L.K.C. v. Unifund Assurance Company, 2019 CanLII 51318

RECONSIDERATION DECISION

Before: Lori Marzinotto, Vice-Chair

Date: May 23, 2019

File: 18-004346/AABS

Case Name: L.K.C. v. Unifund Assurance Company

Written Submissions by:

For the Applicant: Michelle Jorge, counsel

For the Respondent: Gina Nardella, counsel

OVERVIEW

1Unifund Assurance Company (the insurer) requests reconsideration of a case conference decision in which the Tribunal ordered the production of the insurance adjuster’s log notes.

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 dismiss the insurer’s request for reconsideration.

BACKGROUND

4The parties participated in a case conference on September 19, 2018. The issues in dispute at the case conference were with respect to the applicant’s entitlement to attendant care benefits and psychological treatment. In addition, the applicant claimed interest on any overdue payment of benefits. The applicant did not make an award claim against the insurer under Ontario Regulation 664 alleging the insurer unreasonably withheld or delayed payments to the applicant.

5During the case conference, the applicant requested that the insurer produce the adjuster’s log notes from the date of the accident until the filing of the application at the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The insurer objected to the production of the adjuster’s logs notes (the “Production Issue”).

6The Tribunal heard submissions on the Production Issue and ordered that the insurer provide a copy of the adjuster’s log notes redacted for privilege and reserves from the date of the accident until the filing of the applicant’s application to the Tribunal.

7On October 10, 2018, the insurer requested a reconsideration of the Order to produce the adjuster’s log notes.

ANALYSIS

8A request for reconsideration will not be granted unless one or more of the following criteria from Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure – October 2, 2017 (the “Rules”) are met:

a) The Tribunal acted outside its jurisdiction or violated the Rules of natural justice or procedural fairness;

b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

9The insurer submits that the Tribunal made a significant error of fact and law and that the Tribunal would likely not have ordered production of the log notes had the error not been made.

10Essentially, the insurer submits that the applicant did not demonstrate the relevance of the adjuster’s log notes given that the applicant is not claiming a special award.

11In the case conference Report, the Tribunal indicated that the logs notes are created during the course of file handling and documents the basis of generating correspondence to the claimant that informs them of the determinations made by the adjuster. The Tribunal found that the log notes are relevant to the issues in dispute.

12In the reply submissions of the applicant¹ (“Applicant’s Reply”) to the insurer’s request for reconsideration, the applicant submits that the adjuster’s log notes are required to understand the deliberation of the adjuster in refusing the applicant’s entitlement to the claimed benefits. Although this argument is not specifically reflected in the case conference Report, there was no submission by the insurer that this argument was not advanced by the applicant at the case conference. The applicant’s submission essentially mirrors the decision of the Tribunal in the case conference Report.

13I agree with the proposition in Applicant v. Certas Home and Auto Insurance Company² that there is no hard and fast rule that adjuster’s log notes must always be produced and that the relevance of log notes will depend on the facts of each case.

14As stated in N.Y. v. TD Insurance Meloche Monnex³, the Tribunal’s main consideration is relevance. The party seeking production must establish the relevance between the material sought and the dispute before the Tribunal.

15This is consistent with Rule 9.3(e) where a party may seek an order from the Tribunal ordering a party to disclose any document or thing the Tribunal considers relevant to the issues in dispute.

16In this case, the applicant sought the production of the log notes in order to understand the deliberation of the adjuster in refusing the benefits being sought by the applicant. This is consistent with Campeau v. Liberty Mutual Insurance Co. in that the information is likely relevant to the applicant’s entitlement claim. Although there is no claim for a special award being made, I have not been directed to any case law to suggest that a claim for a special award is a prerequisite for the disclosure of the adjuster’s log notes. As stated in Campeau, adjuster’s log notes are prima facie relevant and come into existence solely as a result of the accident and are likely relevant to an entitlement claim⁴.

17The test is not whether a special award claim is being sought but rather, are the documents being sought relevant to the issues in dispute. The case conference Report indicates that the Tribunal found that the log notes are relevant and indicates the reason why. The applicant’s submissions on the request for reconsideration reiterate why the log notes are relevant.

18I see no error in law or fact made by the Tribunal.

19For the above reasons, I dismiss the insurer’s request for reconsideration.

Lori Marzinotto
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1The applicant titled the submissions on the request for reconsideration as a “Reply”, although it was the Responding Submission of the Applicant to the Reconsideration Request and should have been titled the Applicant’s Responding Submissions.
2. 217-003172, Applicant v. Certas Home and Auto Insurance Company, 2018 CanLII 39481 (ON LAT) at para. 68
3. 3N.Y. v. TD Insurance Meloche Monnex, 2017 CanLII 69446 (ON LAT) at para. 16
4. 4Campeau v. Liberty Mutual Insurance Co., FSCO A00-000522, March 12, 2001 at p. 26