Court File and Parties

COURT FILE NO.: CV-16-0207 DATE: 2020-09-02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donna Snutch, Plaintiff AND: MacEwen Petroleum Inc., 1576544 Ontario Inc., TDL Group Corp. and John Doe Ltd.

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Joseph C. Dart, for the Plaintiff Grant D. Bodnaryk, for the Defendants/Moving Parties, MacEwen Petroleum Inc. and 1576544 Ontario Inc.

HEARD: in writing, at Kingston

Endorsement

[1] Donna Snutch claims that she was injured as a result of an incident which occurred at a gas station on 9 June 2014. She was sprayed with gasoline and asserts that over the following months, she suffered from various symptoms which she ascribes to that incident.

[2] At the time of the incident, Ms. Snutch was working for a seafood distributor and store in Kingston. She stopped working in July 2015. The immediate cause for her stopping work was her hospitalisation for what was later determined to be mononucleosis.

[3] Ms. Snutch applied for long-term disability benefits from Empire Life shortly after she stopped working. At the time of her application, she says that she did not know what was causing her symptoms, but knew that she was sick. She therefore cited "sickness" as the basis for her LTD application, rather than injury. However, she says that she later came to believe that her illness was due to the gas station incident. LTD benefits were approved, and she ultimately obtained a lump sum payout of that benefit entitlement.

[4] In August 2015, having recently turned 60, Ms. Snutch began taking regular Canada Pension Plan payments. She was not aware at the time that she could apply to transfer her CPP pension benefits to a disability pension (which would have provided her with a higher payment). Some time later, she discovered that she could have applied to transfer her regular CPP pension payments to CPP disability benefit payments. She made an application to do so but was told that she was beyond the fifteen-month window for making such an application. She appealed. On 27 June 2019, a hearing took place before the Social Security Tribunal. According to an affidavit filed by a solicitor at the law firm representing the plaintiff, her appeal was unsuccessful because she could not bring herself within the fifteen month window. The affidavit continues:

The substantive merits of her claim, i.e. whether or not her impairments met the test for disability under the legislation, were never adjudicated.

[5] A person who wants to receive a CPP retirement pension is not eligible to apply for a disability pension under the Canada Pension Plan unless the retirement pension can be cancelled. A retirement pension can be cancelled in favour of a disability pension if the claimant is deemed to have become disabled in or after the month for which the retirement pension first became payable. In the case of Ms. Snutch, she applied for her pension in August 2015, her last day of work having been 11 July 2015. The legislation provides, however, that a person shall not be deemed to have become disabled earlier than fifteen months before the time of making any application. Since Ms. Snutch did not apply for CPP disability benefits until 1 August 2017, some two years after she started taking her CPP retirement pension, she was held not to be entitled.

[6] The moving defendants seek an order requiring production of all materials, including legal submissions, in relation to the CPP disability benefit application, as well as an order requiring the plaintiff to consent to the production of a transcript of the oral portion of her hearing before the Social Security Tribunal of Canada.

[7] The notice of motion states that "According to the Tribunal Decision, extensive materials were filed on behalf of the plaintiff".

[8] I have read the decision of the Social Security Tribunal (General Division – Income Security Section) dated 4 July 2019. It is relatively short. The only reference I can find which comes close to the representation made in the moving parties' motion record is this is the following passage from the tribunal decision:

I recognize the Claimant testified at length about her employment history [and] medical conditions…

[9] The moving parties submit, under the "facts" heading of their factum, that if the plaintiff "failed to mention the gas station incident in her CPP – D written submissions and sworn testimony, the omission casts a pall of doubt over the legitimacy of this lawsuit".

[10] The hyperbolical tone of the factum then goes up a notch:

It is illogical and improper for the Plaintiff to take the position that her explanation as to why she claims to have a severe and prolonged disability is irrelevant. The relationship between the lawsuit and the CPP – D hearing is obvious, since the entire point of the lawsuit is for the Plaintiff to pursue compensation for her health issues and resulting (alleged) impairments.

[11] As I see it, this production request boils down to two principal considerations: relevance and, (if applicable), proportionality.

[12] The plaintiff argues that courts have held that private insurance carrier files (including CPP disability pension files) are not, per se, disclosable in their entirety in non-motor vehicle accident cases. Rather, and generally, only the amount of benefits received and medical records are disclosed.

[13] I would not necessarily agree with that as a general statement of legal principle. If the record established that Ms. Snutch had actually applied for a disability pension and there had been an adjudication of that application on its merits, I would not rule out the possibility of the file being ordered to be produced. Nor would I rule out the possibility of requiring the production (or the obtaining) of a transcript of proceeding before the Social Security Tribunal of Canada (which is a statutory administrative tribunal).

[14] But that is not the present case. The best that the defendants can say is that the plaintiff attempted to convert her retirement pension into a disability pension and in doing so, "testified at length about her employment history and medical conditions". The issue before the Tribunal was not her entitlement to a disability pension and it is clear from the decision of the tribunal that her employment history and medical condition had nothing to do with the outcome. The representation in the notice of motion that "extensive materials were filed on behalf of the Plaintiff" is not borne out by the record.

[15] I would add that the plaintiff has already produced a CPP disability file consisting almost entirely of medical records (approximately 1200 pages).

[16] The defendants' motion bears all of the hallmarks of a fishing exhibition. But even if something was said by, or submitted on behalf of, the plaintiff concerning the gas station incident and its impact on her disability, given the extensive disclosure that has apparently already been made, the principle of proportionality would militate against ordering the further production requested.

[17] The motion is dismissed. I am presumptively of the view that the plaintiff is entitled to her costs of the motion on a partial indemnity scale, payable forthwith, and fixed in the all-inclusive amount of $1,000. However, if either party wishes to argue for a different disposition, that party can make a written submission of not more than three pages in length (plus a costs summary if applicable) within fourteen days of the release of this endorsement.

Graeme Mew J.

Date: 02 September 2020