At the Bar Dispute Resolution Group meeting on March 30, 2001 it was announced that the new Dispute Resolution Practice Code is expected to come into effect on April 30.

In Campeau and Liberty Mutual Insurance Company, A00-000522, March 12, 2001 the parties disagreed with respect to the production of expert reports, surveillance and investigation, the insurer's accident benefits file, the adjuster's file, the disclosure of reserves, the production of insurance manuals and production of the applicant's Canada Pension Plan file. The arbitrator found that IME and DAC reports were not privileged as examiners are obliged to prepare and serve reports pursuant to s. 64(10) and 65(3) of the SABS - 1994. It was also found that draft reports and clinical notes and records of the persons who prepared the reports are not privileged. An insurer's right to claim privilege for non-IME or DAC reports, however, is preserved by s. 5.4(2) of the SPPA, which states that a tribunal's power to make orders for disclosure "does not authorize the making of an order requiring disclosure of privileged information".

It was found that Rule 37 of the Code sets a minimum, not a maximum level of production regarding surveillance and investigative evidence. The arbitrator also referred to an endorsement in Perigny v.Royal Insurance Company of Canada, (Court File No.: 98-CV-158130, July 19, 2000) in which the court stated that "if some surveillance evidence is disclosed to the claimant, privilege is waived for all such evidence" (p. 9).

The insurer was ordered to produce copies of its complete accident benefits file up to the date that mediation was sought (p. 25). The arbitrator was not persuaded that litigation was the dominant purpose of the insurer's actions prior to the date that mediation was sought. In making this finding, however, the arbitrator still agreed with the insurer that the Insurance Act and the decision in Leitgeb does not give arbitrators the jurisdiction to generally inquire into the insurer's conduct. Rather, the arbitrator's mandate is to determine whether an insurer has unreasonably withheld or delayed payments.The insurer's request for "all the applicant's notes and records", was denied as the arbitrator found that the request was too broad and ambiguous.

Reserves

The arbitrator found that reserves are generally to be considered part of the overall insurer's file. The insurer bears the burden of establishing privilege, sensitivity particular to the claim, or some other reason to exclude production of the reserve information up to the date of mediation. It was found that Liberty Mutual had not met the burden in this case. Therefore, reserve information was not excluded from the production order.

The arbitrator denied the applicant's request for production of the insurer's manuals. He disagreed with the applicant's assertion that "the issue at hand is Liberty Mutual's handling of the claim". He found that the claim for a special award is restricted to whether the insurer has unreasonably delayed or withheld benefits. He was not persuaded that a prima facie case of relevance had been established for the production of manuals.

Legal Opinions

The applicant requested that the insurer advise whether it had obtained a legal opinion on causation or any other issue and to produce such opinions. The request was denied, with the arbitrator finding that there was no evidence that there was a waiver of solicitor/client privilege in the case, as there had been in Samoila.

The documents in the Canada Pension Plan file were found to be relevant and were ordered to be produced.

Rule 63.6 - Order to Exclude

In Glinka and Dufferin Mutual Insurance Company, P01-00002, March 7, 2001, the insurer argued that Ms. Glinka's agent, Mr. Spiegel, should not be permitted to represent Ms. Glinka on the appeal. At the arbitration hearing, Ms. Glinka had sought treatment expenses for chiropractic, physio and massage therapies. She was awarded a couple of additional months of treatment, but denied the bulk of the claim on the basis that she had failed to establish that the treatments were reasonable and necessary. Moreover, she was allowed only a portion of her assessment expenses.

Section 23(3) of the Statutory Powers Procedure Act and Rule 63.6 of the Dispute Resolution Practice Code allows adjudicators to exclude agents from hearings if it is found that they are not competent to properly represent the party or do not understand and comply with the duties and responsibilities of an advocate or advisor.

Counsel for the insurer urged that an exclusion order be made on the basis of the arbitrator's comments with respect to Mr. Spiegel's representation of Ms. Glinka, the negative comments made about Mr. Spiegel's conduct on a previous case (Grozdanovsky and Wawanesa Mutual Insurance Company, A99-000289, April 7, 2000) and on the basis of the submissions filed in support of the appeal, which he suggested showed that Mr. Spiegel was not competent to act on the appeal.

The arbitrator referred to Codina v. Law Society of Upper Canada, (1996) O. J. No. 3348, R. v. Romanowicz (1999), 45 O. R. (3rd) (506) (C. A.), and Practice and Procedure Before Administrative Tribunals, Macaulay and Sprague (Carswell) with respect to the issue of the right of adjudicators to exclude agents from hearings. Ultimately, the arbitrator found that it would not be appropriate to exclude Mr. Spiegel at that point in time, but required him to file an acknowledgement, signed by his client, if he was to continue to act. This requirement followed the reasons in Romanowicz, in which the Court of Appeal stated that a trial judge was under a positive duty to ensure that the decision to use an agent was an informed decision (p. 10). The acknowledgement was to contain the following information:

 

• Mr. Spiegel is not a lawyer;
• Mr. Spiegel is not a member of the Law Society of Upper Canada and is not subject to the supervision or discipline of a professional body;
• Mr. Spiegel is not required to carry insurance. An order for expenses in favour of Dufferin was made against her at arbitration stage, and as the injured party she was potentially liable for Dufferin's expenses at the appeal stage;
• Having been informed of the above she wanted Mr. Spiegel to act as her agent.

S.A.B.S. - 1996 - s. 2 - "Accident"

In Mahadan and Cooperators General Insurance Company, A00-000489, March 15, 2001 it was held that the applicant was not injured as a result of an "accident" as defined in s. 2(1) and the claim was dismissed. The applicant had fallen in his underground parking lot while unloading groceries from the trunk of his car. He twisted his left ankle and hit his arm on the trunk as he fell. The arbitrator noted that the present legislation is stricter than the previous legislation, in that it restricts accident benefits claims to injuries caused "directly" by the use and operation of a motor vehicle. Reviewing the facts of Mr. Mahadan's case, the arbitrator found that his car did not directly cause his injuries. A crack in the pavement, caused by construction in the parking lot, was found to be a new and independent source of his injury.

S.A.B.S. - 1994 - s.65 - Independent Medical Examinations

In Howard and Guardian Insurance Company of Canada, A00-000225, March 7, 2001 the applicant suffered injuries in a motor vehicle accident on April 3, 1996. Weekly income replacement benefits were paid for approximately four months post-accident. On April 5, 1999, however, the applicant reduced her work week. She alleged that this was attributable to the accident. In response, the insurer scheduled examinations with an orthopaedic surgeon and a psychologist. The applicant refused to attend the appointments. At the pre-hearing teleconference, Guardian made a motion that the hearing be stayed until the applicant attended the scheduled medical examinations. Finding that the insurer had discharged its burden of showing that the scheduled examinations were reasonable, the arbitrator adjourned the hearing pending Ms. Howard's attendance at the scheduled examinations, unless the parties agreed otherwise.

Ms. Howard had attended at hospital in March 2000 and there had been some suggestion made that she should stop working. Counsel for the insurer, however, was not advised of the hospitalization until May 2000. The arbitrator found that the timing of Ms. Howard's hospitalization tended to support the reasonableness of Guardian's request as it suggested there had been a change in Ms. Howard's circumstances since mediation and since the filing of the application for arbitration.

Catherine Zingg