C. B. v. Allstate Insurance Company of Canada, 2020 CanLII 61464

Released Date: 07/31/2020

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:

C. B.

Applicant

and

Allstate Insurance Company of Canada

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Brent McQuestion, Counsel

For the Respondent: Ryan Kirshenblatt, Counsel

HEARD: In Writing May 21, 2020

OVERVIEW

1The applicant was injured in an automobile accident on June 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010.

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3This matter has a long procedural history, including several case conferences and an in-person hearing that has been vacated. At a recent case conference the applicant requested and was granted a motion to be hearing in writing and the in- person hearing was rescheduled for February of 2021.

4The issues in dispute are: catastrophic impairment designation; income replacement, attendant care, medical benefits, costs of examinations, and an award.

MOTION

5A motion in writing was scheduled for May 21, 2020. On April 29, 2020 the Applicant filed a Notice of Motion seeking seven specific orders for productions and an order for Costs.

6Specifically, the applicant is seeking the following:

a. An order compelling production of the documents pursuant to the Tribunal’s order of July 2, 2019¹:

i. Further particulars of the privilege claimed for the redaction of the adjuster log notes

ii. Complete files of all Insurance Medical Examination (IME) assessors or an explanation as to why there is no IME file

b. Further adjuster log notes after the date of the application relating to the following:

i. Information requested from the applicant by the respondent pursuant to section 33 of the Schedule;

ii. The respondent’s request of March 12, and 13, 2020 for further Catastrophic Impairment Assessments pursuant to section 44 (CAT I.E.s)

c. Payment Information and specifically the following:

i. Updated payment summary of the medical and rehabilitation paid to date with specific breakdown

ii. Particulars of whether the costs of the CAT I.E. of May 11, 2017 was paid out of the applicant’s medical and rehabilitation policy limits

iii. Particulars of the amounts paid by the respondent for IMEs.

d. Costs of the Motion.

RESULT

7Based on the below I order that within 30 days following receipt of this Order and Decision the following:

a. The respondent shall produce the full Accident Benefits file including correspondence, emails, draft reports, letters of instructions and any notes the respondent received from the IME assessors and any documentary information that the respondent possesses relating to the IME File or assessments, subject to litigation privilege with particulars of the privilege being asserted;

b. The respondent shall to produce the adjuster’s log notes and emails, subject to redaction for reserve information and privilege in relation to any requests for information from the Applicant made pursuant to s. 33 of the Schedule made after the date of the Application;

c. The respondent shall produce he adjuster’s log notes and emails, subject to redaction for reserve information and solicitor/client and litigation privilege in relation to the Respondent’s request of March 12, 2020 and March 13, 2020 for further Catastrophic Impairment IMEs of the Applicant;

d. Costs payable by the respondent in the amount of $500.00

ANALYSIS and REASONS

a) The Order of July 2, 2019

8The first two items sought by the applicant are based on the Tribunal’s order of July 2, 2019. On July 2, 2019 the Tribunal ordered the following:

a. Adjuster's log notes and emails subject to redaction for reserve information and privilege up to the date of the application and identify the reasons for the redactions. (“Log Notes”)

b. With the exception of Dr. Tuff, the complete files of all IME assessors, upon receipt of the applicant’s authorizations, but not limited to:

i. Adjuster's letter(s) of instruction

ii. Emails

iii. Correspondence

iv. Copies of all handwritten notes

v. Copies of all draft reports

9The deadline for providing the Log Notes was 30 days from the release of the Order (i.e. August 2, 2019) and the deadline for the complete IME File was 30 days following the receipt of an authorization from the applicant, which in this case the deadline to produce the IME File was August 25, 2019.

10The applicant submits that with respect to the Log Notes that the respondent provided the Log Notes with redactions, however the reasons for the redactions were overly broad and lacked any particulars and therefore the applicant is requesting further particulars regarding the redactions.

11The respondent in their response to the motion has now provided details reasons for the redactions and therefore no further particulars are ordered at this time.

12With respect to the IME file the applicant is requesting the full IME File as previously ordered and, in the event, that there are no clinical notes and records in the IME file then the respondent should provide an explanation as to why the records do not exist why the records were disposed of etc.

13The respondent concedes that the IME file was not provided by August 25, 2019 as ordered or specifically at any time prior to the Notice of Motion. The respondent on May 20, 2020 provided the full file as received by, the IME provider, Benchmark.

14The respondent as well has confirmed that there are no notes in the IME File and submits that it should not be required to provide the rationale as to why there are no notes and records. The respondent submits that reasons why there are no notes kept or no records kept is not relevant to the issues in dispute but rather “cross-examination material”.

15With respect to the issue of production of the IME File this has now been produced and therefore no further order will be made for its production.

16With respect to the explanation of what is or is not in the IME File I note the following.

The applicant prior to bringing this motion was under the impression that no IME File exists because he was told so by the respondent.
The applicant in his submission points to the fact that in an earlier motion at the Tribunal an affidavit of the adjuster was filed by the respondent and in that affidavit there were emails and information exchanged between the IME assessment centers and the respondent
Based on the above the applicant therefore questions how it is that there is no IME file that contains records, correspondence or emails when they seemed to have existed as attached to an affidavit from the respondent

17The respondent in their submissions state that they provided the IME File, specifically the file from Benchmark. The respondent states that there are no notes and then states that the applicant is aware that there are no “records”.

18The respondent served the IME File on the same day as their submissions responding to the motion were due. I am not sure if the applicant had time to review the IME File produced or if it still requires the explanation. While I could defer the matter and ask for further details this would only create a potential further motion and increase the costs and work for both parties.

19Therefore, in exercising my discretion to ensure an efficient and timely resolution of the matter and the issue of the IME File I order that the respondent produce the full Accident Benefits file including correspondence, emails, draft reports, letters of instructions and any notes the respondent received from the IME assessors and any documentary information that the respondent possesses relating to the IME File or assessments, subject to litigation privilege with particulars of the privilege being asserted.

20I do not make any further order for the respondent to provide further information from the IME assessors as the respondent is not in care or control of the IME File. I do note however, that the respondent has a continued obligation to provide the updated accident benefits file when requested to do so by the applicant.

b) Adjuster Log Notes relating to Section 33 and Section 44 Requests

21The applicant seeking adjuster log notes as follows:

i. The adjuster’s log notes and emails, subject to redaction for reserve information and privilege in relation to any requests for information from the Applicant made pursuant to s. 33 of the Schedule made after the date of the Application;

22The respondent has agreed to the above and requires additional time to do so. Therefore, I order that the respondent has 30 days from the date of this Order to produce the above subject to redactions with the particulars of the redactions provided.

23The applicant is also seeking the following relief:

ii. The adjuster’s log notes and emails, subject to redaction for reserve information and privilege in relation to the Respondent’s March 12, 2020 and March 13, 2020 request for further Catastrophic Impairment IMEs of the Applicant

24The applicant submits that an issue in dispute is the withholding of benefits and the adjusting of the Applicant’s accident benefits claim as a whole and is related to the issue of an award pursuant to section 10 of O.Reg 664 and that the log notes are presumptively relevant.

25The respondent submits that these log notes are not relevant to the substantive issues in dispute at the hearing because there are no issues pertaining to the attendance or the reasonableness of the Catastrophic Impairments assessments pursuant to section 44 of the Schedule (CAT I.E). Moreover, the applicant refused to attend the CAT I.E. and therefore the notes regarding further adjustment of the claim with respect to the CAT I.E are not relevant.

26It should be noted that the CAT I.E. that the applicant and respondent are speaking to is a subsequent CAT I.E. that was scheduled for 2020. The respondent conducted a previous CAT I.E. in November of 2017.

27I order that the log notes be produced with the redactions for reserves and litigation and solicitor client privilege. When ordering production of documents, the adjudicator must look to relevance and the potential prejudice for the opposing side. The log notes are presumptively producible in a consumer protection legislation. They are a record of the history of the file including the decisions made in that file and by knowing the rationale for the decisions made the applicant can make informed choices to pursue the award or any other issues in dispute. The potential prejudice to the respondent is cured by ordering the redactions as stated above and limiting the log notes to what is being requested, specifically log notes pertaining to the March 12 and 13, 2020 CAT I.E. requested.

c) Production of Benefits and Amounts Paid

28As for the balance of the motion the applicant is requesting the following:

i. A breakdown of medical and rehabilitation amounts spent to date;

ii. Whether the costs of the Applicant’s Catastrophic Impairment Assessment of Dr. Diana Velikonja, was paid out of the Applicant’s medical and rehabilitation policy limits; and

iii. the amounts spent on IMEs to date

29The respondent in their submissions has provided the above and therefore there is no Order made with respect to the above relief sought.

d) Costs

30Rule 19 of the Tribunal’s Common Rules of Practice and Procedure (the Tribunal’s Rules) states the following:

19.1: Where a party believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith that party may make a requires to the Tribunal for costs.

19.2: A request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.

31The applicant submits he is entitled to costs for the following reasons:

The respondent is in breach of the Order of the Tribunal specifically with respect to the IME File
The applicant had to bring the within motion to compel compliance of the Tribunal Order
Despite the respondent having screen shots of correspondence between the respondent and the IME assessors that it was not provided to the applicant in its entirety despite the Tribunal Order to do so
The order for the Log Notes and IME File was done on consent
Despite repeated requests and reminders to the respondent that they were in non-compliance with the Order the respondent did not provide anything.
The respondent owes the applicant a duty of the utmost good faith and the delays in the disclosure and production of those documents do not only breach this duty but impede the fair and efficient resolution of the dispute

32The applicant further submits that based on the disregard by the respondent to the order of the Tribunal and based on the withholding of documents by the respondent that were adverse to the respondent’s interest that the respondent acted in a manner that was unreasonable, frivolous and bordered on vexatious and bad faith. Therefore, an order for costs is warranted.

33The respondent submits that with respect to the log notes ordered to be produced the respondent was in compliance with the Tribunal’s order of July 2, 2019 and that issue is the degree in which particulars were provided for the redactions and not that the Log Notes were not provided and therefore costs are not warranted.

34Secondly the respondent submits that IME File has now been provided and therefore costs are not warranted.

35Thirdly the respondents submit that for the balance of the requests for production that there were no orders to produce same. Productions were made following the earlier case conference and the respondent has been cooperative in providing same.

36I find that the applicant is entitled to costs.

37The respondent was in breach of an Order that it consented to and specifically did not provide the IME File. The applicant reminded the respondent that it was in breach of the Order yet the respondent still did nothing. On May 20, 2020 the respondent was to serve and file their written submission. May 20, 2020 is when the respondent provided the IME File that was ordered to be produced nine months earlier. This I find to be unreasonable conduct on behalf of the respondent that should warrant a finding of costs. An applicant should not have to bring a motion to compel the respondent to abide to a Tribunal order especially an order that was consented to

38Further the respondent has not been forthcoming in its information and caused confusion by again ignoring the letters from the applicant when he was seeking clarification regarding the existence of an IME File. On August 4, 2019 the applicant was told that there were no records or file at Benchmark aside from the reports and then in response to the motion on the day that the respondent was to file their motion materials they served the IME File on the applicant, the same file that purportedly did not exist. Again, the respondent by ignoring the letters from counsel seeking clarification about the IME File and by doing nothing in response to those letters constitutes unreasonably behavior and bad faith and caused the motion.

39I also find that on November 2, 2019 the applicant requested that the respondent provide him with particulars of the redactions of the Log Notes. There was no response received from the respondent and even after the notice of motion and at a subsequent the case conference that set the timelines for the motion submissions the respondent still did not provide its position as to why the particulars that were already provided were sufficient or at least convey to the applicant that the particulars would be forthcoming thereby saving the applicant from bringing a motion.

40I find that the respondent acted in an unreasonable manner that it frustrated the Tribunal’s capacity to maintain an efficient proceeding and in a manner that was disrespectful to the applicant and in bad faith by ignoring the requests from the applicant and its obligations under section 50 of the Schedule.

41Section 50 of the Schedule provides that a benefit statement be provided every two months and part of the benefit statement to include the amounts paid by the insurer for examinations conducted under section 44 of the Schedule. The applicant submits he never received this information despite requesting this information in letters prior to the motion. It was not until the day before the motion that the respondent provided this information.

42When looking at the above collectively, the actions of the respondent do rise to the threshold of unreasonable and frivolous and even bad faith by not abiding to the Order of the Tribunal and by ignoring letters from the applicant.

43Therefore, I order costs payable by the respondent in the amount of $500.00. The costs must be paid within 30 days of the release of this motion decision and order.

ORDER

44For the reasons above, I order that within 30 days following receipt of this Order and Decision the following:

d. Costs payable by the respondent in the amount of $500.00

45All previous Orders of the Tribunal not varied by the Order remain in full force and effect.

Released: July 31, 2020

Monica Chakravarti Adjudicator

Footnotes

The Tribunal Order was issued June 3, 2019 and released July 2, 2019