T.I. v. TD Insurance Meloche Monnex, 2020 CanLII 27403

Citation: T.I. vs. TD Insurance Meloche Monnex 2020 ONLAT 18-002932/AABS

Released Date: 03/30/2020

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:

T.I.

Applicant

and

TD Insurance Meloche Monnex

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Imtiaz Hosein

Counsel for the Respondent: Patricia Hill

Heard via Teleconference: March 11, 2020

OVERVIEW

1The applicant was injured in an automobile accident on August 22, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for an attendant care benefit (“ACB”) that the respondent denied on the basis that her benefits have been exhausted in accordance with the Schedule. The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution to dispute her entitlement to ACBs and an award.

3A three-day in-person hearing commenced on February 27, 2020. After the first day, the remaining two days were adjourned on consent as stated in the Tribunal’s Order dated February 28, 2020. Furthermore, in the Order, the respondent consented to provide updated adjuster log notes and the updated accident benefits file to the applicant by March 20, 2020. According to the Order, the respondent was to redact the adjuster log notes for privilege and reserve information with a reasonable explanation for each redaction.

4On March 2, 2020, the applicant filed a Notice of Motion with the Tribunal to clarify the Order dated February 28, 2020 as it was the applicant’s understanding that that the respondent agreed to provide a sufficient explanation for each and every redaction that could potentially allow the applicant to challenge any claim of solicitor-client privilege or litigation privilege. According to the applicant the Tribunal Order was ambiguous as to whether a reasonable explanation meant that a sufficient explanation was to be provided to allow the applicant to challenge any redaction. A motion hearing was scheduled via teleconference on March 11, 2020. Both parties provided written submissions and further oral submissions at the teleconference.

5On March 9, 2020 the respondent provided the up-to-date adjuster log notes with redactions for solicitor-client privilege, litigation privilege and reserves.

ISSUE TO BE DECIDED

6The applicant’s Notice of Motion dated March 2, 2020 seeks the following remedy:

(i) Clarification of paragraph 5 of the Order dated February 28, 2020 as it contains an ambiguity.

(ii) An Order that the respondent provide a sufficient explanation for each and every redaction that could potentially allow the applicant to challenge any claim of solicitor-client privilege or litigation privilege.

RESULT

7The applicant’s motion is granted in part.

8There is no ambiguity in the Tribunal Order dated February 28, 2020. The respondent was to provide a reasonable explanation for each and every redaction.

9The respondent is ordered to provide a reasonable explanation for each redaction as per the terms of the original order dated February 28, 2020 and in accordance with this Motion decision.

ANALYSIS

10For the following reasons, I find that the applicant is entitled to a reasonable explanation for each redaction and a reasonable explanation is not satisfied by simply stating “Solicitor-Client Privilege”, or “Litigation Privilege/Strategy/Hearing”. These were the only explanations provided for the redactions made by the respondent.

11The applicant submits the redactions for the adjuster log notes do not amount to a reasonable explanation and as a result, the applicant is unable to challenge the respondent’s claim of privilege. Furthermore, according to the applicant, it is procedurally unfair for the respondent to redact items by simply claiming privilege without an explanation. The applicant submits that litigation privilege must meet the dominant purpose test and the parties agreed during the first day of the hearing that the respondent would provide a sufficient explanation so that the applicant could challenge any redaction. As a result, the applicant submits the Tribunal Order dated February 28, 2020 contains an ambiguity and requests a clarification.

12The respondent submits that it did not agree to provide sufficient details to allow the applicant to decide to challenge each and every redaction. Furthermore, the respondent submits that nothing is admissible in a hearing if it is privileged under the law,² and the updated log notes were completed after the commencement of the Tribunal application and they are therefore protected by a prima facie presumption of litigation privilege.

13According to the respondent, there is no case law to support the applicant’s position for detailed reasons for each redaction. To do so, would make the redactions pointless.

14I do not agree with the applicant that the Tribunal Order dated February 28, 2020 contains an ambiguity, it captured the intent of the parties that the respondent shall provide a reasonable explanation for any redaction. The respondent did not agree to provide a sufficient explanation that would allow the applicant to challenge any redaction.³

15The parties referred me to numerous court cases,⁴ as well as Tribunal jurisprudence.⁵ I do not find the court cases or the Tribunal cases to be relevant to the issue in dispute for this motion.

16The court cases speak to the difference between solicitor-client privilege and litigation privilege. Although the respondent submits for the purposes of this motion that litigation privilege is absolute and the log notes were created after the applicant filed her Tribunal application and therefore, the log notes are privileged.

17I do not agree with the respondent on this point. The log notes in their entirety were not created for the dominant purpose of litigation,⁶ they were created as part of its ongoing duty to continuously adjust the applicant’s accident benefits file. Therefore, in my opinion, they are not entirely prima facie privileged.

18In any event, the respondent agreed to provide the log notes to the applicant but only those portions that were redacted for solicitor-client privilege, litigation privilege and for reserve information. That was in fact done, however the applicant takes issue with the redactions that are explained simply as “Solicitor/Client” and “Litigation Privilege/Strategy Hearing” with no further explanation.

19In my opinion, simply stating “Solicitor-Client Privilege”, “Litigation Privilege/Strategy Hearing” is not the equivalent of a reasonable explanation for the redaction and is not in keeping with the wording of the Order dated February 28, 2020.

20I am cognizant of the respondent’s submission that to provide any further information would render the redactions pointless. However, I would not agree with its submissions. An explanation or summary of each redaction can still be provided which would not compromise the privilege or render the redactions pointless.

21The applicant is entitled to a reasonable explanation for any redaction and to provide an example of what is a “reasonable explanation” would be best left to the discretion of the respondent based on what was written in the log notes. In any event, the redactions should be accompanied by an explanation or a summary rather than just a simple statement of “Solicitor-Client Privilege”, or “Litigation Privilege/Strategy Hearing”.

22According to the Oxford Learner’s Dictionary,⁷ the definition of “explanation” is a statement, fact, or situation that tells you why something happened; a reason given for something.

23The definition of “summary” is a short statement that gives only the main points of something, not the details.⁸

CONCLUSION

24In accordance with the above reasons, the respondent shall provide an explanation or a summary of each redaction of the adjuster’s log notes.

ORDER

25As a result of the Motion Hearing on March 11, 2020, I order that:

(i) The applicant’s motion is granted in part.

(ii) There is no ambiguity in the Tribunal Order dated February 28, 2020. The respondent was to provide a reasonable explanation for each and every redaction.

(iii) The respondent is ordered to provide a reasonable explanation or summary for each redaction as per the terms of the original order dated February 28, 2020 and in accordance with this Motion decision.

Released: March 30, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.
3. 3Transcript of the hearing dated February 27, 2020 at pages 230-231.
4. 4General Accident Assurance Company v. Chrusz, 1999 CanLII 7320 (ON CA); Blank v. Canada (Minister of Justice), 2006 SCC 39; Mamaca v. Coseco Insurance Company, 2007 CanLII 54963 (ON SC); Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52.
5. 5R.H. v. Wawanesa Mutual Insurance Company, 2018 CanLII 115646 (ON LAT); L.R. v Wawanesa Mutual Insurance Company, 2019 CanLII 40232 (ON LAT); 17-008769 v Unifund Assurance Company, 2018 CanLII 110942 (ON LAT); P.Z. v Unifund Claims Inc. 2019 CanLII 34619 (ON LAT).
6. 6General Accident Assurance Company v. Chrusz, 1999 CanLII 7320 (ON CA).
7. 7Oxford Learner’s Dictionary website: www.oxfordlearnersdictionaries.com.
8. 8Ibid.