Nuzran Najeebdeen v. Economical Mutual Insurance Company, 2020 CanLII 27404

Citation: Nuzran Najeebdeen vs. Economical Mutual Insurance Company, 2020 ONLAT 19-010850/AABS

Tribunal File Number: 19-010850/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:

Nuzran Najeebdeen

Applicant

and

Economical Mutual Insurance Company

Respondent

AMENDED MOTION DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Cary Schneider, Counsel

For the Respondent:

Shalini Thomas, Counsel

Heard in Writing

March 10, 2020

OVERVIEW

1The applicant was involved in an automobile accident on January 18, 2018, 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 applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference on January 27, 2020. The parties were unable to resolve the issues in dispute, and a hearing was scheduled. While discussing production exchange a dispute arose regarding the disclosure of surveillance evidence. I ordered the parties to file written submissions on the issue.

3The parties agree that litigation privilege arises as of August 29, 2019 when the Application to the Tribunal was served and filed. The respondent confirmed that there is no surveillance prior to August 29, 2019. The applicant is not seeking production of surveillance after litigation privilege commences, unless the respondent intends to rely on it at the hearing. However, the applicant has requested that the respondent (1) advise whether the respondent has obtained any surveillance after litigation privilege arose and, (2) provide the dates and further particulars of any such surveillance evidence.

4The respondent submits that they are not required to disclose the existence or particulars of any surveillance obtained after August 29, 2019 unless they intend to rely on it at the hearing.

ISSUES IN DISPUTE

5The issues that I must decide are as follows:

(i) Is the respondent required to disclose the existence of surveillance obtained after litigation privilege arises? If yes, what particulars must be disclosed?

(ii) If the respondent intends to rely on any surveillance at the hearing, when must it be produced?

RESULT

6The respondent is not required to disclose the existence or particulars of any surveillance otained after litigation privilege arises, unless they intend to rely on it at the hearing.

7If the respondent intends to rely on any surveillance at the hearing, it must be produced by March 27, 2020.

ANALYSIS

Disclosure of Particulars

8In the Tribunal’s decision in R.D. v Wawanesa, the adjudicator held that the respondent was not required to advise the applicant of the existence of any surveillance, or provide copies of any surveillance conducted after litigation privilege arose unless their respondent intended to rely on it at the hearing.¹

9The applicant relies on a Court of Appeal decision, Iannarella v Corbett,² which held that particulars of surveillance evidence over which a party was claiming privilege should be disclosed in Schedule B to the affidavit of documents. Pursuant to Rule 30.02(1) of the Rules of Civil Procedure,³ every document relevant to the dispute shall be disclosed whether or not privilege is claimed in respect of the document.

10The applicant submits that the respondent, in an accident benefits claim in which there is a duty of good faith, should be obligated to provide the same particulars a party in litigation would be required to provide in a Schedule B to an affidavit of documents. The applicant submits that the respondent is obligated to provide the date of the surveillance, the author, and the reason surveillance is not being produced (i.e. litigation privilege).

11While the Court of Appeal’s decisions are binding on this Tribunal, I find that Iannarella is not applicable to these circumstances because the Rules of Civil Procedure do not apply to the Tribunal. A party’s disclosure obligations in litigation are governed by the Rules of Civil Procedure. Rule 1.02 states that the Rules of Civil Procedure apply to civil proceedings in court. The Tribunal is not a court and the Rules of Civil Procedure do not apply to the Tribunal. Instead, the Tribunal is subject to the Common Rules of Practice and Procedure (“Common Rules”).⁴ There is no disclosure obligation in the Common Rules similar to Rule 30.02(1) of the Rules of Civil Procedure.

12Rule 9 of the Common Rules governs production of documents and disclosure requirements. Rules 9.2(a), 9.2(c), 9.3(a) and 9.3(c) all provide that disclosure is required only where a party intends to rely on the evidence at issue. However, pursuant to Rule 9.3(e), the Tribunal may order disclosure of any document or thing that it considers relevant to the issues in dispute, while Rule 9.1 also allows disclosure the Tribunal considers necessary for a full understanding of the issues.

13However, the Statutory Powers Procedure Act (“SPPA”)⁵ further governs the Tribunal’s ability to order disclosure. In particular, section 5.4(2) explicitly prevents the Tribunal from making an order requiring disclosure of privileged information.

14The Common Rules were made pursuant to the authority granted by the Legislature in section 25.1(1) of the SPPA and section 6 of the Licence Appeal Tribunal Act, 1999.⁶ As a corollary to those grants of authority, the Common Rules must be both written and interpreted in a way that is consistent with the SPPA.⁷ Thus, I cannot interpret the Rules in a manner that is inconsistent with the SPPA. Even though surveillance is relevant to the issues in dispute, any surveillance obtained after August 29, 2019 is subject to litigation privilege. I cannot order disclosure of any privileged information.

15The respondent is not required to disclose the existence or particulars of surveillance after litigation privilege arises.

Deadline for Disclosure

16The in-person portion of the hearing is scheduled for May 22, 2020 with written submissions to follow.

17The applicant submits that if the respondent intends to rely on any surveillance at the hearing, the deadline for production should be the same as the other productions, March 27, 2020. The applicant submits that it may be necessary for her to provide the surveillance to experts for consideration or comment. The deadline for new expert reports was set for April 10, 2020.

18The respondent submits that if they intend to rely on any surveillance at the hearing, they will produce the evidence in accordance with Rule 9 of the Common Rules. Rule 9 requires that the parties serve the documents at least 10 days prior to the hearing, or at any time ordered by the Tribunal.

19Pursuant to Rule 9, I order that, if the respondent intends to rely on any surveillance at the hearing, it shall be produced to the applicant by March 27, 2020. This will ensure that both parties have a full, fair hearing on the merits. The applicant will have an opportunity to review the evidence and obtain comment from her experts, if required, and produce the experts comments by the deadline of April 10, 2020.

CONCLUSION AND ORDER

20The respondent is not required to disclose the existence or particulars of any surveillance obtained after litigation privilege arises, unless they intend to rely on it at the hearing.

21Pursuant to Rule 9, if the respondent intends to rely on any surveillance at the hearing, it shall be produced to the applicant by March 27, 2020.

22If the applicant obtains further comment from her experts regarding the surveillance, the reports shall be produced to the respondent by April 10, 2020.

Footnotes

1. 1R.D. v Wawanesa Insurance, 2019 CanLII 22203 (ON LAT) at para 5.
2. 2Iannarella v Corbett, 2015 ONCA 110
3. 3RRO 1990, Reg 194 [Rules of Civil Procedure]
4. 4https://slasto-tsapno.gov.on.ca/fsc-csi/wp-content/uploads/sites/3/2019/02/LAT-ACRB-FSC-Common-Rules-of-Practice-Procedure_02.07.2019.pdf
5. 5RSO 1990, chap S.22 [SPPA]
6. 6SO 1999, chap 12, Sched. G [LAT Act]
7. 7SPPA, s. 25.1(3); see also LAT Act, s. 6(6)