A tribunal may require any person, including a party, by summons, (b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding.”

34SOMA argues that the SPPA does not empower the Tribunal to order the request for third party productions. In making its argument, SOMA refers to the language of section 5.4 of the SPPA, which allows a Tribunal to make its own Rules with respect to disclosure between parties. By virtue of the fact that section 5.4 does not explicitly provide for disclosure from third parties, SOMA argues that this demonstrates the lack of jurisdiction on the part of the Tribunal to make such an order.

35The applicant, rather than relying on section 5.4 of the SPPA for a third party disclosure order, refers to section 12(1)(b), the summons power under the SPPA. In making its argument, the applicant references two previous decisions of the Tribunal (17-007223 v. Wawanesa Mutual Insurance Company; 17-00777 v. Aviva General Insurance) ¹ wherein adjudicators referenced the Ontario Court of Appeal decision in Ontario (Human Rights Commission) v. Dofasco Inc. (Dofasco). In this case, the Court addressed summons for production in advance of a hearing and although the Court indicated the point was not argued and expressed no final opinion the following paragraph provides useful guidance.²

It is generally agreed that if documents under the control of non-parties are important to the fair and accurate resolution of issues it is preferable that they be produced before the hearing to avoid almost inevitable adjournments if they are produced for the first time at the hearing (see s. 39(4) of the Human Rights Code) and to enable each side to prepare its case more effectively. In this regard. Section 2 of the Statutory Powers Procedure Act (which provides that the Act and rules made under it "shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits") may be of assistance in interpreting s. 5.4(1) (e) in a way that would support pre-hearing disclosure from third parties. This point was not argued and I express no final opinion on it.

36SOMA argues at paragraph 38 of its submission states that: “the idea extracted from Dofasco in both Wawanesa and Aviva is that it is preferable to produce documents in advance to avoid adjournments. However, that very idea was context specific (in that case, section 39(4) of the Human Rights Code), made in obiter, of which no final opinion was expressed, and was commenting on the potential interpretation of section 5.4 of the SPPA.”

37I don’t disagree with SOMA however it is for this very reason why I find that the commentary in Dofasco useful in determining if pre hearing disclosure from a third party can be ordered in this proceeding. While there is no explicit Rule, the commentary from the Ontario Court of Appeal supports the productions of documents in the control of non-parties before the hearing to avoid inevitable adjournments that might otherwise result.

38In reviewing the Aviva and Wawanesa decisions, the Tribunal found that, section 12(1)(b) of the SPPA compels a third party to produce relevant documents and, in light of the legislative scheme discussed above, the Tribunal has the power to order pre hearing production to ensure the efficient, proportional and timely resolution of Tribunal proceedings.

39SOMA argues that the summons power only provides for production of evidence at an oral or electronic hearing. I agree that this is the language set out in the SPPA. However, as set out above, s. 2 of the SPPA provides that the SPPA and rules made under it “shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.”

40This proceeding involves an application for catastrophic determination which involves a complex and difficult analysis of medical documentation. The definition of catastrophic impairment in the Schedule is designed to ensure that the people with the most serious injuries and impairments have access to enhance benefits.

41Section 25.0.1 of the SPPA provides that a tribunal has the power to determine its own procedures and practices and, (a) may for that purpose make orders with respect to the procedures and practices that apply in any particular proceeding.

42For the above reasons, namely the Tribunal’s power over its own procedures and processes and its discretion to determine appropriate procedures for the hearing of applications, including applications for the determination of a catastrophic impairment. I find that the Tribunal does have jurisdiction to make an order for pre-hearing production of relevant documents from SOMA.

RELEVANCE

43At paragraph 4 of its submission SOMA argues that, without any evidentiary foundation to establish a relevant basis, or any nexus between the records sought and the issues in dispute, the production order sought against SOMA is overly-expansive and intrusive.

44SOMA submits that the test for relevance is set in N.Y v. TD Insurance Meloche Monnex, 2017 CanLII 69446:

45The party seeking production must establish a nexus between the information or document sought and the issue in dispute before the Tribunal.

46The above decision was upheld on reconsideration where the test for relevance was articulated as follows:

47The party seeking production must establish the relevance between the materials sought and the dispute before the Tribunal.

48SOMA submits that the applicant has failed to establish a nexus or any relevant basis, between the information sought and the issue in dispute, namely whether the applicant is catastrophically impaired.

49It is the applicant’s position that the test for relevance is a low threshold and the information requested from SOMA is relevant in that it forms part of the information being relied upon by the respondent in denying her claim that she is catastrophically impaired as a result of the motor vehicle accident.

50In considering whether the requested documents are relevant and meet the low threshold test there are a few factors I have considered. First, I note that Adjudicator Driesel in her case conference order issued November 6, 2018, already ordered the production of these documents, albeit by the respondent, not SOMA. Regardless, Adjudicator Driesel would not have ordered the production of these documents had she not determined the documents to be relevant. As such, there is already a determination by this Tribunal that the documents requested by the applicant meet the threshold test of relevance.

51Even if Adjudicator Driesel hadn’t made this determination, I would still find the documents requested to be relevant. To reiterate, the request being made is for the following:

52A copy of all third party assessment provider’s files with respect to Ms. Jetté including but not limited to all notes, emails, summaries on files provided to them by Economical Mutual Insurance Company or its agents as well as names and contact information of all persons who reviewed, summarized and communicated with health professionals hired for the assessment, the instruction letter to the assessor and all reports, draft reports and edits.

53In my view “all third party assessment provider’s files with respect to Ms. Jetté” meets the test for relevance for the following reasons.

54In applying for accident benefits the insurer has the right to have an applicant examined. The Schedule provides the following:

Examination required by insurer

44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. O. Reg. 34/10, s. 44 (1).

55The statutory scheme is that the insurer examination (IE) is set up by the insurance company to determine whether certain treatment requested or incurred by a person injured in a motor vehicle accident is reasonable and necessary.

56In this case, the applicant was statutorily obligated to attend IEs and she had no choice with respect to who her assessors would be, as that decision is made by the insurer.

57The applicant bears the onus of establishing her entitlement to any benefits claimed in the application and, as such, any documentation from the medical assessment facility which arranges her IE’s on behalf of the respondent, in my view, meets the test of relevance. These documents relate to the assessment reports generated which are being relied upon by the respondent to deny the applicant’s claim for entitlement to benefits.

58The applicant argues, and I agree, that the documents requested will provide the adjudicator with a more complete contextual picture of the assessments which may impact the weight that should be given to the respondent’s medical reports.

59SOMA distinguishes the request for production of documents and the request for production of the names and contact information of all persons who reviewed, summarized and communicated with health professionals hired for the assessment. SOMA submits that the release of names and contact information is not only personal information but it is also readily available to the applicants through cross-examination of the witnesses at the hearing.

60The applicant submits that the names and contact information is necessary in order to determine if further summonses are required.

61As set out above, my finding that the third party assessment provider’s files, namely SOMA’s file, are relevant is based on the fact that these documents relate to the assessment reports generated which are being relied upon by the respondent to deny the applicant’s claim for entitlement to benefits. I find that the request for names and contact information for the purpose of obtaining additional summonses is overly broad and not relevant to the issues in dispute in this application.

62For the reasons set out above, I order the following;

a. The Tribunal will issue a summons requiring SOMA to produce all documents pertaining to the applicant, including but not limited to all notes, emails, summaries on files provided to them by Economical Mutual Insurance Company or its agents to be produced on or before noon on Friday May 24, 2019.

b. The Tribunal will issue a summons for the production of the instruction letter to the assessor and all reports, draft reports and edits to be produced on or before noon on Friday May 24, 2019.

c. The Tribunal dismisses the request for an order for a summons for the production of the names and contact information of all persons who reviewed summarized and communicated with health professionals hired for the assessment on the basis that this information can be requested through cross examination at the hearing on the merits, if appropriate.

d. J.T., Dr. B. and Dr. S. are added, on consent, to the applicant’s witness list.

63Except for the provisions contained is this order all previous orders made by the Tribunal remain in full force and effect.

OTHER PROCEDURAL MATTERS

64If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 117-007223 v. Wawanesa Mutual Insurance Company, 2018 CanLII 76698; 17-00777 v. Aviva General Insurance, 2018 CanLII 115664.
2. 2(2001) 2001 CanLII 2554 (ON CA), 57 O.R. (3d) 693.