Summons to Produce Third Party Records: An Issue of Procedural Fairness Where Timing is Everything By: Aryeh Samuel and Diana McBey
Aug 20, 2020
On a recent motion at the LAT, (Tribunal File No. 19-004635/AABS Addisalem Amare and Economical Insurance Company) Adjudicator Ian Maedel considered a motion brought by the Insurer, to have summonses to witnesses issued in advance of a hearing.
The LAT’s comments regarding the production of third party records in advance of a hearing are worth considering more closely.
In granting the relief sought, Adjudicator Maedel noted that the LAT does not have the power to compel third party documentary production outside of a summons, as set out in Rule 8 of the Common Rules of Practice and Procedure. Per Rule 8.2, a party is permitted to request that a summons for a witness be issued, but in making that request they must provide a brief explanation of the information the witness is expected to give at the hearing. The LAT noted that this requirement represents a “low bar” and is a “low threshold”.
While the Tribunal’s Rules are silent on the topic of the production of documents from a third party, section 12(1) of the Statutory Powers Procedure Act (SPPA) permits a Tribunal to require the production of evidence that is relevant to the subject-matter of the proceeding.
Timing of Disclosure:
The LAT then considered comments made by the Ontario Court of Appeal on the topic of summonses for production in advance of a hearing. The Court in Ontario (Human Rights Commission) v Dofasco Inc. noted that allowing summonses prior to a hearing, is a useful mechanism to ensure a just, expeditious and cost-effective determination of every proceeding on its merits. The Court pointed out that producing documents for the first time at a hearing would inevitably lead to requests for adjournments, which would be counter to the goals noted above. .
Adjudicator Maedel determined that the timing of production of the relevant documents requested by the Insurer was in and of itself an issue of procedural fairness As such the adjudicator found that he had the power to grant a summons for the individuals to provide the documents in advance of the hearing. He specifically noted “obtaining these documents in advance of the hearing is a procedural fairness issues. If these documents were produced by the summonsed party on the date of the hearing, this would inevitably lead to an adjournment request and further compromise the efficient, timely and proportional resolution of this matter on the merits”.
The value of efficient, proportional and timely resolution of proceedings on their merits cannot be overstated. The LAT is punctilious about achieving this goal and is therefore willing to compel the production of third party records, via a summons, in advance of a hearing. Insurers should consider whether there are documents in the possession of a third party that are relevant to the issues in dispute. If so, Insurers should not hesitate in bringing a motion for summons to compel the production of those documents in advance of a hearing.