Law Times

Law Times • may 14, 2018 Page 5 www.lawtimesnews.com Judge bars accident victim from using documents BY MICHAEL MCKIERNAN For Law Times A Trenton, Ont. law- yer has questioned a judge's decision to ef- fectively shut down an accident victim's claim against a company that connects insurers with health professionals for in- dependent medical assessments. In Burwash v. Levy et al, Ontario Superior Court Jus- tice Charles Hackland found the plaintiff Joanne Burwash breached the deemed undertak- ing rule when she used docu- mentation — turned over by SCM Insurance Services during a tort action related to her acci- dent — to sue the company in a separate action. Burwash's claim alleges that emails and documents pro- duced during the earlier liti- gation suggested that a senior medical director at SCM, previ- ously known as CIRA Medical Services Inc., pressured an inde- pendent occupational therapist to change his opinion about the need for modifications at Bur- wash's home as a result of her injuries. Hackland made a point in his decision of noting that he was "not prepared to draw any definitive conclusions of im- propriety" against SCM based on the record before him "and without responding evidence or viva voce evidence to ad- dress these serious allegations," none of which has been proven in court. SCM also rejects Bur- wash's characterization of the documentation and her related claims. However, even assuming she had "an arguable case to support her allegations," the judge said he would still bar Burwash from using the documents. "I am not satisfied that the plaintiff has discharged her onus to satisfy the court that she should be relieved of her obli- gations under the deemed un- dertaking rule. As the Supreme Court has said this relief should be granted only in the clearest of circumstances and where the interests of justice require it," Hackland wrote in his March 26 decision. "I find that such cir- cumstances do not exist in this case." But Kris Bonn, a lawyer with Trenton-based personal in- jury boutique Bonn Law, says the seriousness of the claims demands a public airing, espe- cially considering ongoing con- cerns about the independence of medical experts in personal injury litigation. "I don't like the decision at all," Bonn says. "In my view, this is exactly the sort of case where relief should be granted and the evidence allowed in. I'm not saying the documents should be taken at face value, but if there is a reasonable explanation, it should be given in open court." "Here, the judgment has taken away the ability for the court and the injured party to hear what happened. The whole case appears to be built on these documents, and I would have thought that fairness would dic- tate it should proceed," he adds. According to Hackland's decision, Burwash launched both tort and accident benefits claims in early 2009 after suffer- ing injuries in a motor vehicle accident. Both proceedings included claims for $500,000 in damages to cover the cost of modifica- tions made to Burwash's house in order to accommodate her new medical needs. However, her accident ben- efit provider, Intact Insurance, refused to pay for the renova- tion, and Burwash ultimately took out a loan to pay for the changes on her own. As the tort action ap- proached trial before a judge and jury in late 2014, Burwash's lawyer requested a complete copy of SCM's file, concerning the records of all nine experts scheduled to testify. Six had per- formed accident benefits assess- ments on Burwash, while three more had carried out defence medicals for the tort insurer, but all were arranged by SCM's predecessor CIRA, according to Hackland's decision. In the volumes of reports and correspondence ultimately produced by SCM, Hackland's decision says Burwash found evidence that an occupational therapist hired to assess her home renovation treatment plan for the accident benefits case had originally concluded it was "reasonable and necessary" considering her functional limi- tations. However, by the time it was disclosed to Intact and Bur- wash, the report stated that the renovation plan was not reason- able and necessary. Burwash then used the docu- ments as the basis for her 2015 claim alleging the torts of induc- ing breach of contract by unlaw- ful means, deceit and negligence against SCM and a number of other defendants, claiming they revealed "significant evidence" of manipulated or altered expert reports. SCM moved to have the case stayed because the evidence was subject to the deemed un- dertaking rule, and Hackland agreed in the decision that its use was a breach of the rule. While Burwash argued she should be granted leave to use the documentation because it concerned her own personal health information, the judge denied the request, finding that SCM would be prejudiced when it wasn't even a party to the orig- inal tort litigation. "The effective functioning of the litigation system is pro- moted by participants having confidence the documentation they produce will not be used against them in subsequent pro- ceedings," he wrote. "I think this applies with even greater force to a third party being compelled to produce documents in a pro- ceeding where they have no di- rect interest." Rob Deutschmann, the prin- cipal at Kitchener, Ont. personal injury firm Deutschmann Law, says he thinks Hackland's deci- sion struck the right balance. "If a third party is providing information in another pro- ceeding, it's almost like a pub- lic service they're performing, so we don't want them getting burned if someone can turn around and use it against them," he says. "We want to make sure the f low of information in the civil justice process is as free as possible, instead of being hin- dered by concerns about self- incrimination." "The courts couldn't han- dle the number of trials that could potentially arise from all the claims in existence if we didn't have this kind of rule," Deutschmann adds. Although he says he is con- cerned by the seriousness of the misconduct alleged — but not proven — by Burwash, Deutschmann says he is com- forted by the availability of a regulatory complaint process against individual defendants where appropriate, since all are members of regulated profes- sions. "There are other avenues that remain open," he says. Lawyers for both sides de- clined comment because they have been unable to agree to the terms of an order f lowing from Hackland's decision, and they are due to appear before him again in early June to determine its full scope. However, plaintiff 's counsel Joseph Obagi, a partner at Ot- tawa firm Connolly Obagi LLP, says whatever order emerges from the further hearing is like- ly to be met with an appeal by one party or the other. LT NEWS What can you do about cyberfraud? Eliminate the element of surprise. AVAILABLE RISK-FREE FOR 30 DAYS Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # L7798-7799-65203 $103 Softcover approx. 250 pages August 2017 978-0-7798-7799-7 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Recognizing scams and attacks is the first step in raising a barrier against cyberfraud at work and at home. 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Rob Deutschmann

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