Tribunal File Number: 18-004304/AABS
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.
Between:
L.R.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
MOTION DECISION and ORDER
Order made by: Maureen Helt, Vice Chair
Appearances: Daniel Hynes, Counsel for the Applicant Elizabeth Scott, Counsel for the Respondent Nick Carmichael, Counsel for Third Party
OVERVIEW
1The applicant was injured in an automobile accident on Monday, October 15, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference took place on Wednesday, January 16, 2019.
4On March 15, 2019 the applicant filed a motion requesting production of adjuster’s log notes.
PRELIMINARY ISSUE
5At the outset of the motion hearing, Mr. N. Carmichael, counsel for Evolve Assessments and Diagnostics (Evolve) identified himself. He indicated he was provided with a copy of the Notice of Motion Hearing by counsel for the respondent. As one of the requests in the motion relates to the production of documents from a third party, Evolve, Mr. Carmichael wanted the opportunity to speak to the matter on behalf of his client. He advised his client opposes the applicant’s request for the production of third party documents.
6After a short discussion I informed the parties that the motion for the production of third party documents would be heard by way of teleconference on Tuesday April 9 at 9am.
7I informed the parties and Mr. Carmichael that a Notice of Motion Hearing would be issued setting out the teleconference details.
8I also ordered that Mr. Carmichael serve and file his response to the applicant’s motion for third party productions no later than noon on Friday April 5th, 2019 and any reply submission from the applicant to be served and filed by Monday April 8, 2019 at 4pm. The respondent indicated she was taking no position on the motion. A Notice of Motion Hearing has been issued with respect to this motion.
9Mr. Carmichael was asked to leave the teleconference and I proceeded to hear the applicant’s motion for production of adjuster log notes.
MOTION
10On March 15, 2019, the applicant filed a Notice of Motion requesting that the Tribunal;
i. Make an Order that the respondent produce the adjusters’ log notes, redacted only for reserves and privilege, from the date of the OCF-1, November 5, 2012, to the date of the filing of the application with the Licence Appeal Tribunal (Tribunal), May 4, 2018.
ii. That the Order requested requires the respondent to provide the documents to the applicant no later than ten days prior to the commencement of the hearing, which is scheduled to commence on April 23, 2019.
11It is the position of the applicant that the log notes are relevant to the adjustment of the applicant’s file through the catastrophic applicant process. Specifically, the applicant argued that the surveillance footage inappropriately weighed in the minds of the adjuster or adjusters involved in the file, and the adjuster’s supervisor inappropriately had a role in the decision-making.
12The respondent did not consent to the motion
RESULT
13The applicant’s motion is granted in part.
i. The respondent is ordered to produce the adjuster log notes for the period November 5, 2012 to the date of the filing of the application to the Tribunal, subject to redactions for relevance, reserve information, solicitor- client privilege and litigation privilege. Only documents related to the issues in dispute in the application before the Tribunal between the date of December 5, 2016 (the date of denial of catastrophic impairment) to the date of the filing of the application with the Tribunal on May 4, 2018 may be subject to litigation privilege.
ii. The respondent shall provide an explanation and summary for each redaction.
iii. Any other issues regarding privilege of these log notes shall be left to the hearing adjudicator.
iv. The respondent shall provide the documents to the applicant no later than ten days prior to the commencement of the hearing, which is scheduled to commence on April 23, 2019.
Issues in Dispute
14The issues in dispute in this application include whether or not the applicant sustained a catastrophic impairment, certain medical and rehabilitation benefits, interest and an award under Regulation 664.
Background – Brief Chronology
15In considering this motion it is helpful to set out a short chronology of events:
i. Applicant injured in motor vehicle accident on October 15, 2012.
ii. November 5, 2012 (date the respondent received the OCF-1).
iii. July 3, 2014 (date of the first application for mediation at the Financial Services Commission of Ontario (“FSCO”)). The issues in dispute included: income replacement benefit, and medical and rehabilitation benefits.
iv. FSCO arbitration originally scheduled for March 14 – 18, 2016 adjourned to April 10 – 14, 2017.
v. February 11, 2016, OCF- 19 filed as part of the FSCO application.
vi. Respondent commissioned section 44 assessments between March and December 2016.
vii. December 5, 2016, the respondent informs the application it was taking the position her injuries were not catastrophic.
viii. Legislative changes came into effect April 1, 2016 – catastrophic injury matters referred to the Tribunal. Although the catastrophic issue was in dispute before FSCO it could not be added to the FSCO arbitration as it had to proceed to the LAT due to the legislative changes.
ix. April 28, 2017, a partial release executed for FSCO dispute dealing with past medical, income replacement and attendant care benefits.
x. Correspondence between the parties to withhold filing a catastrophic application to the LAT until the respondent completed its updated section 44 examinations related to the issue of ongoing entitlement to income replacement benefits.
xi. Respondent repeated its denial of the applicants claim to entitlement for catastrophic impairment on February 8, 2018.
xii. May 4, 2018 the applicant filed an application to the LAT for a determination of catastrophic impairment, income replacement and medical benefits.
15The respondent did not consent to the motion.
ANALYSIS
16The applicant submits the adjuster log notes for the period November 5, 2012, through to the date of filing an application with the Tribunal, May 4, 2018 should be produced. The log notes are relevant to how the applicant’s file was adjusted through the catastrophic applicant process.
17In the applicant’s submission, relevance in relation to these issues must be broadly construed. The dominant purpose of log notes is to record the ongoing adjustment of the file, thus, the notes are presumptively relevant. The applicant submits that without an accurate record of the adjustment of the file, the applicant cannot determine the decision-making process regarding accident benefits.
18With respect to the claim for an award pursuant to Regulation 664, the applicant submits that “the adjuster’s log notes provide a window into the respondent’s decision – making process, without access to these documents the applicant would be required to argue her case without any context or in the dark. It would be procedurally unfair and unjust to require the applicant to make submissions or argue her case without knowing the contents of the log notes”.1
19It is the respondent’s position that adjuster log notes are producible subject to redactions for relevance, reserves, and privilege from November 5, 2012 (date of receipt of the OCF-1) to July 3, 2014 which is the date of the first application to FSCO. The respondent claims litigation privilege for log notes after July 14, 2014 and submits they are not producible.
20The respondent submits that had it not been for the legislative changes that came into effect on April 1, 2016, requiring the catastrophic issue to proceed before the Tribunal, the log notes would have been precluded due to litigation privilege before FSCO.
21The respondent references the Supreme Court’s decision in Lizotte for the proposition that there is a prima facie presumption of inadmissibility on the basis of litigation privilege and that once litigation is contemplated, the respondent submits that adjuster log notes become privileged and are generally not produced.2
22In order for there to be a prima facie presumption of inadmissibility on the basis of litigation privilege, as set out in Lizotte, the party must demonstrate that:
The documents are created for the dominant purpose of litigation; and
The litigation or related litigation is either pending or may reasonably be apprehended.
23The respondent argues that litigation with respect to catastrophic entitlement was contemplated during the course of the FSCO litigation (July 3, 2014 – April 28, 2017) and beyond and as such litigation privilege should prevail. In making this argument the respondent relies on a decision by the Tribunal in Marcia MacDonald and Aviva Insurance Canada 18-000467 wherein it was concluded that adjuster log notes created during prior FSCO litigation ought not to be produced because they are subject to litigation privilege.
24However, in the MacDonald decision; in the Order, it was made clear that litigation privilege applied to the redacted adjuster log notes provided that the notes related to the specific issues in dispute before FSCO. In this case, the issue of catastrophic impairment was only denied by the insurer on December 5, 2016 during the FSCO dispute. Had it not been for the legislative changes the question of catastrophic impairment would have continued before FSCO. In these particular circumstances I find that litigation privilege attached to the issue of catastrophic determination at the time of the denial of the OCF-19, on or about December 5, 2016.
25As set out at paragraphs 32 to 34 of the respondent’s submissions:
The Respondent further submits that as of December 5, 2016, litigation could reasonably be contemplated on the issue of catastrophic impairment. The catastrophic issue arose during the course of the FSCO litigation. The OCF-19, dated February 11, 2016 was received by the Insurer in and around March 2016 and the insurer’s initial denial on the catastrophic issue was December 5, 2016.
The respondent submits that the issue of catastrophic impairment would have been added to the initial FSCO arbitration, but for legislative changes effective April 1, 2016 which mandated that new applications be made to the LAT.
Litigation of the catastrophic impairment issue was anticipated as early as December 2016 when the Respondent first received its section 44 assessments denying the applicant entitlement.
26While I agree with the respondent that litigation privilege applies, it is not absolute. The respondent cannot make a blanket claim of litigation privilege for all matters related to the file before FSCO and thereafter, as not all log notes would have been created for the dominant purpose of litigation, or anticipated, or related litigation. Surely some of the log notes have been prepared in the usual course of adjusting the file. Part of the reason behind the jurisprudence that log notes are presumptively relevant is that the respondent owes the applicant a duty to continue to adjust their file following an accident, whether there is anticipated litigation or not.
27Therefore, further to the Motion Hearing on April 1, 2019, I order the following;
i. The respondent is ordered to produce the adjuster log notes for the period November 5, 2012 up to the date of the filing of the application to the Tribunal subject to redactions for relevance, reserve information, solicitor- client privilege and litigation privilege. Only documents related to the issues in dispute in the application before the Tribunal between the date of December 5, 2016 (the date of denial of catastrophic impairment) to the date of the filing of the application with the Tribunal on May 4, 2018 may be subject to litigation privilege.
ii. The respondent shall provide an explanation and summary for each redaction.
iii. Any other issues regarding privilege of these log notes shall be left to the hearing adjudicator.
iv. The respondent provide the documents to the applicant no later than ten days prior to the commencement of the hearing, which is scheduled to commence on April 23, 2019.
28Except for the provisions contained is this order all previous orders made by the Tribunal remain in full force and effect.
OTHER PROCEDURAL MATTERS
29If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.
Date of Issue: April 8, 2019
Maureen Helt
Vice Chair
Footnotes
- P.J. v. Aviva Insurance Company, 2018 CanLII 132577 (ON LAT) at para 23.
- Lizotte v. Aviva Insurance Company of Canada 2016 SCC 52, 2016 SCC52 and RH and Wawanesa Mutual Insurance Company, 17-005570 (LAT)