Z. Z. v. Wawanesa Mutual Insurance Company, 2018 CanLII 76698

Date: 2018-02-26

Tribunal File Number: 17-007223/AABS

Case Name: 17-007223 v Wawanesa Mutual 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:

Z. Z.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

Motion Decision

Order Made by: Samia Makhamra, Member

Date of Order: February 26, 2018

MOTION

1On February 22, 2018, the respondent brought a Notice of Motion for an order requiring BurnCo Mfg to produce the complete employment file of the applicant, Z. Z., including but not limited to, all travel expenses submitted from August to December 2016.

2A case conference was held on February 12, 2018, during which the applicant agreed to the respondent’s request to bring a motion on February 22, 2018 for third party production.

Analysis

3The Tribunal’s authority to order production from a third party is found in s. 12. (1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990. CHAPTER S.22., which states:

“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..”

4If the Tribunal can by summons compel a third party to produce at hearing documents in their possession, can the Tribunal order the documents to be produced prior to the hearing? This has been addressed by the Ontario Court of Appeal in Ontario(Human Rights Commission) v. Dofasco Inc.¹ Although the Court indicated the point was not argued and they expressed no final opinion, the next paragraph provides useful guidance.

5In paragraph 51 of the decision the Court wrote to produce documents at hearing would inevitably lead to adjournments if they are produced for the first time at the hearing. The court made reference to s. 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.”

RESULT

6I order that the complete employment file from BurnCo Mfg of the applicant, Z. Z. be produced, including but not limited to, all travel expenses submitted from August to December 2016.

7A summons can only be served on an identified person. I leave it to the respondent to provide the Tribunal the required names in its request for summons to obtain the files.

8Lastly, while consent from the other party is not required², I note that the applicant is in agreement with this order.

Footnotes

1. 12001 CanLII 2554
2. 2Rule 8 of the Tribunal’s Rules of Practice and Procedure provides that the Tribunal may issue a summons at the request of a party - no mention of consent requirement.