March 18, 2015

SABS Update – Fishing for Irrelevant Cell Phone Records? We Don’t Think So

Phillips v Unica Insurance Inc., FSCO A13-009875, Adjudicator Isoken Osunde (Decision on a Motion)

MVC December 3, 2011. Ms. Phillips filed an application for Arbitration, dated August 8, 2013, claiming entitlement to certain accident benefits under the Schedule. After a pre-hearing on May 13, 2014, Unica brought this motion to compel productions.

Ms. Phillips was examined under oath on May 16, 2013. During her examination, she stated that on the day of the collision, a man named Anthony Johnson called her cell phone around 4:00 a.m. to request a ride with two of his friends. Ms. Phillips was not familiar with these friends. Her testimony was that she proceeded to give them a ride, and that the collision at issue occurred at this time.

An accident reconstruction investigation report, dated February 22, 2012, suggested that some of the damages claimed by Ms. Phillips were not related to the collision, despite her claiming otherwise. She undertook to provide Mr. Johnson’s contact information in order to corroborate her story. However, Ms. Phillips later advised that she could not locate his contact information.

Unica’s position was that Ms. Phillips’ cell phone records would assist them with locating Mr. Johnson to clarify the discrepancies. They argued that the circumstances surrounding the loss in terms of where Ms. Phillips was going, with whom she was travelling, where the loss occurred, and the nature of her relationship with the occupants of her vehicle were unclear, and that the evidence provided in relation to these details was inconsistent. Ms. Phillips argued that Unica does not dispute that the accident occurred, and there was no allegation of fraud. Therefore, the records were not relevant.

Adjudicator Osunde found that Ms. Phillips’ cell phone records for December 3, 2011 were not relevant to the determination of the substantive issues in dispute in this case, and therefore, she was not compelled to produce them.

Adjudicator Osunde cited sections 32.2 and 32.3 of the Dispute Resolution Practice Code and focused on the relevance of the requested records to the issues being arbitrated. At the March 13, 2014 pre-hearing, the parties identified and agreed that the following issues remained in dispute at the Arbitration hearing: medical benefits, cost of examinations, a weekly income replacement benefit, attendant care benefits, and a special award.

Adjudicator Osunde stated that absent any dispute as to whether or not a collision in fact occurred, or an allegation of fraud raised by Unica, issues like the discrepancies between Ms. Phillips’ testimony at an Examination Under Oath about the circumstances surrounding the accident, at best speak to her credibility. The Adjudicator was not persuaded that her cell phone records had any bearing on the issues in dispute, which was the entitlement to the benefits as outlined above. There was also no evidence that Mr. Johnson’s contact details were not available from other sources. Adjudicator Osunde found that the degree of relevance was very slight, highly speculative, and that the probative value of the records was not high enough to outweigh any prejudice caused to Ms. Phillips.

COMMENTS AND IMPLICATIONS

Insurance companies should not be allowed to go on fishing expeditions, and demand sensitive records that are irrelevant to the issues in dispute. As Adjudicator Osunde stated in this decision, cell phone records are of a sensitive and personal nature, and an insured should enjoy a right to a reasonable expectation of privacy. It must be made clear, as it was in this decision, that such records should not, and will not, be so easily compelled without the proper arguments made for their relevance.

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