Kristyn Short v. Allstate Insurance Company of Canada, 2023 CanLII 72639

Licence Appeal Tribunal File Number: 22-004438/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:

Kristyn Short

Applicant

and

Allstate Insurance Company of Canada

Respondent

MOTION ORDER

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Brent McQuestion, Counsel

For the Respondent: Emily A. Beauvais, Counsel

Date of Order: July 28, 2023

BACKGROUND

1The applicant was injured in an automobile accident on November 28, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

MOTION

2The respondent filed a Notice of Motion dated July 21, 2023 requesting that the Tribunal quash the summons for Ms. Kelly Charlebois.

RESULT

3The respondent's motion is granted.

ANALYSIS

4Ms. Charlebois is the Director of Clinical Services & Operations at Benchmark Independent Medical Examinations Inc. Benchmark arranged independent assessments regarding the benefits at issue in the application.

5The respondent argues that the summons must be quashed because Ms. Charlebois has no relevant evidence and because the scope of the documents it requires her to produce is excessively broad and general.

6The applicant submits that Ms. Charlebois’s evidence is relevant to her claim for an award under s. 10 of Regulation 664: Automobile Insurance. She argues that the independent assessors’ draft reports show that unidentified persons inappropriately requested substantive changes. She seeks to examine Ms. Charlebois on the methodology of the independent assessments, including Benchmark’s quality assurance process.

7In Elmaati v Canada (Attorney General), 2013 ONSC 3176 at paras 61-68, the Court set out the principles that govern whether to quash a summons for a motion or application under Rule 39.03(5) of the Rules of Civil Procedure, RRO 1990, Reg 194. The Divisional Court adopted them in PowerServe Inc. v Ontario College of Trades, 2015 ONSC 857 (Div Ct) at para 15, and the Tribunal applied essentially the same in 10179 v Director under the Consumer Protection Act, 2016 CanLII 50121 (ON LAT) and Julian Hotchkiss v Kingsway General Insurance Company, 2011 ONFSCDRS 116 (FSCO). The principles relevant to this motion are as follows:

1. A summons may be quashed if the evidence sought is not relevant or the examination would amount to an abuse of process.
2. The applicant must establish that the evidence is relevant and that the witness is in a position to provide the evidence.
3. If the evidence is relevant, the respondent must establish that the examination is an abuse of process.

8I find that the summons must be quashed because the applicant has not established that Ms. Charlebois has any evidence relevant to the application, and because it is an abuse of process.

9The applicant has provided no reason to believe that Ms. Charlebois was one of the people who requested changes to the independent assessment reports, or that she was involved in the independent assessments at all. The only evidence before me regarding her possible involvement is her job title, which implies that she is a high-level administrator. That she personally intervened in the independent assessments is pure speculation. Any evidence she could provide about Benchmark’s general methodology for independent assessments and its quality assurance process is not relevant to the claim for an award, which is based on the propriety of specific proposed revisions to specific reports. The applicant may obtain this evidence directly from the independent assessors on cross-examination.

10The summons is an abuse of process because it breaches the Case Conference Report and Order (“CCRO”) and because it requires Ms. Charlebois to produce an excessively broad and poorly defined array of documents:

1. The CCRO listed whom the parties would call as witnesses and stated that the hearing shall be limited to the exhibits filed and those witnesses’ testimony. Ms. Charlebois is not listed as a witness. In a Motion Order dated July 20, 2023, the Tribunal ordered that the applicant may also call Mr. Sean Shahrokhnia as a witness. The applicant did not request or obtain an order permitting her to call Ms. Charlebois as a witness.
2. The summons requires Ms. Charlebois to produce “any and all information in [her] possession or under [her] control relating to Kristyn Short.” This requirement is broad and vague. It would be unduly burdensome and leave Ms. Charlebois uncertain which documents she must produce. Given that failure to comply with this requirement is punishable in like manner as contempt of court, it is unfair to put her in that position: Statutory Powers Procedure Act, RSO 1990 c S.22, s. 13(1). Furthermore, a summons may not be used to conduct a general discovery, and may be quashed as an abuse of process on that basis: 10179 v Director under the Consumer Protection Act at paras 19-25, citing Payne v Ontario Human Rights Commission, [2000] OJ No 2987 (CA), 2000 CanLII 5731 (ONCA) at paras 165-166.

11The applicant relies on Julian Hotchkiss v Kingsway General Insurance Company, in which the Financial Services Commission of Ontario declined to quash a summons for an adjuster. That case is distinguishable. The Arbitrator found that the adjuster would have had first-hand knowledge of the events in question because she was the person responsible for handling the accident benefits file. In this case, the applicant has not established that Ms. Charlebois has any such first-hand knowledge.

ORDER

12The summons for Kelly Charlebois is quashed.

13Except for the provisions contained in this Motion Order all previous orders made by the Tribunal remain in full force and effect.

14If the parties resolve the issues in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

15I am not seized of this matter.