CITATION: Ozdemir v. Economical Mutual Insurance Group, 2016 ONSC 5682
COURT FILE NO.: CV-11-4963-00
DATE: 20160913
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EROL OZDEMIR – and – ECONOMICAL MUTUAL INSURANCE GROUP
BEFORE: André J.
COUNSEL: Erol Ozdemir, the Plaintiff, on his own behalf
T. Hanrahan, for the Defendant, Economical Mutual Insurance Group
Harry Brown, for the non-party, Unica Insurance Inc.
Arif Sahinbay, non-party
HEARD: July 11, 2016 at Brampton
E N D O R S E M E N T
[1] The defendant Economical Mutual Insurance Group (“Economical”) brings a motion for the following relief:
(a) an order compelling non-party Unica Insurance Inc. (“Unica”) to provide Economical with a complete copy of all hearing exhibits from a 2014 Financial Services Commission of Ontario (“FSCO”) arbitration between Arif Sahinbay (“Mr. Sahinbay”) and Unica within 30 days;
(b) an order compelling Unica to provide Economical with a complete copy of all surveillance and investigation within 30 days; and
(c) an order compelling the plaintiff, Erol Ozdemir (“Mr. Ozdemir”) to attend a further examination for discovery on a mutually agreed date within 90 days.
[2] Mr. Ozdemir opposes the motion on the grounds that there is no evidentiary basis for it, and furthermore, that disclosure of the exhibits sought by Economical would violate International Law and his rights to privacy.
[3] For the reasons given, the motion is granted.
Facts
[4] On December 16, 2011, Mr. Ozdemir filed a statement of claim against Economical following a November 24, 2009 accident in which he claimed benefits for loss of income, attendant care, medical expenses, housekeeping and home maintenance.
[5] Specifically, Mr. Ozdemir claimed benefits for attendant care, housekeeping and home maintenance services provided to him by Mr. Sahinbay, who was similarly involved in a motor vehicle accident on April 9, 2010. Mr. Sahinbay claimed similar benefits as Mr. Ozdemir against his insurance company, Unica.
[6] Mr. Sahinbay pursued a FSCO arbitration with respect to his October 2014 accident. During the FSCO proceedings on October 14, 2014, Mr. Sahinbay advised the arbitrator that Mr. Ozdemir was his care attendant. He received compensation for ongoing attendant care, housekeeping and home maintenance benefits for services provided by Mr. Ozdemir from April 10, 2010.
[7] Similarly, Mr. Ozdemir claimed $6,000 a month for services allegedly provided to him by Mr. Sahinbay.
[8] Counsel for Economical cross-examined Mr. Ozdemir during a discovery hearing on February 21, 2013. One year later, in March 2014, Mr. Ozdemir was found to be catastrophically impaired. At the time of the first discovery, Economical was unaware that Mr. Ozdemir had provided attendant care to Mr. Sahinbay.
Court Orders
[9] Justice Emery ordered production of the FSCO arbitration transcripts on June 16, 2015.
Analysis
[10] This motion raises the following issues:
(i) Should production be ordered from Unica?
(ii) Should Economical be allowed to further examine Mr. Ozdemir?
Issue No. One: Should production be ordered from Unica?
[11] Mr. Ozdemir opposes production of any exhibits from Unica for a number of reasons. First, he submits that the exhibits sought include surveillance photographs which show his children. Disclosure of these photographs, he submits, would violate Canada’s Privacy Act, R.S.C. 1985, c. P-21 and Article 16 of the United Nations Convention on the Rights of a Child. Second, he maintains that production is unnecessary given that Mr. Sahinbay has not provided him with any attendant care since April 2010.
[12] Mr. Ozdemir filed a letter, purportedly written by a person named Ganna Garovykh, who wrote that since March 26, 2009, she provided attendant care to Mr. Ozdemir at the request of Mr. Sahinbay. Specifically, the letter states that:
I have been available for him (re: Mr. Ozdemir) 24/7 because, Arif Sahinbay is involved with an accident on April 9-2010 (sic) since then I have been available for him 24/7 because, Arif was in terrible condition and he couldn’t help Erol for about 1 year.
[13] In my view, production from Unica is warranted given Mr. Sahinbay’s testimony in October 2014 that he received attendant care form Mr. Ozdemir and the latter’s claim that he received similar care from Mr. Sahinbay during the same period. Mr. Sahinbay denied to this court that he had provided such care to Mr. Ozdemir despite his testimony to the contrary during the FSCO hearings.
[14] Similarly, Mr. Ozdemir denies receiving attendant care from Mr. Sahinbay despite claiming compensation for such care in his statement of claim. The letter from Ms. Gorovykh is not helpful to his position. It is clearly hearsay. However, counsel for the defendant, Mr. Hanrahan, consented to Mr. Ozdemir relying on it for the truth of its contents.
[15] If Ms. Gorovykh provided attendant care to Mr. Ozdemir 24/7 after April 10, 2010, then there is simply no basis for the plaintiff’s claim for compensation for the care he claimed to have received from Mr. Sahinbay. Furthermore, if Mr. Sahinbay received attendant care from Mr. Ozdemir as he claimed to have received, then it raises questions regarding the conclusion that he has been catastrophically impaired as a result of his motor vehicle accident.
[16] Mr. Ozdemir opposes production of the surveillance photographs because it would violate his privacy rights. The Privacy Act has no application in this matter given that s. 2 provides that the Act relates to personal information held by a government institution rather than by a private company. In any event, production would not violate Mr. Ozdemir’s privacy rights. The surveillance purports to show Mr. Ozdemir out shopping with Mr. Sahinbay. It apparently shows him engaged in what may be construed as normal outdoor activities which may be relevant to his claim of catastrophic impairment.
[17] Mr. Ozdemir also opposes production because the surveillance photographs contain images of his children. There is no indication that the photographs depict Mr. Ozdemir’s children in any kind of private activity or that they violate their personal integrity. Second, the photographs are relevant to the litigation to enable Economical to respond to Mr. Ozdemir’s claims of catastrophic impairment. Economical is entitled to any evidence which may enable it to fully respond to Mr. Ozdemir’s claims.
Issue No. Two: Should Economical be allowed to further examine Mr. Ozdemir?
[18] Courts have generally made an order for further discovery of a litigant if such an order is necessary to fulfill the purposes of discovery. Further discovery is warranted where there has been an important change in the facts: see Benedetto v. Giannoulias, 2009 29990 (ON SC), at para. 19.
[19] The purported change in Mr. Ozdemir’s condition between 2013 when he was first examined by Economical and 2014, when he was assessed as being catastrophically impaired, constitutes an important change in the facts. Economical is entitled to further question Mr. Ozdemir regarding the change in his condition. It is necessary that Economical be afforded an opportunity to question Mr. Ozdemir regarding his present medical condition and the attendant care, housekeeping and house maintenance expenses he now claims.
[20] Mr. Ozdemir cannot, on one hand, make a claim for compensation based on catastrophic impairment and maintain that Economical should not be afforded full opportunity to test these claims, on the other.
Conclusion
[21] Based on the above, I order that:
Unica Insurance Inc. shall provide Economical with a complete copy of all hearing exhibits from a 2014 FSCO arbitration hearing between Arif Sahinbay and Unica (FSCO File A12-003908) within thirty (30) days of this order;
Unica shall provide Economical with a complete copy of all surveillance and investigation of Mr. Sahinbay within thirty (30) days of this order; and
Mr. Ozdemir must attend a further examination for discovery on a mutually agreeable date within ninety (90) days of this order.
Costs
[22] Economical seeks costs in the amount of $7,500 on a partial indemnity basis while Mr. Ozdemir seeks costs in the amount of $100.
[23] In assessing what quantum of costs are fair and reasonable in this matter, I give consideration to the following:
(a) Economical has been substantially successful.
(b) The matter involved a fair amount of preparation including the filing of a factum and book of authorities.
(c) The issues were not complex and related to settled issues of law.
[24] Based on the above, I order that Mr. Ozdemir shall pay costs to Economical Mutual Insurance Group fixed in the amount of $5,000 inclusive. This amount may be deducted from any benefits which Economical may be ordered to pay Mr. Ozdemir in settlement of his claims against the company.
André J.
DATE: September 13, 2016
CITATION: Ozdemir v. Economical Mutual Insurance Group, 2016 ONSC 5682
COURT FILE NO.: CV-11-4963-00
DATE: 20160913
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EROL OZDEMIR – and – ECONOMICAL MUTUAL INSURANCE GROUP
BEFORE: André J.
COUNSEL: Erol Ozdemir, the Plaintiff, on his own behalf
T. Hanrahan, for the Defendant, Economical Mutual Insurance Group
Harry Brown, for the non-party, Unica Insurance Inc.
Arif Sahinbay, non-party
ENDORSEMENT
André J.
DATE: September 13, 2016