Released: February 8, 2021
Tribunal File Number: 19-009684/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Nickesia Sheriffe
Applicant
and
Aviva Insurance Company of Canada
Respondent
PRELIMINARY ISSUE DECISION and MOTION ORDER
Order made by:
Ian Maedel, Vice Chair
February 2, 2021
OVERVIEW
1The applicant was injured in an automobile accident on July 30, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3A case conference took place on April 14, 2020 before Adjudicator Wallace. An in-person hearing was scheduled for February 8-12, 2021 in Toronto, Ontario.
4The issues in dispute are a non-earner benefit, four medical treatment plans, the cost of two examinations, interest, and an award.
5The adjudicator set two preliminary issue hearings in writing relating to productions at issue. The parties were instructed to provide written submissions for deadlines in April to June 2020.
6Unfortunately, decisions regarding these preliminary hearings were not provided in timely manner prior to the February 2021 hearing date.
PRELIMINARY ISSUES
Adjuster’s Log Notes
7The first preliminary issue identified in the Case Conference Order is:
i. Whether the Adjusters’ Log Notes should be produced to the applicant to the date of the application subject to redaction for privilege and information about reserves with a written explanation of the reason(s) for each redaction.
Parties’ Positions
8The applicant submits that given an award is in dispute, she has a prima facie right to production of the log notes. These documents are required to illustrate the reasoning behind the respondent’s decisions related to the continuing adjustment of the file. The dominant purpose of the log notes is the adjustment of the file and not for litigation purposes. Blanket claims of litigation privilege cannot stand, as there is no protected class of privilege relating to adjusting first party insurance claims. The applicant submits that forcing her to proceed without the log notes past the date of the application is an immense unfairness and a significant prejudice. Without an accurate record of adjustment, the applicant cannot otherwise determine the adjuster’s decision-making process and will be unable to prove the benefits were unreasonably withheld.
9The respondent submits that s. 5.4(2) of the SPPA does not authorize the Tribunal to make an order requiring disclosure of privileged information. As a result, the Tribunal lacks jurisdiction to produce the log notes if subject to litigation privilege, which arose when the applicant filed the application with the Tribunal. Litigation privilege attaches to documents prepared after litigation is reasonably contemplated. Log notes are presumptively privileged after the date of the application. The respondent submits that log notes relating to issues that have been settled, withdrawn or not at issue are not presumptively relevant to issues in dispute and thus not producible. In this instance the applicant has not particularized or demonstrated the relevance of the log notes to outweigh the presumption of privilege.
ANALYSIS and ORDER
10The applicant’s request for adjuster’s log notes beyond the date of the Tribunal application is granted. The respondent shall provide the applicant with the log notes from the date of loss to the date of this Order.
11Litigation privilege is not an absolute bar to providing the adjuster’s log notes past the date of the application. The log notes reflect the ongoing adjustment of the applicant’s claim for benefits and the decisions made by the adjuster throughout this process. The relevance of these notes must be broadly construed. They are prima facie relevant pursuant to Rule 9.3(e) and 9.1 of the Rules and thus presumptively producible. I am not satisfied the respondent has established an evidentiary basis to conclude that all of the log notes made after the date of this application are otherwise protected by litigation privilege. I am satisfied the applicant has established these documents are relevant and there is a nexus between the productions sought and the issues in dispute.
12In my view, it would present a procedural unfairness pursuant to Rule 3.1(a) if these log notes were withheld and the applicant was forced to proceed to hearing without prior knowledge of the adjustment of the file following the date of the application. However, I am also alive to the wording of s. 5.4(2) of the SPPA, which states the Tribunal’s power to make orders for disclosure does not extend to the production of privileged information. Certainly, solicitor-client privilege is sacrosanct, but in my view, the respondent may still redact privileged portions of the log notes, but clearly provide relevant details of the ongoing decision-making process related to the applicant’s file.
13I am similarly unpersuaded by the respondent’s submissions that only the log notes shall be produced that are relevant to the issues in dispute. Log notes are similar to clinical notes and records. Clinical notes and records are not generally redacted or otherwise withheld if they contain notations that may be irrelevant to the issues in dispute. Parsing out specific portions of the log notes is inconsistent with the consumer protection nature of the Schedule and the applicant’s right to obtain a record of the adjustment of her claim. The applicant is entitled to the total adjustment record of her file, redacted for privilege and reserves.
14The respondent shall produce the adjuster’s log notes both pre-application and post-application. This includes the log notes created after the application dated August 29, 2019 to the date of this Order. To preserve any claim of privilege and the privacy of reserve information, the log notes shall be redacted to exclude any of this material. However, each redaction shall be accompanied by an explanation that cites the privilege claimed and the subject matter of the redaction. This type of order is not novel and has been ordered by the Tribunal in similar cases since late 2018. The respondent shall provide a copy of the redacted log notes by April 9, 2021.
15The applicant shall provide the respondent with particulars of its claim for an award by July 12, 2021.
The 2010 Accident Benefits File
16The second preliminary issue identified in the Case Conference Order is:
ii. Whether the medical records from an accident benefits dispute in relation to a 2010 motor vehicle accident should be produced to the respondent from 2010 forward.
Parties’ Positions
17The respondent submits that without the production of all pertinent medical records it may be impossible for the insurer to determine the nature and extent of the applicant’s injuries and any causal link between events. The previous accident benefits file is relevant and will enable the respondent to determine whether benefits claimed for this accident are duplicative or unrelated. Given that causation is an issue, the failure to disclose these documents would prejudice the respondent’s ability to define and determine the applicant’s pre-accident medical condition. This is especially relevant given the test for non-earner benefits and the applicant’s condition and prognosis following the 2010 accident. The respondent submits that relevance, not the passage of time should be determinative regarding the production of these records.
18The applicant submits that records more than three-years pre-accident are not relevant. This request is over-broad and lacks sufficient probative value to the issues in dispute to warrant production of these documents. The standard period for production is one-year pre-accident, any period beyond this requires balancing the applicant’s confidential information with disclosure necessary to advance the claim. The applicant submits that relevance cannot be presumed beyond this one-year period. In this case, the non-earner benefit has a short span of entitlement, and three-years prior to the accident is sufficient to establish activities and life circumstances prior to the subject accident.
ANALYSIS and ORDER
19The applicant’s accident benefits file relating to the September 2010 accident shall be produced to the respondent.
20There is no definitive deadline for pre-accident productions. Productions are determined by relevance to the issues in dispute. In this matter, the subject accident was in July 2015 and the applicant is claiming non-earner and medical benefits. An accident five years prior involving a potential catastrophic impairment is relevant to the nature and extent of the applicant’s injuries prior to the 2015 date of loss. These records will specifically speak to the applicant’s functioning and her ability to carry on a normal life in the period between the 2010 accident and the subject accident in 2015.
21Given the issues in dispute and the potential for a causation defence, I do not find the production of the 2010 accident benefits file overly broad or remote. The probative value of these records outweighs any prejudicial effect to the applicant. The respondent shall have the opportunity to review these documents pursuant to the current claim for benefits. These documents speak directly to the test for non-earner benefits and may assist the Tribunal in a determination of whether the denied treatment is reasonable and necessary.
22The complete accident benefits file from the September 2010 accident shall be provided to the respondent by April 9, 2021. The file shall be redacted for privilege and reserves.
MOTION
23On January 26, 2021, the respondent filed a Notice of Motion requesting that the Tribunal;
i. An order to permit a summons for Oscar Hoyte, Investigator to appear at the hearing scheduled for February 8-12, 2021.
24On January 26, 2021, the respondent filed a Notice of Motion requesting that the Tribunal:
i. Adjourn the hearing schedule for February 8-12, 2021.
RELIEF
25The respondent’s motion to add Oscar Hoyte to their list of witnesses is granted. I am satisfied pursuant to Rule 8 that this witness may provide relevant evidence at the hearing.
26A summons may only be issued to a named individual. The respondent shall complete the Summons to a Witness Form and direct the summons to the named party. Once the request is received by the Tribunal, a summons shall be issued directing this witness to attend.
27The respondent’s motion to adjourn the hearing scheduled for February 8-12, 2021 is granted. This hearing cannot proceed, as decisions on the preliminary issues raised have yet been rendered.
28The hearing scheduled for February 8-12, 2021 shall be vacated.
29A videoconference hearing shall be scheduled for August 16, 18, 19, 20, 2021 commencing each day at 9:30 am.
30The respondent shall provide the applicant with adjuster’s log notes from the date of loss to the date of this Order by April 9, 2021.
31The applicant shall provide the respondent with a copy of the accident benefits file from the September 2010 accident by April 9, 2021.
32The applicant shall provide the respondent with particulars of its claim for an award pursuant to s. 10 of O’Reg. 664 by July 12, 2021.
33The parties shall exchange all productions they may rely on for the purposes of the hearing by July 12, 2021.
34The parties shall exchange a finalized list of witnesses by July 12, 2021.
35The parties shall exchange electronic hearing briefs by August 2, 2021.
36Except for the provisions contained in this Motion Order all previous orders made by the Tribunal remain in full force and effect.
OTHER PROCEDURAL MATTERS
37If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.
Date of Issue: February 8, 2021
Ian Maedel
Vice Chair