P.Z. v. Unifund Claims Inc., 2019 CanLII 34619

Tribunal File Number: 18-004786/AABS

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:

P.Z.

Applicant

and

Unifund Claims Inc.

Respondent

MOTION DECISION

Adjudicator: Rebecca Hines

Appearances: Counsel for the Applicant: Erik Winkworth Counsel for the Respondent: Cary N. Schneider

Heard in Writing: November 27, 2018

OVERVIEW

1The applicant was involved in an automobile accident on May 2, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2This matter arises from a case conference conducted on October 16 and 19, 2018. At the case conference, both parties brought motions pertaining to the production of documents and requested that the matter be heard by written hearing. An in-person hearing on the substantive issues is currently scheduled to commence in September 2019. This decision is in response to both motions.¹

ISSUES IN DISPUTE

Applicant’s Motion:

3The applicant brought the following motion:

(i) Is the applicant entitled to the production of adjuster’s log notes on the income replacement benefit (IRB) from the date of the first application to the Tribunal up to the date the IRB was denied, subject to redactions for reserves,settlement discussions and privilege?

(ii) Is the applicant entitled to the production of the respondent’s communications to the insurer examination (IE) assessors with respect to its denial of the applicant’s IRB?

Respondent’s Motion:

4The respondent brought the following motion:

(i) Is the respondent entitled to the production of clinical notes and records (CNRs) that were not used by the respondent to deny the applicant’s benefits? In particular, the CNRs of his family doctor, treating specialist, facilities that treated him and OHIP summary, other than the CNRs of Dr. Szulc from September 10, 2014 to April 11, 2016?

RESULT

5For the reasons that follow, I find:

Applicant’s Motion

(i) The applicant’s motion is granted. I order the respondent to produce the adjuster’s log notes on the sole issue of the IRB between May 22, 2018 to July 25, 2018, subject to redactions for settlement discussions, reserves and privilege. The respondent will provide particulars with respect to the reasons for the redactions. The respondent will also produce its communications to the insurer examination (IE) assessors with respect to its denial of the applicant’s IRB.

Respondent’s Motion

(ii) The respondent’s motion is granted. I order the applicant to produce the requested records from 3 years pre-accident to date, as well as the updated CNRs of Dr. Szulc.

Applicant’s Motion for Production of Adjuster’s Log Notes

ANALYSIS

6The applicant’s motion seeking an order for the production of the adjuster’s log notes and its communications to the insurer examination (IE) assessors with respect to its denial of the applicant’s IRB is granted.

7Although the applicant filed his initial application with the Tribunal on May 22, 2018, the respondent did not deny his IRB until July 12, 2018, and the IRB was not added as an issue in dispute until July 25, 2018. This is the time period of the adjuster’s log notes that the applicant has requested. I agree with the applicant that between May and July 2018, the respondent was still in the process of adjusting its file with respect to the applicant’s entitlement to an IRB and did not deny the benefit for the dominant purpose of litigation.

8Rule 9.1 of the Licence Appeal Tribunal’s Rules of Practice and Procedure² (LAT Rules) and s.15 (1)(2) of the Statutory Powers and Procedures Act³ (SPPA) provides the Tribunal with authority to order the production of any document that is relevant to the subject matter in dispute.

9The applicant submits that he is entitled to subject log notes as he has a right to understand all of the reasons behind the respondent’s decision to deny his IRB. Further, the applicant contends that the respondent was missing important information with respect to his IRB when it made the decision to deny the benefit. Therefore, the adjuster’s notes are relevant to the dispute of the denial of the IRB and his claim for an award.

10The onus is on the respondent to establish why the documents requested are protected by privilege. The majority of the case law submitted by the parties established that at the Financial Services Commission of Ontario (FSCO) and the courts the insurer’s internal accident benefit file was covered by litigation privilege after the insured filed an application for mediation with FSCO. The respondent argued that the same rule should apply to the Tribunal. Therefore, its internal file including the adjuster’s log notes are off limits as of the date the applicant filed an application with the LAT on May 22, 2018.

11The case law submitted consistently highlighted the following two scenarios where privilege applies:

(i) Solicitor Client Privilege: where legal advice is sought confidentiality is permanently protected; and

(ii) Litigation Privilege: communications between the client and the solicitor of record.

12The first category is self-explanatory as it protects any document relating to any communication between solicitor and client. The courts have adopted the following two-step rationale to determine what documents are protected by litigation privilege:

(i) Was litigation a reasonable prospect at the time the document was created?

(ii) Was the dominant purpose for the creation of the document to assist in contemplated litigation?

13I find the respondent has not met its onus in proving that the test of privilege applies to the current records being sought as the majority of its submissions focussed on educating the Tribunal on the case law with respect to privilege and not how the documents requested meet the test.

14While I agree with the respondent that in most cases the rule of privilege apply to its internal file once an application for dispute resolution is filed, the present case is distinguishable as the records sought by the applicant relate to the denial of the applicant’s IRB, which was not in dispute when the initial application was filed with the LAT. Therefore, the log notes sought relate to a new issue and should be disclosed as the respondent was still adjusting its file when it assessed the applicant’s entitlement to an IRB, not preparing for litigation.

15Ultimately the issue of whether an award is justified is to be decided by the hearing adjudicator, however, the applicant’s claim for an award is not on its face frivolous. The respondent submitted case law which states that privilege trumps a claim for an award. The case law also supports that each case should be assessed on its own merits and submissions were made with respect to why the production in this case should be broadened. The applicant has convinced me that an exception to the rule should be made and the scope with respect to the disclosure of the adjuster’s log notes should be expanded pertaining to the records relating to the IRB as it is an issue in dispute.

16The litigation privilege rule gets complicated when it comes to accident benefit disputes as a file may involve denials of various benefits over different time periods of the life of a claim. The case law supports that a broad approach should be taken with respect to the disclosure and production of documents at administrative tribunals. I agree with the applicant that the scope pertaining to the disclosure of the respondent’s adjuster’s log notes should be broadened in this case. Further, the respondent can redact any document it claims to be privileged. Therefore, I order that the records be produced.

Respondent’s Motion for the Production of the Applicant’s CNRs

ANALYSIS

17For the reasons that follow, the respondent’s motion for an order seeking that the applicant produce the requested CNRs is granted. I order the applicant to produce the requested CNRs from 3 years pre-accident, as well as the post-accident records requested.

18The respondent argues that the records requested are directly relevant as the applicant had significant pre-existing medical history and his medical complaints and function post-accident are very similar. Therefore, causation is a live issue in dispute. The respondent argues that the CNRs received from the applicant to date are incomplete as it has only received the applicant’s CNRs from five months pre-accident. Further, it has only received the applicant’s family doctor’s CNRs up to April 11, 2016. The respondent maintains that the family doctor’s CNRS after this date are relevant as they speak to the applicant’s current impairments and level of function. The medical records submitted by the respondent on this motion demonstrate that in January 2015, four months before the subject accident, the applicant was admitted to hospital under a form 1 three times. The hospital’s consult reports suggest the applicant may have had significant psychological issues, as well as an addiction to cocaine from five years pre-accident. Therefore, the time-period for the disclosure of the pre-accident CNRs should be expanded.⁴

19The respondent maintains that post-accident the applicant is exhibiting the same type of symptoms and behaviour as he did pre-accident. It argues that this is particularly pertinent as the applicant is seeking a catastrophic determination under a) Glasgow Outcome Score and b) Criteria 8, a psychological impairment. In addition, the applicant also seeks entitlement to an attendant care benefit in the amount of $6,000.00 per month, from May 15, 2015 to date and ongoing. Therefore, the records are directly relevant as they speak to his function pre and post-accident. Finally, it requires the records in order to properly adjust its file and allow it the ability to explore settlement in a meaningful way and re-evaluate its position based on new medical information.

20I agree with the respondent that the records are relevant to the issues in dispute. The respondent submitted the FSCO appeal decision of Rakowsi v. State Farm⁵ to support its position that Tribunal’s adopt a broad approach when it comes to ordering the production of documents. While I am not bound by FSCO decisions, I found the factors to consider when ordering the production of documents as set out in those decisions to be a useful guide. Those factors include:

a) The sensitivity of the information requested;

b) The time, effort and cost of compliance;

c) The availability of the information through other sources; and

d) The timing of the request.⁶

21By their very nature, medical records contain very sensitive information. However, I find the respondent’s right to the production of the documents outweighs the applicant’s right to privacy as the medical records relate to the applicant’s pre and post-accident health and function and are directly relevant to the issues in dispute. Further, the respondent requested the subject records five months prior to the case conference. Therefore, I do not see any issues with respect to the timing of the respondent’s request.

22I agree with the respondent that the exchange of information and the disclosure of documents is a fundamental step in the dispute resolution process and it promotes settlement. It is common for parties to resolve a dispute after disclosure is exchanged, which eliminates the need for a costly hearing. Further, procedural fairness dictates that each party should be aware of the case against it and should not be surprised by evidence at the hearing. Ordering disclosure of relevant documents avoids procedural delays brought by objections at the last minute.

23I also agree with the respondent that the records requested are relevant as the evidence submitted supports that the applicant may have had significant pre-accident psychological issues and drug dependency dating back five years. Ultimately, the weight of this history and records is best left to the hearing adjudicator.

24The applicant takes the novel position that the respondent is not entitled to any CNRs that were not used by its insurer examiner (IE) assessors in preparing its reports to deny the applicant’s entitlement to the benefits in dispute. Therefore, the respondent should not be allowed to invent new reasons to justify its denials. Further, the respondent had the opportunity to make s. 33 requests under the Schedule, and to date, has not utilized that right. I find the issue with respect to whether or not the IE assessors had the appropriate documents before them in rendering their decisions to deny the benefits claimed is best left to the hearing adjudicator to decide.

25I do not find the applicant’s position that the respondent is not entitled to the production of records it did not use to deny the applicant’s benefits persuasive, nor do I find the case law submitted relevant to the issue before me. For example, the applicant submitted three reconsideration decisions of the Executive Chair of the LAT.⁷ These decisions dealt with the failure of the insurance companies to give proper medical reasons for the denial of benefits pursuant to s.38 (8) of the Schedule and an insured’s failure to attend an IE, not the production of documents. The only decision submitted by the applicant that was relevant to the production of documents was the LAT decision of 16-002744 v. Optimum Insurance⁸. I find Optimum distinguishable from this case as the respondent requested the documentation far in advance of the case conference, the issues in this case involve a catastrophic impairment and it is not clear if causation was raised as an issue in the Optimum case.

26Further, the applicant’s argument that the respondent is not entitled to the documents requested because it did not make a s.33 request is not supported by the Schedule or any other authority. Furthermore, I find the documents relevant to the issues in dispute and the request is proportionate to the complexity of the file. I also find the respondent’s concern with respect to causation may be valid. Therefore, it is necessary to gain a better understanding of the applicant’s medical history in order to understand the accident’s impact on his overall function.

27The applicant requests that I strike the respondent’s reference to the applicant’s criminal history from the record as it is not relevant to the matter before me and it is prejudicial to the applicant. While I agree with the applicant that the fact that he may have a criminal record should have no bearing on his entitlement to accident benefits, ultimately the relevance of this history is better left to be determined by the hearing adjudicator.

28I have not considered the additional correspondence submitted to the Tribunal by both parties following the deadline of the respondent’s reply submissions. There was no provision in my order for never ending replies and to review same would not be in line with the Tribunal’s mandate for the timely and efficient resolution of disputes.

29For all of the above reasons I order the requested documents to be produced.

ORDER

30I order the respondent to produce to the applicant the following records by May 15, 2019:

(i) the adjuster’s log notes on the sole issue of the IRB between May 22, 2018 to July 25, 2018, subject to redactions for settlement discussions, reserves and privilege. The respondent will provide particulars with respect to the reasons for the redactions. In addition, the respondent will produce any correspondence to the IE assessors who assessed the applicant’s entitlement to an IRB.

31I order the applicant to produce to the respondent the following records by May 15, 2019:

(i) Decoded OHIP summary from three years pre-accident to date;

(ii) The CNRs from the family doctor from three years pre-accident to date;

(iii) The CNRs from all treating specialists / hospital / treatment clinics from three years pre-accident to date;

(iv) Complete prescription summary from three years pre-accident to date;

(v) Particulars of the applicant’s claim for an award;

(vi) Copy of any medical benefits plans from three years pre-accident to date;

Footnotes

1. 1A decision in this matter was delayed as the respondent did not submit its supporting documentation with respect to its motion and the Tribunal requested submissions.
2. 2Licence Appeal Tribunal’s Common Rules of Practice and Procedure, October 2, 2017.
3. 3Statutory Powers and Procedures Act, R.S.O. 1990, c.S.15.
4. 4Mental Health Consultation Reports of Dr. Bami dated January 21, 2015, Dr. Kohn dated January 20, 2015; and Dr. Koczerginski dated January 30, 2015. The applicant was arrested by police and committed to medical evaluation under a Form 1/Form 42 under the Mental Health Act.
5. 5Rakowsi v. State Farm (2012) Appeal P11-00027 (Director’s Delegate), pg 8.
6. 6Rakowsi, pg 1.
7. 7T.F. v. Peel Mutual Insurance, 2018, CanLII 39373 (ON LAT); M.F.Z. v. Aviva Insurance Canada and J.C.C v. Aviva Insurance Company of Canada, 2017, CanLII 63632(ON LAT); and M.B. v. Aviva Insurance Canada, 2017, CanLII 87160 (ON LAT).
8. 816-002744 v. Optimum Insurance Company, 2017, CanLII 39575 (ON LAT).