MK v. Wawanesa Mutual Insurance Company, 2019 CanLII 27909

Citation: MK vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-001879/AABS

Date: January 28, 2019

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:

MK

Appellants

and

Wawanesa Mutual Insurance Company

Respondent

AMENDED MOTION DECISION

ADJUDICATOR:

Christopher A. Ferguson

Appearances:

For the Appellant: Maciek R. Piekosz, Counsel

For the Respondent: Michael Kennedy, Counsel

Heard: In Writing Hearing: November 5, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, MK, was involved in a motor vehicle accident (“the accident”) on November 5, 2014 and sought accident benefits (“benefits”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2MK appealed to the Licence Appeal Tribunal (the “Tribunal”) when his claim for medical benefits was denied by the respondent, Wawanesa Mutual Insurance Company (“Wawanesa”).

3There was a case conference on June 11, 2018. There was a dispute about productions and this written motion hearing was scheduled. The issue before me is whether MK must produce certain records requested by Wawanesa.

4On September 27, 2019, Wawanesa filed its motion seeking production of MK’s medical records and other information, as specified below. MK has responded to Wawanesa’s motion.

MOTION ISSUE

5Wawanesa seeks an order from the Tribunal that MK produce the following records:

1. Documents showing when MK entered into a policy with another automobile insurer subsequent to the accident;
2. Decoded OHIP summary from one year pre-accident to date;
3. The clinical notes and records of Dr. Siroup from one year pre-accident to date;
4. The clinical notes and records of St. Joseph’s Healthcare from one year pre- accident to date;
5. The clinical notes and records of any other medical or treatment facilities from one year pre-accident to date; and
6. All prescription summaries from one year pre-accident to date.

REASONS

6Under section 33.(1)1. of the Schedule, an insured person must provide on request any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The time period for complying is 10 business days.

7Under Rule 9.3(e) a party may seek an order from the Tribunal at any stage of the proceeding ordering [the other party] to disclose any document or thing the Tribunal considers relevant to the issues in dispute.²

8The Supreme Court of Canada has said that there is a “fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained.”³ Wawanesa argues, and I agree, that this principle applies to all legal proceedings.

Background Facts

9The parties have a preliminary issue in this appeal, namely whether MK has a reasonable explanation for failing to submit his claim⁴ with Wawanesa within the time limit prescribed by s.32 of the Schedule. The parties agree that if MK has a reasonable excuse for delay, his claim may proceed and be adjusted.

10It is uncontested that MK submitted his claim on November 3, 2016, two years (less two days) after the accident.

11What is disputed is whether or not the reasons given by MK for his late claim are backed by persuasive evidence.

12On December 15, 2016, MK submitted to an Examination under Oath (EUO), at which time he provided extensive evidence about the accident, his accident-related impairments, and his reasons for any delay in submitting his OCF-1.

13At his EUO, MK gave evidence that he contacted Wawanesa following the accident, and that Wawanesa wanted "nothing to do" with him, advised him that he was not eligible for benefits, and cancelled his claim. MK asserted that he filled out several forms for Wawanesa, but kept no copies of those forms. He indicated that he had received a denial letter from Wawanesa, but his testimony was inconsistent as to whether he had kept it.

14At his EUO, MK stated that he had “got a different insurance company” after his interactions with Wawanesa, and indicated that he did so because Wawanesa had denied his claim for this accident.⁵

15Wawanesa “strongly” denies MK’s claim that it denied him assistance at any time after the accident, and has demanded evidence in support of MK’s claims that he filled out and filed forms with them. It is apparent from both parties’ submissions that such evidence was not forthcoming.

16Wawanesa issued an Explanation of Benefits (“OCF-9”) giving the following reasons for denying MK’s claims:

i. MK’s failure to submit an OCF-1 on time or to provide an explanation for doing so.

ii. A lack of clear evidence that MK actually sustained impairments as a result of the accident, with some evidence to the contrary.

iii. MK’s failure to provide a variety of specific records requested by Wawanesa contrary to s.33 of the Schedule.

17It is in this context that I must determine whether Wawanesa should be able to obtain the documents it seeks from MK.

Wawanesa’s Position

18Wawanesa submits that the sole issue to be considered and determined in this motion hearing is whether or not the documents it requests are reasonably required to determine MK’s entitlement to the benefits he claims.

19Wawanesa asserts that:

i. The requested medical documentation is essential to its ability to tell whether MK in fact suffered injuries as a result of the accident because:

a. It reasonably requires the requested documentation to assess MK’s explanation of the delay in submitting his accident claim.

b. Without this information, Wawanesa cannot be fairly expected to adjust MK’s claim for the cost of an OCF-3, which is in dispute and listed as an issue in MK’s appeal.

ii. The production requested is routine, “normal” and “well-established” and MK’s refusal to meet Wawanesa’s request is by contrast “unusual and borderline unprecedented.”

MK’s Position

20MK argues that Wawanesa’s motion should be denied because:

i. There are no medical benefits at issue in his appeal. He argues that the sole issue is whether or not he submitted an OCF-1 within the prescribed timelines, “and if not, whether he has provided a reasonable explanation for any delay.” He contends that medical records are irrelevant to this issue.

ii. Wawanesa denied MK’s claim based on his failure to submit an OCF-1 within seven days of the accident as required by s.32(1) of the Schedule. Because Wawanesa has not denied MK’s claim for any medical reason, it is not entitled to seek his medical records to use as evidence in defending this appeal.⁶

21MK’s submissions do not address Wawanesa’s request for documents showing the date subsequent to the accident on which MK entered into a policy with another automobile insurer.

FINDINGS: MOTION

22MK must produce the documents enumerated above in the statement of issue. This is because:

i. Contrary to MK’s submission, there is a medical issue in MK’s appeal, which was set out in paragraph [5]i. of the Tribunal’s direction dated July 12, 2018.⁷ Accordingly, Wawanesa is entitled to ask for medical documentation under s.33 of the Schedule, and MK is obliged to produce it.

ii. MK concedes that the specific medical evidence Wawanesa requests is reasonable and necessary to determine his claims for medical benefits. Therefore, I consider the medical information requested to be relevant to the matters in dispute in this appeal within the meaning of Rule 9.3(e). They must be produced.

iii. MK’s arguments are unpersuasive to me because:

a. His assertion that Wawanesa denied his claims based solely on his failure to meet filing deadlines is mistaken: the OCF-9 submitted in evidence clearly shows otherwise, as noted above.

b. He fails to explain why medical information would necessarily be irrelevant to the issue of determining the limitation issue: he does not address the potential for such evidence to speak to his credibility or to reveal potential alternative reasons for the late filing.

c. He points to no rule of evidence or precedent that would support a finding that medical evidence should be considered irrelevant to a limitation issue of the kind raised in this matter.

iv. MK expressly asserted in his EUO that he “got a different insurance company” and gave Wawanesa’s alleged behaviour in denying his claim as the reason he did so. Because this alleged behaviour by Wawanesa forms a core part of his explanation for failing to submit his OCF-1 within the prescribed timelines, I find it reasonable for Wawanesa to ask for information that would indicate the merits of MK’s statement: it speaks to MK’s credibility. MK provides me no reason to think that the requested documentation is irrelevant. I consider the documentary proof of when MK switched insurers to be relevant to the matters in dispute in this appeal within the meaning of Rule 9.3(e). It must be produced.

CONCLUSIONS

23Wawanesa’s motion for production is granted.

ORDER

24MK shall produce all of the documents described in paragraph [5] above by a date to be determined at the case conference currently scheduled for February 6, 2019.

Amended: January 29, 2019

___________________________

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1O.Reg. 34/10.
2. 2All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016.
3. 3M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157, at para 19.
4. 4i.e. his Disability Certificate (“OCF-1”) --
5. 5In answer to questions 595-597 at page 83 of the certified EUO Report
6. 6MK’s submissions expressly state that if Wawanesa accepts his explanation for missing the prescribed deadline, it “would be entitled to production of medical records to permit a reasonable assessment of payable benefits.”
7. 7The issue is whether MK is entitled to be reimbursed the cost of his Disability Certificate (“OCF-3”) in the amount of $139.90 which was denied by the respondent on February 27, 2017.