X.L. v. Unifund Assurance Company, 2018 CanLII 95583

Safety, Licensing Appeals and Standards Tribunal Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto, ON M7A 1N3

In Person Service: 20 Dundas St. W., Suite 530, Toronto, ON M5G 2C2

Tel:

416-314-4260

1 800-255-2214

TTY:

416-916-0548

1 844-403-5906

FAX:

416-325-1060

1 844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2

Tél. :

416-314-4260

1 800-255-2214

ATS :

416-916-0548

1 844-403-5906

Téléc. :

416-325-1060

1 844-618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: D. Stephen Jovanovic, Member

Date: October 4, 2018

File: 17-008769/AABS

Case Name: X.L. vs. Unifund Assurance Company

Written Submissions By:

For the Applicant: Ashu Ismail

For the Respondent: Sarah Deol

Overview

1. This request for reconsideration arises from an order of the Tribunal denying the respondent’s, Unifund Assurance Company (“Unifund”), request for the applicant, X.L., to produce clinical notes and records of every doctor who he had seen after the accident. Unifund now challenges the Tribunal’s decision and requests an order that X.L. produce the clinical notes and records in dispute.

2. Pursuant to Rule 3.1 of the Tribunal’s Rules of Practice and Procedure (the “Rules”), the Executive Chair varied Rule 18.1 and delegated to me the authority to consider this request for reconsideration in order to ensure its efficient and timely resolution.

3. As explained below, I grant this request for reconsideration.

The Facts

4. The parties participated in a case conference on April 4, 2018, during which Unifund requested the production of the clinical notes and records of every doctor listed on X.L.’s decoded OHIP summary whom he had seen after the accident – a total of 29 doctors. Unifund argued these documents were relevant because the related doctor’s visits took place after the accident. Unifund also undertook to pay for the invoices related to their production.

5. X.L. did not dispute the relevance of the clinical notes and records, but argued their production would be disproportionate as the majority of these records would likely be included in the records from Trillium Hospital which he had already agreed to provide.

6. The Tribunal accepted X.L.’s position and denied Unifund’s production request. The Tribunal stated it would be excessive to order X.L. to produce the clinical notes and records from all 29 doctors considering that the majority of these documents would likely be included in the records from Trillium Hospital.

Decision and Reasons

7. I grant Unifund’s request for reconsideration for two reasons.

8. First, as Unifund submits, the relevance of the clinical notes and records was not in dispute. To deny the disclosure of relevant records would be prejudicial to Unifund. Second, Unifund had advised that the clinical notes and records of 18 out of the 29 physicians are not included in the records of Trillium Hospital.

9. I agree with Unifund that each claim has its own specific facts and the notes and records of the 29 physicians X.L. saw post-accident are relevant, under the specific circumstances of this case. I do not accept X.L.’s argument that asking him to produce these documents will be disproportionate. In my view, procedural fairness as set out in 18.2(a) of the Rules, requires an applicant to make reasonable efforts to obtain physicians’ records. In this case, the prejudice to X.L. is minimal, especially since Unifund has undertaken to pay for the invoices related to the production of the clinical notes and records.

Conclusion

10. Unifund’s request for reconsideration is granted.

11. X.L. will request and thereafter produce the clinical notes and records of the 18 physicians, not included in the records of Trillium Hospital. A list of these physicians is attached to this decision as Schedule A.

12. Unifund will pay for the invoices related to the production of the clinical notes and records pursuant to its undertaking.

13. A new case conference will be scheduled as soon as practical to address production timelines and other procedural issues.

D. Stephen Jovanovic

Associate Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: October 4, 2018

Schedule A: The List of Physicians whose Clinical Notes and Records are not Included in the Records of Trillium Hospital as Provided in Unifund’s Request for Reconsideration

1. Dr. Johnathan Marcus, General Practitioner;

2. Dr. George Dimitrios Oreopoulos, General Surgeon;

3. Dr. Milad Ben Issa, Internal Medicine;

4. Dr. Harpeet Upeneja, Internal Medicine;

5. Dr. Dilip Wali, Internal Medicine;

6. Dr. Mohamed Al Sawi, Nephrology;

7. Dr. Fayad Hamideh, Rheumatology;

8. Dr. Andrew Lui, Internal Medicine/Nephrology;

9. Dr. Al-Shamsi Humajd, Oncologist;

10. Dr. Osama Almogbel, Cardiologist;

11. Dr. Muhammad Iqbal, Internal Medicine;

12. Dr. Kehinde Makinde, Internal Medicine;

13. Dr. Istvan Sekely, General Practitioner;

14. Dr. Bruce Merrick;

15. Dr. Cheng Wang;

16. Dr. Alwyn Egbert;

17. Dr. Inderbir Singh, Cardiologist; and

18. Dr. Michael Wood, Orthopedic Surgeon.