Released Date: 05/11/2021
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:
Vahid Hosseini
Applicant
and
Economical Mutual Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
Savannah Chorney, Counsel
For the Respondent:
Jason Frost, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1The applicant, Vahid Hosseini, was injured in an automobile accident on May 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) from Economical Mutual Insurance Company, the respondent.
2The respondent denied the applicant’s claims for several benefits including non-earner benefits, attendant care benefits, housekeeping and home maintenance benefits, chiropractic treatment and expenses for damage to certain items. As a result, the applicant filed an Application by an Injured Person to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
3A case conference was held in this matter on September 29, 2020 during which the respondent raised two preliminary issues regarding production of documents pertaining to the applicant’s previous motor vehicle accident in 2007. As a result, a written hearing to determine the preliminary issues was scheduled.
PRELIMINARY ISSUES
4The following preliminary issues are to be decided:
(i) Is the respondent entitled to production of the applicant’s complete accident benefits (“AB”) file from his 2007 motor vehicle accident? If, not, what portions of the applicant’s 2007 AB file, if any, is the respondent entitled to?
(ii) Is the respondent entitled to production of the applicant’s long-term disability (“LTD”) file from his 2007 motor vehicle accident? If, not, what portions of the applicant’s 2007 LTD file, if any, is the respondent entitled to?
RESULT OF THE PRELIMINARY ISSUES
5The applicant shall produce to the respondent the complete 2007 AB file and the complete 2007 LTD file within 45 days of the date of this preliminary issue decision. The 2007 AB file shall be redacted for privilege and reserves. The respondent shall pay the reasonable fees for the applicant to obtain the complete 2007 AB file and the complete 2007 LTD file.
ANALYSIS
6Rule 9 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) permits the Tribunal to order disclosure that is considered necessary for a full and satisfactory understanding of the issues in dispute. In other words, the Tribunal has the power to order a party to produce any document or information that is relevant to the proceeding. The party seeking the production must establish a nexus between the information sought and the issues in dispute. There is also no definitive deadline for pre-accident productions.
7The respondent submits that both the complete AB file and the complete LTD file from the applicant’s 2007 motor vehicle accent are relevant and should be ordered produced by the applicant because:
(i) In the 2007 motor vehicle accident, the applicant sustained significant physical impairments including a traumatic brain injury, numerous broken bones and required several surgeries. The applicant was the driver in the vehicle where his mother, a passenger, died as a result of her injuries in the 2007 accident which also led to the applicant sustaining significant psychological impairments;
(ii) The applicant did not return to his pre-2007 accident employment as a bus driver for the Toronto District School Board due to residual physical and neurocognitive impairments from the 2007 motor vehicle accident. As a result, the applicant was in receipt of LTD and CCP disability benefits at the time of the subject accident as a result of his impairments from the 2007 accident;
(iii) The requested productions are relevant as the substantive issue in this matter include entitlement to non-earner benefits, attendant care benefits and housekeeping and home maintenance benefits. It is the respondent’s position that the requested documents are required for a full and satisfactory determination of the issues in dispute and, in particular, to determine the applicant’s claim for non-earner benefits. The respondent submitted that it is reasonably anticipated that the 2007 AB file and the 2007 LTD file contain relevant information and documentation regarding the applicant’s injuries and impairments and their affects on the applicant’s activities of daily living prior to the subject accident;
(iv) The medical records that have been provided by the applicant thus far for the period prior to the subject accident show that the applicant was continuing to have ongoing complaints and difficulties from impairments sustained as a result of the 2007 accident;
(v) It is reasonable to expect that the documents requested would contain probative information regarding whether there were any ongoing medical restrictions and treatment or care recommendations as a result of the 2007 accident that were considered necessary on a continuing basis regardless of the subject accident;
(vi) In addition to the issues of causation and entitlement, the applicant’s LTD file is also required to determine the quantum of NEBs payable. If the application is found to be entitled to NEBS, the respondent is able to deduct LTD benefits from NEBs payable pursuant to s. 47(3)(f) of the Schedule;
(vii) The documents requested are not covered by any form of privilege;
(viii) It is more cost effective to have the entire files produced rather than having someone assessing each individual document contained in the files; and
(ix) The Tribunal has jurisdiction to make such a production order and procedural fairness dictates that an order requiring the applicant to produce his complete 2007 accident file and 2007 LTD file is issued.
8The applicant disagreed and submitted that he should not be required to produce the documents as requested to the respondent for the following reasons:
(i) the respondent’s request for the complete 2007 AB file and the complete 2007 LTD file is overly broad and is not necessary for the full and satisfactory determination of the issues in dispute;
(ii) the applicant has provided clinical notes and records (“CNRs”) from his treating physicians for three years prior to the accident, these records are sufficient for the purposes of this matter and no further production is required;
(iii) The 2007 accident was 11 years prior to the subject accident and, given the period between the two accidents, the documents as requested by the respondent are not relevant to the determination of the applicant’s entitlement to benefits arising from the subject accident;
(iv) Information on the applicant’s health and functioning and the extent to which the applicant was experiencing any physical or psychological issues or impairments prior to the subject accident will be contained in the CNRs that have been produced to the respondent;
(v) The respondent is engaging in a fishing expedition for potentially prejudicial file materials in the historical records; and
(vi) Two prior decisions of the Tribunal, D.M. v. Toronto Transit Commission, Re.1 and P.Z. v. Unifund Claims Inc., Re.,2 support his position that three-years pre-accident is an appropriate timeframe for pre-accident medical documents to be produced and this is sufficient for a full and satisfactory determination of the issues in dispute.
9In this matter, the subject accident was on May 1, 2018 and the applicant is claiming, among other benefits, NEBs, attendant care benefits and housekeeping and home maintenance benefits. While an accident occurring some 11 years prior to the subject accident would not typically be considered relevant, I find that this is an extraordinary situation and that the 2007 accident, where the applicant lost his mother and sustained significant orthopaedic injuries, is relevant to the nature and extent of the applicant’s injuries prior to the 2018 date of loss. I agree with the respondent that both the complete 2007 AB file and the complete 2007 LTD file will specifically speak to the applicant’s functioning and to his ability to carry on a normal life in the period between the 2007 accident and the subject accident especially given that he had not returned to his pre-2007 accident employment.
10Moreover, given the issues in dispute and the potential for a causation defence, I do not find the production of the complete 2007 AB file and the complete 2007 LTD file overly broad or remote. The probative value of these records outweighs any prejudicial effect to the applicant, and the respondent has offered to pay the reasonable costs associated with obtaining the requested documents. I am also confident that these documents will speak directly to the test for NEB entitlement and may assist the Tribunal in a determination of whether the other denied benefits are reasonable and necessary.
11I am also not persuaded or bound by the decisions relied upon by the applicant. I also find that the decisions in both D.M. v. TTC and P.Z. v. Unifund are distinguishable on the facts as the applicant in those two decisions were not involved any accident, let alone one of such significance, prior to the accident giving rise to the claims in those matters. I am also not persuaded by the order relied upon by the applicant in Sitaram v. RSA Insurance3 where the respondent’s request for production of a prior AB file was denied because in that decision, NEBs were not in dispute whereas they are in this matter.
12For all the reasons set out above, I find that the complete 2007 AB file and the complete 2007 LTD file shall be provided to the respondent within 45 days of the date of this preliminary issue decision.
ORDER
13I order:
(i) The applicant to produce to the respondent the complete 2007 AB file and the complete 2007 LTD file within 45 days of the date of this preliminary issue decision. The 2007 AB file shall be redacted for privilege and reserves;
(ii) The respondent shall pay the reasonable fees for the applicant to obtain the complete 2007 AB file and the complete 2007 LTD file; and
(iii) Within 30 days of the release of this preliminary issue hearing decision, the Tribunal will schedule, and the parties shall attend, a resumption of the case conference to schedule a hearing in this matter to determine the substantive issues in dispute.
Released: May 11, 2021
Lindsay Lake
Adjudicator