RECONSIDERATION DECISION
Before: Dawn J. Kershaw, Vice Chair
File: 17-007223/AABS
Case Name: Z.Z. v. Wawanesa Mutual Insurance Company
Written Submissions:
For the Applicant: Kevin Wolf, Counsel
For the Respondent: Kathleen O’Hara, Counsel
OVERVIEW
1The respondent, Wawanesa Mutual Insurance Company (“Wawanesa”), requests reconsideration of an Order, dated April 12, 2018, in which the Tribunal dismissed its motion for pre-accident bank information production by the insured (“Z.Z.”).
2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
3As explained below, I grant Wawanesa’s request for reconsideration.
THE FACTS
4Z.Z. was in a car accident on December 11, 2016 and sought benefits from Wawanesa, including income replacement benefits (“IRB”).
5After the case conference, the parties provided written submissions with respect to whether Z.Z. should be compelled to provide pre-accident bank records for the period August 1 to December 31, 2016.
6The applicant had given an undertaking to provide bank records for that time period during an examination under oath that took place on June 26, 2017.
7Wawanesa made two written follow-up requests for the bank information and then a third orally at the case conference.
8In dismissing Wawanesa’s motion, the Tribunal stated that the test for disclosure was relevance, and that proportionality and timeliness were also relevant considerations. It concluded that Z.Z. made best efforts to get the bank records and dismissed the motion.
THE LAW
9There are limited grounds upon which a person can request a reconsideration. In this case, Wawanesa asserts that the Tribunal made a significant error of law and facts such that the Tribunal would likely have reached a different decision had the errors not been made. It asserts that it therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
10Rule 18.4 of the Rules provides:
Upon reconsidering a decision of the Tribunal, the Executive Chair or his or her delegate may:
(a) Dismiss the request; or
(b) After providing all parties an opportunity to make submissions,
(i) Confirm, vary or cancel the decision or order; or
(ii) Order a rehearing on all or part of the matter.
DISCUSSION AND REASONS
Significant Errors
Relevance
11I address first the issue of relevance. The Tribunal in my view wrongly concluded that the bank records were not relevant because the Schedule only requires proof of a person’s gross employment income 4 weeks prior to the accident or 52 weeks prior to the accident in order to calculate income. However, in coming to this conclusion the Tribunal misapprehended the reason Wawanesa wanted the records, which was to determine entitlement, not quantum. Wawanesa asserted in its motion for production that the applicant, in its view, was not entitled to an IRB because of his material misrepresentation with respect to where he lived at the time he arranged his insurance, and later when the accident occurred. Wawanesa requested the bank records in order to determine from the transactions where the applicant appeared to be living during the relevant period of time.
12I agree with Z.Z. that the Tribunal referred to the issue of material misrepresentation, writing that it would leave that issue to the hearing adjudicator. However, when deciding the issue of relevance of the bank records, at paragraph 16 of its decision, it stated that the Schedule only requires proof of a person’s gross employment income 4 weeks prior to the accident or 52 weeks prior to the accident in order to calculate income, which is a reference to quantum, not entitlement in the face of possible material misrepresentation. This in my view is a significant error without which the Tribunal would have decided differently. I find that the bank records are relevant to the issue of entitlement and therefore producible. I turn now to whether or not the Tribunal erred in finding that the applicant had made best efforts to obtain those records.
Best Efforts
13Wawanesa submits there was no factual basis for finding that Z.Z. made best efforts to get the banking records when the only information about this was a letter from the applicant’s lawyer’s office advising that Z.Z. changed banks and no longer had access to the closed bank account.
14The test on reconsideration is whether the Tribunal made an error of fact, which in my view it did by concluding that best efforts was satisfied solely by information in the applicant’s lawyer’s letter.
15I agree with Wawanesa that by finding the lawyer’s letter was sufficient without any other efforts having been made or even set out in the letter renders the term “best efforts” meaningless. The applicant’s lawyer did not set out when the account was closed (before or after the undertaking was given) or if any other attempts were made to contact the bank to access the records. Merely stating that he can no longer log into the account that is closed does not constitute “efforts” let alone “best efforts”. As such, I conclude that the Tribunal erred in its finding that the applicant made best efforts.
Undertaking
16The applicant, at his Examination under Oath (“EUO”), gave an undertaking to get the bank records. Wawanesa argues that the Tribunal erred by giving no weight to this undertaking. Wawanesa incorrectly states that the Tribunal made no finding with respect to whether the applicant’s undertaking was enforceable. In fact, it did so in paragraph 15 where it concluded that the undertaking was unenforceable. The question is whether this was an error. Neither party provided any case law with respect to this issue.
17I find no error in the Tribunal’s conclusion that it cannot enforce an undertaking given at a EUO. The Tribunal has its own test for production of documents, which is relevance, not whether an applicant agreed to an undertaking at a EUO, which the person may have done for other reasons besides relevance.
CONCLUSION
18I find that the Tribunal erred in its finding that the applicant had made best efforts to obtain bank records from TD Bank for the period from August 1 to December 31, 2016. I find they are relevant and should be produced.
ORDER
19Wawanesa’s request for reconsideration is granted.
20I order that the applicant by no later than May 30, 2019 use best efforts to obtain the bank records, which shall include making a written inquiry of the bank (copied to Wawanesa), in which Z.Z. includes an appropriate authorization signed by Z.Z., asking the bank to provide Z.Z. with the records sought. If the bank advises it is not able to provide the records the applicant shall provide to Wawanesa written confirmation of same from the bank.
21A resumption of the case conference shall take place on June 10, 2019 at 9:00 a.m.
Dawn J. Kershaw
Vice Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 16, 2019