Production of Surveillance

November 29, 2009, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: Robert Bujold
Decision Date: August 11, 2009

Salvatore Suppa was injured in a motor vehicle accident on August 7, 2006. He applied for and received statutory accident benefits from Motor Vehicle Accident Claims Fund ("MVAC Fund"). MVAC Fund refused to pay a non-earner benefit to Mr. Suppa as well as the cost of an orthopaedic examination. The parties were unable to resolve their disputes through mediation, and Mr. Suppa applied for arbitration.

At the pre-hearing discussion on June 16, 2009, Mr. Suppa sought production of all surveillance that existed as well as forthwith production of any future surveillance that would be conducted. MVAC Fund refused to confirm whether any surveillance existed and further submitted that it only had to produce surveillance upon which it intended to rely. The parties were unable to resolve this issue.

The issue of the hearing was to determine if MVAC Fund was required to produce surveillance or investigative evidence whether or not it intended to rely on the evidence. Also, the hearing was to determine if MVAC Fund was required to disclose the existence of surveillance or investigative evidence whether or not it intended to rely on the evidence.

MVAC Fund resisted Mr. Suppa's requests including disclosure of whether any surveillance existed. MVAC Fund took the position that its obligation to produce surveillance or investigative evidence only arises when it decides to rely on any portion of surveillance or investigative evidence.

 
The arbitrator agreed with MVAC Fund that it was not obligated to produce surveillance or investigative evidence nor disclose its existence, unless and until it decides to rely on the evidence. If MVAC Fund intended to rely on any portion of surveillance or investigative evidence, then, at least 30 days before the hearing, it had to provide to Mr. Suppa all surveillance or investigative evidence and information required to be produced pursuant to Rule 40 of the Dispute Resolution Practice Code.

The insurer's production obligation only arises when it decides to rely on any portion of surveillance or investigative evidence.

For the reasons outlined in Poirier, Vo, Boyer and Hejnowicz, the arbitrator found himself bound by the decisions of the Director's Delegates on matters of interpretation, including the interpretation of the Code governing the dispute resolution process. Whether stare decisis (to abide by previously made decisions in the court) is to be regarded as a matter of law or convention, it makes practical sense that arbitrators at FSCO should follow the decisions of the Director's Delegates. Appeal decisions bring a certain measure of consistency and predictability to the law that is of benefit to both the parties and the administration of justice. Those laudable purposes would be thwarted should arbitrators find themselves free not to follow decisions of the Director (or his Delegates) in the exercise of the Director's legislated power to review the decisions of arbitrators of first instance.

The arbitrator also agreed with Arbitrator Slotnick in Graham, that there is nothing in the Code that compelled MVAC Fund to disclose whether it had undertaken surveillance. Further, and apart from the fact that there is no positive obligation in the Code, it seemed that if surveillance or investigative evidence need not be disclosed unless the insurer intends to rely on some portion of it, then the existence of such evidence would also be subsumed by the same requirement. The arbitrator saw no point of making it a requirement that an insurer disclose the existence of surveillance when there is no concomitant requirement to produce it.

As an aside, the arbitrator did not accept that MVAC Fund should be subject to more limited disclosure requirements because it did not have a contract involving the exchange of consideration and return for insurance coverage. Although MVAC Fund may not have stood in exactly the same position to an applicant as other "insurers," the arbitrator found it both inappropriate and unnecessary to devise different standards of disclosure for first party insurers and Her Majesty. In any event, the arbitrator found that MVAC Fund was not required to disclose any surveillance, or even whether any surveillance was conducted, unless and until it decided to rely on surveillance or investigative evidence. The arbitrator found this to be the case for any "insurer" and it was not necessary to distinguish MVAC Fund from other first party insurers.

In conclusion, MVAC Fund was neither required to produce surveillance or investigative evidence nor disclose its existence, unless and until it decided to rely on the evidence. If MVAC Fund intended to rely on any portion of surveillance or investigative evidence, then, at least 30 days before the hearing, it would have to provide to Mr. Suppa all surveillance or investigative evidence and information required to be produced pursuant to Rule 40 of the Code.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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