Production of Third Party Documents Not Necessary for Fair Arbitration

Before: Jessica Kowalski

Date of Decision: July 13, 2012Issues:

Mary Anthonipillai was injured in a motor vehicle accident on April 21, 2008. She applied for and received statutory accident benefits from Security National Insurance Co./ Monnex Insurance Mgmt. Inc. ("Security National"), payable under the Schedule.  Disputes have arisen between the parties regarding Ms. Anthonipillai's entitlement to certain accident benefits. A hearing before the Commission to determine entitlement is pending.

Security National brought a motion, pursuant to Rule 67 of the Dispute Resolution Practice Code (the "Code"), for an order compelling a third party, SG , to produce "a full and unedited copy of her academic schedule from the University of Toronto for the two-year period between April 21, 2008 and April 21, 2010." 

Result:

The motion is dismissed. 

EVIDENCE AND ANALYSIS:

SG is not a party to this application. She is Mrs. Anthonipillai's daughter and is alleged to have provided housekeeping and caregiving services to Mrs. Anthonipillai between April 21, 2008 and April 21, 2010. SG was a student at the University of Toronto during the time that the services are alleged to have been provided, but it is unknown if her studies were full- or part-time. She has not confirmed her status and has not responded to Mrs. Anthonipillai's counsel's requests for her records. 

SG did not participate in this motion despite being properly served. Prior to the motion counsel for Mrs. Anthonipillai wrote to the Commission to say that his client would not be participating and took no position, neither consenting to nor opposing the motion.

The records in question are not about a party to this application and do not contain any information about Mrs. Anthonipillai. Rather, they contain information about SG's school courses. Her school schedule sheds no light on Mrs. Anthonipillai's alleged impairments. Its relationship to Mrs. Anthonipillai comes in the form of essentially substantiating the caregiving and housekeeping receipts submitted to Security National. Security National finds the receipts submitted to be excessive and wants to challenge the time for services claimed before the hearing.

The test set out in Rule 67.7 of the Code requires, among other things, that before making an order for the production of documents against a third party, the document is reasonably required to ensure a just and fair hearing. Specifically, Rule 67.7 provides that:
 

67.7 Before making an order for the production of documents against a third party, the adjudicator shall be satisfied that;

1. the parties have made reasonable efforts to obtain the document sought;
2. the document sought is in the possession, control or power of the third party;
3. the third party has had a reasonable opportunity to respond;
4. the document is reasonably required to ensure a just and fair hearing.

The Arbitrator found that the parties have made reasonable efforts to obtain SG 's school schedule. To his credit, Mr. Sangha has written to SG as far back as February 3, 2012, telling her "please we need the document mentioned as soon as possible." On February 16, 2012, his office sent SG an authorization to sign and asked her about which University of Toronto campus she was attending. Mr. Sangha has provided to the Commission copies of e-mail and regular mail to SG requesting the schedule. The academic schedule is in SG 's possession and/or control, and she has had more than reasonable opportunity to respond. It appears that SG has ignored those requests.

Based on Security National's submissions, SG 's failure to produce her academic schedule at this time prejudices the parties' ability to engage in meaningful settlement discussions and possible efforts to avoid a hearing because no light has been shed on SG 's ability to devote the amount of time she has claimed to have assisted her mother with housekeeping and caregiving services while balancing her school schedule. 

If SG 's school schedule is a big obstacle to settlement, and if her mother wants to engage in settlement negotiations, SG may produce the material her mother has requested. If not, it may be that her mother is denied the opportunity to engage in settlement discussions and will proceed to a hearing, in which case Security National will have the opportunity to cross-examine Mrs. Anthonipillai and SG .

The Arbitrator was not persuaded that the records are so relevant that their non-disclosure now would prejudice a just and fair hearing so the Arbitrator therefore set aside privacy concerns around documents that contain information personal to a third party but none about a party to this proceeding.

Nor was the Arbitrator persuaded that the academic schedule is as probative as Security National asserts. That schedule will not disclose how often, or even whether, SG attended her classes.

For these reasons, the motion is dismissed.

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