P.K. v. Unica Insurance Inc.
Tribunal File Number: 17-005397/AABS
Case Name: 17-005397/AABS v Unica Insurance Inc.
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.
And in the matter of a motion brought by Unica Insurance seeking production of evidence
Between:
P.K.
Applicant
and
Unica Insurance Inc.
Respondent
MOTION DECISION
ADJUDICATOR: Christopher A. Ferguson
Vlada Kateryna for the Applicant
Olga Zemlinsky for the Respondent
Heard in Writing: January 17, 2018
BACKGROUND
1On January 9, 2018, the Tribunal ordered a written motion hearing to determine the issues raised in a motion filed by the respondent in this matter under Rule 151.
2The respondent’s motion, dated January 5, 2018, asks me to order the applicant PK to produce a number of documents, which I have described in my order below, some within seven days and others within two days of making an order.
3The respondent insurer’s motion further requests an adjournment of the scheduled hearing pending production of the requested documents.
BACKGROUND
4On November 21, 2017, the Tribunal ordered a hearing in this matter to be held on March 20 and 21, 2018.
5The Tribunal’s Order notes that the applicant undertook, at the case conference of November 8, 2017, to provide the respondent with the following:
a Updated OHIP summary;
b Prescription summaries from 3 years pre-motor vehicle accident;
c Tax returns for the last three years;
d Applicant’s complete Ontario Disability Support Programme file;
e Applicant’s academic file and transcripts from Academy of Learning Career College;
f Particulars of employment and business activities for the last three years, including employment file and records from Homelife Realty Brokerage;
g Particulars regarding claim for award under section 10 of Regulation 664, and
h Particulars of all medical and rehabilitation treatment plans in dispute with account summaries from the providers.
6No due date was set in the Order for exchange and production prior to submissions.
7As noted above, on January 5, 2018, the respondent insurer filed a motion under Rule 15.1 with the Tribunal and on January 9, 2018, the Tribunal issued a notice of written motion hearing to the parties, with direction on submissions.
8The parties duly submitted submissions on the motion before me, and I conducted the motion hearing on January 19, 2018.
DECISION
9The respondent insurer’s motion for the production of specific documents is allowed, with modifications as noted below.
10The request for an adjournment is denied.
ANALYSIS and REASONS
11Rule 3.1 effectively mandates me to facilitate a fair process, allow effective participation by all parties and ensure efficient, proportional and timely resolution of the merits of proceedings before me. That mandate permits me to vary the Rules -- on my own initiative or at the request of a party – to support those goals.
12Rule 9 authorizes me to order the production of particulars or other disclosure at any stage of the proceeding that I consider necessary for a full and satisfactory understanding of the issues in the proceeding.
13The applicant does not contest the respondent’s motion for production of documents with exceptions noted below, nor does she deny her obligation to produce the requested documents.
14The applicant states that she believed that the requested documents were not due until February 8, 2018. She now concedes that belief to be mistaken, but notes accurately that no due date was set in the case conference.
15The respondent insurer’s request that the applicant provide certain documents with two days of a production order is impracticable – I have decided to set a deadline of seven business days for all production and/or evidence of best efforts.
16I agree with the respondent insurer that the particulars of the applicant’s claim for an award under s.10 of Regulation 664 should be provided now, because:
i. She agreed to produce this information at the case conference and has simply failed to meet her commitment to that disclosure.
ii. Her statement that she has already provided “sufficient reasoning” for the request is not borne out by my reading of the documents in her submission.
17The respondent has asked for particulars as to amounts incurred with respect to the medical and rehabilitation issues in dispute, with supporting documentation including account summaries from the providers. It argues that the information provided to date does not provide it with a clear link between treatment plans and costs incurred. The applicant contends that it has produced the only records available and has offered the respondent authorization to get those records itself.
18The applicant states that she “is agreeable to” the respondent insurer’s request for an adjournment in this matter. However, I have decided to deny the adjournment request for the following reasons:
i. My mandate under Rule 3.1 includes ensuring timely proceedings.
ii. My assessment is that the failure to produce the outstanding documents will not unduly prejudice the respondent’s case: it can argue effectively that the missing documents undermine the applicant’s appeal and that the onus on her to prove her entitlements is not met without the missing requested evidence.
ORDER
I order that
19The applicant shall provide the respondent insurer, within 7 business days of the date of this Order, the following documents, if still outstanding:
i. Tax returns with statements of business activities, if self-employed, from 3 years pre-accident to date;
ii. ODSP file;
iii. Particulars as to her employment and/or business activities from 3 years prior to the accident to date;
iv. Particulars as to the basis for the applicant’s claim for an award for unreasonably withheld or delayed payments;
20The Applicant shall provide counsel for the respondent insurer, within 7 business days of this Order, the following documents, if still outstanding:
i. Prescription summaries from 3 years prior to the accident to date, if received;
ii. The academic file and transcripts from AOL College, if received;
iii. Employment file/records from Homelife Realty Brokerage, or records relating to the applicant, if not an employee, if received;
21If the applicant is unable to produce the documents listed in paragraphs 1 and 2 above by the required date, it shall provide proof of additional best efforts in the form of an additional request letter for the outstanding document(s).
Date of Issue: January 23, 2018
Christopher A. Ferguson
Adjudicator