DRPC - Rule 32 - Production of AB File

In Dyczok v. Wawanesa Mutual Insurance Company, A02-000766, October 14, 2003, Arbitrator Blackman ordered Wawanesa to produce a detailed affidavit of documents, as well as a certificate signed by a lawyer that he or she had explained to the deponent the necessity of making full disclosure of all documents relating to its accident benefits file arising from Mr. Dyczok’s October 19, 2000 motor vehicle accident. In making the order the arbitrator, stated that “the specifics of each dated log or computer entry is required; a “boiler plate” Affidavit of Documents will not suffice” (p.10).

Counsel agreed that mediation was sought on October 12, 2001. At the motion on September 16, 2003, counsel for the applicant expanded the production request to include production of the file of the insurer’s counsel, Mr. March (p.6). As no notice had been given of this production request, Mr. March requested an adjournment. Counsel for the applicant then restricted the production request to exclude counsel’s file, but still requested any legal opinions or communication received by Wawanesa from its counsel (p.6). Arbitrator Blackman refused the adjournment request, finding that the motion record of August 11, 2003 specifically sought, amongst other things, production of Wawanesa’s “entire” accident benefits file (p.6). The arbitrator found that the word “entire” reasonably encompassed any correspondence or opinions in Wawanesa’s possession received from counsel (p.6).

In a pre-hearing letter dated September 9, 2002, Arbitrator Bayefsky had ordered that the insurer would provide its accident benefits file up to the date mediation was applied for, subject to any specific claims of privilege (p.7). At the motion before Arbitrator Blackman, Mr. March was asked whether privilege was being sought for anything in addition to the 13 items listed in the insurer’s Schedule “B”. Mr. March responded that he was not prepared to say for which documents privilege was being claimed (p.8).

Under the authority of Section 23 of the Statutory Powers and Procedure Act, the Arbitrator Blackman found that he had the power to order production of an affidavit of documents as the case presented exceptional circumstances where fairness required that he make such an order. In his reasons, he stated:

I am concerned that Wawanesa may have implicitly varied Arbitrator Bayefsky’s order, by adding its own limitations. I am concerned as to how a centimetre of production turned into three centimetres. I am concerned that broad arguments are still being made about possible privilege for the pre-mediation period, notwithstanding that details of any specific claim for privilege for that period have never been provided in the year following the initial order. I am concerned that Wawanesa now refuses to advise which documents it submits are not producible. I am concerned that rather than hearing that counsel has impressed upon his principal the necessity of making full disclosure, I am hearing that one cannot be responsible if a document has inadvertently fallen on the floor (p.10).

Finding that Wawanesa had ample time in which to advise of any specific claims of privilege for the period on or before October 12, 2001, but had not done so, the arbitrator held that they had waived any such claims up to that date (p.10).

The arbitrator also rejected Wawanesa’s submission that it would not produce any documents that were prepared after mediation was applied for:

Having determined that Mr. Dyczok is not entitled to production of Wawanesa’s entire file, it is also necessary to address Wawanesa’s present position that it is not prepared to produce anything created after mediation was sought. Campeau and Liberty Mutual Insurance Company, A00-000522, March 12, 2001, set the date of the application for mediation as a general dividing line between producible and non-producible insurer documentation. This was, however, in the context of claims of privilege regarding an adjuster’s notes. Such a dividing line does not apply to all documentation in an insurer’s possession, such as, for example, DAC reports and records, IE reports and records, documentation received from the application and treatment providers, or surveillance and investigation (for which a separate rule, under the code, applies) (p.13).

The arbitrator was prepared to make further determinations with respect to production, once he received the detailed affidavit of documents. At the time of the order, however, he had ruled that the insurer had not waived privilege for the post mediation period (p.14).

In Snook v. ING Insurance Company of Canada, A02-000728, September 15, 2003, the insurer requested the production of defence medical reports from Ms. Snook’s tort claim (p.2). Ms. Snook objected to the request. Arbitrator Sandomirsky ordered four of the nine requested reports to be produced. The arbitrator distinguished the decision of the Court of Appeal in Tanner v. Clark and Reimer v. Christmas (2003), 63 O.R. 508, (C.A.) on the basis that it did not address the question of production of documents in an arbitration proceeding (p.5). ING was in possession of a number of expert reports and assessments that pre-dated the termination of benefits in October 1999. The arbitrator found that ordering production of the tort defence reports from that period would result in a “doubling up” of the assessments and potentially lengthen and complicate the hearing process (p.6). Accordingly, the reports from that time period were not ordered to be produced. Following the termination of benefits, however, ING advised that it did not have any medical examinations or assessments. The arbitrator accepted that production of these medical documents would provide the insurer with reasonable disclosure and not result in a “battle of numbers”. Accordingly, she ordered production of the four reports that post-dated the termination of benefits.

SABS - 1996

Section 2 - “Accident”

In Miko v. York Fire & Casualty Insurance Company, A02-000985, September 18, 2003, Arbitrator Sampliner held that the applicant had not been injured in an “accident” pursuant to s. 2(1) of the Schedule. On July 13, 2001, Mr. Miko went to retrieve a package from his friend’s van, which was parked on the street (p.2). After taking the package out of the van, he locked the door, turned and stepped onto the adjoining sidewalk and was struck by a bicycle. The arbitrator found that Mr. Miko’s proximity to the vehicle and retrieval of the package was coincidental, but not the direct cause of the injuries (p.3). The arbitrator also found that being struck by the bicycle was a new and independent intervening force because it did not emanate from or arise out of an ordinary use normally attached to an automobile (p.3).

DRPC - Rule 70 - Withdrawal of Solicitor

In an appeal decision, Gracey and Carranza v. Alamin, P03-00001, September 11, 2003, Arbitrator Wilson’s order of December 13, 2002 was revoked and Moira Gracey, Juan Carranza and the Carranza Law Firm were removed as solicitors of record without conditions. Arbitrator Wilson had set several conditions upon the withdrawal of the Carranza Law Firm from the arbitration hearing.

Prior to the commencement of the hearing in April 2002, Ms. Gracey moved to withdraw as solicitor of record. Arbitrator Wilson refused, and twice adjourned the withdrawal motion pending receipt of further medical evidence of Mrs. Alamin’s mental capacity (p.2). The conditions of withdrawal included an order that the Carranza law firm was to ensure that its documentary production obligations in the matter had been completed and the firm had been ordered to make a duly qualified barrister and solicitor, familiar with the file, other than Ms. Gracey, available to appear as amicus curiae, without funding, at any resumed pre-hearings and at the hearing in the matter which was scheduled for the spring of 2003. Director’s Delegate Makepeace found that the arbitrator erred in law with respect to his assessment of Ms. Gracey’s conduct and had exercised his discretion unreasonably (p.12). Arbitrator Wilson had made a statement that Ms. Gracey moved to withdraw less than two weeks before the scheduled start of the April 8th hearing, when in fact she had given her first notice that she no longer represented Mrs. Alamin on March 4^th, two weeks after terminating the retainer and five weeks before the hearing. It was also found that the arbitrator’s ultimate acceptance of Mrs. Alamin’s capacity undermined his finding that the Carranza law firm failed to satisfy its undertaking to have a litigation guardian appointed (p.13).

The Director’s Delegate also found that there was no authority for requiring counsel to bring “credible evidence that the alleged breakdown in the solicitor/client relationship was not due to, or related to the capacity issues previously identified”.

With respect to Arbitrator Wilson’s order that the Carranza law firm provide a lawyer to act as amicus curiae, the Director’s Delegate found that the Insurance Act does not authorize an arbitrator to order a solicitor to intervene without consent or compensation (p.18). The order was found to be plainly beyond the arbitrator’s authority (p.18). Finally, it was also found that the arbitrator had exceeded his authority and erred in law by ordering the Carranza law firm to pay expenses as the “moving parties” of the motion.

SABS - 1996

Section 4 - Post 104 Weeks

In Smillie v. State Farm Mutual Automobile Insurance Company, A02-000039, September 12, 2003, Arbitrator Evans held that the applicant was not entitled to receive benefits beyond 104 weeks. On January 6, 1999, Mr. Smillie lost control of his truck, which slid into the opposite lane and was struck broadside by another pick-up truck (p.2). The impact was severe and Mr. Smillie complained of severe low back pain and spasms with radiation into his legs and feet, especially on the right, neck pain with initially some numbness even into his face, and headaches and sleep problems (p.3). He worked as a mover at the time of the accident.

The arbitrator noted that credibility is important in chronic pain cases. The arbitrator found that Mr. Smillie’s memory was selectively vague, and he even misinformed some people (p.27). In addition, surveillance showed that he changed his behaviour when he knew or suspected he was being observed (p.27).

In denying Mr. Smillie’s claim for further benefits, the Arbitrator Evans found that Mr. Smillie purposefully limited his choices for finding alternative occupations (p.13). In his reasons, he made the following findings:

Mr. Smillie submitted that he went back to his strength, horse breeding, but he needed financing that despite some promises was never forthcoming. However, Mr. Smillie’s argument does not address the issue of whether he was physically incapable of returning to that occupation. There is no evidence of incapacity and, as seen above, Mr. Smillie devoted considerable effort to pursuing horse breeding while refusing State Farm’s proposals. I find that, having chosen this type of work, Mr. Smillie cannot then rely upon his inability to secure employment in this area because that inability has nothing to do with his injuries (p.13).

SABS - 1996

Section 25 - Death Benefits

In Totic v. Primmum Insurance Company (formerly Canada Life Casualty), A01-000732, September 4, 2003, the applicant was awarded $35,000.00 in death benefits pursuant to paragraphs 25(2) and (3) of the Schedule. Aleksandar Totic was killed in a motorcycle accident on September 5, 1998. He had lived with his parents and brother in a home which they jointly owned. His parents had been injured in a motor vehicle accident in 1995. Unable to return to their respective jobs, they applied for social assistance benefits in December 1997. Another son, Nenad, had been employed in electronic sales up to January 1998, at which time he was laid off. Nenad collected employment insurance benefits. Aleksandar Totic had earned $50,086.03 in the year prior to his death at National Steel Car Limited.

The arbitrator found that a fair estimate of the family’s monthly expenditures was $4,308.45 a month. Primmum calculated Mr. Totic’s monthly expenses at approximately $870.00. The arbitrator, however, found that each member of the household was responsible for an equal share of the expenses and therefore Mr. Totic’s financial needs amounted to $1,077.11 a month, representing a quarter of the household expenses. Primmum assumed that Mr. Totic was the sole recipient of social assistance payments which were $901.00 a month. Following the reasons in Ahmed v. Allstate Insurance Company of Canada, A-003995, May 18, 1994, the arbitrator found that it was reasonable to attribute only half to Mr. Totic which would amount to $497.66 a month. Based on the evidence it was found that Aleksandar had made up the shortfall between his father’s expenses of $1,077.11 and his income of $497.66 a month. Accordingly, it was found that Mr. Totic was dependent upon his son Aleksandar. Mr. Totic requested a special award, but the claim was denied. There was evidence that Primmum did not receive a response to its letters requesting additional documentation. With respect to interest, the arbitrator considered what an application for benefits consists of. The application for death benefits was received in January 1999, although the supporting documentation was not received until later. The arbitrator found that she could not conclude, based on the clear wording of the Schedule that the meaning of the term “application for benefits” in s. 41(1) included the form and all the documents supporting the application (p.13). Therefore, it was found that Mr. Totic was entitled to interest starting from 30 days after the insurer received the application in January 1999.