COURT FILE NO.: 307/02

DATE: 20040405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MILDRED NUNES

Applicant

• and -

ST. PAUL FIRE & MARINE INSURANCE COMPANY

Respondent

• and -

R.W. Lockhart, for the Applicant

L.A. Armstrong for the Respondent St. Paul

J.R. Conway, for the Respondent Commission

THE FINANCIAL SERVICES COMMISSION OF ONTARIO

Respondent

HEARD at Toronto: March 17, 2004

O’DRISCOLL J.:

I. Background

1On May 24, 2002, the Applicant, Mildred Nunes, launched an application for judicial review of the arbitration order of Arbitrator F. Sampliner, dated August 15, 2001 as well as the appeal order of the Director of Arbitrations, D.R. Draper, of the Financial Services Commission, dated April 24, 2002, each holding that the assessments in dispute incurred by Ms. Nunes for the purposes of the Regulation (s. 24 of the Statutory Accident Benefits Schedule) [SABS] to the Insurance Act were unreasonable, and, as such, the Respondent St. Paul Fire & Marine Insurance Company (St. Paul) was not under a duty to indemnify Ms. Nunes for the cost of the assessment.

2Counsel advise that the proceedings before the arbitrator on April 24 & 25, 2001 were recorded and a transcript of those proceedings exist. Indeed, counsel for St. Paul was quoting from the transcript during the course of this motion.

3On May 29, 2003, counsel for the Financial Services Commission (Commission) filed its record of proceedings.

4On October 23, 2003, counsel for the Applicant filed his “Application Record”.

5The Application Record discloses that:

1. On October 29, 1999, a former solicitor of Ms. Nunes wrote to St. Paul and said, in part: “Ms. Nunes is being assessed by her chosen treatment provider and an assessment will be sent to you upon completion”.

St. Paul did not agree and refused to pay the invoices sent to it by Profile Evaluations, a company incorporated in Ontario. Its services include the provision of services under s. 24 of SABS. Mark Rowe is “the manager and proprietor” of Profile Evaluations and Rod Hare is the “Clinical Director and proprietor of Profile Evaluations”.

2. When St. Paul refused to pay, Ms. Nunes, represented by Mr. Rod Hare, applied for mediation. The only issue was the cost ($5,800 plus interest) submitted by Profile Evaluations.

3. The dispute was not resolved at mediation. As Ms. Nunes’ representative, Mr. Hare filed an “Application for arbitration”. The amount in dispute had then risen to be $9,280.00 plus interest.

4. Mr. Rod Hare represented/acted for Ms. Nunes before the arbitrator. Ms. Nunes and Mark Rowe both testified before the arbitrator.

5. Following the arbitrator’s order of August 15, 2001, holding that the evaluations were not an reasonable expense payable under s. 24 of SABS – 1996, Mr. Hare and Mr. Rowe filed a Notice of Appeal on behalf of Ms. Nunes as her representative.

6. Mr. Mark Rowe represented/acted for Ms. Nunes on the appeal before the Director of Arbitration.

7. The Application Record for the judicial review contains an affidavit of Rod Hare, sworn June 19, 2003 and an affidavit of Mark Rowe, sworn June 20, 2003.

II. This Motion

6By Notice of Motion, dated March 11, 2004 and returnable on March 17, 2004, counsel for Ms. Nunes seeks:

1. An order permitting counsel for the applicant to amend the applicant’s application record to replace the affidavit of Rod Hare, sworn June 19, 2003 with the affidavit of Rod Hare, sworn March 10, 2004, and to replace the affidavit of Mark Rowe, sworn June 20, 2003 with the affidavit of Mark Rowe, sworn March 9, 2004;

2. An order permitting counsel for the applicant to amend the applicant’s factum to quote from the new affidavits in the amended Applicant’s Application Record, and to make according amendments to the footnotes and the Table of Contents;

3. An order directing the Respondent to file its materials with the Court in the form in which it was served on applicant’s counsel in November, 2003.

7With the Notice of Motion, counsel for Ms. Nunes filed:

(a) An affidavit of Rod Hare, sworn March 10, 2004 with exhibits attached and a further affidavit of Rod Hare, sworn March 14, 2004.

(b) Affidavits of Mark Rowe, sworn March 9, 2004 and March 15, 2004.

III. Position of Counsel for The Financial Services Commission of Ontario

8Mr. Conway, counsel for the Commission does not take any position on this motion.

IV. Position of Counsel for St. Paul

9Ms. Armstrong objects and points out that Messrs. Hare and Rowe appeared for/acted for and gave evidence on behalf of Ms. Nunes at the arbitration hearing. Moreover, there is a transcript of the proceedings and the written reasons of the arbitrator’s order and the order on appeal before the Director of Arbitration.

V. Conclusions

10No authority was shown to me that allows a party, in the absence of consent by the opposing party or parties, to withdraw an affidavit, once filed, and replace it with another affidavit by the same affiant.

11In Keeprite Workers’ Independent Union et al. and Keeprite Products Inc. (1980), 29 O.R. (2d) 513, the Court of Appeal for Ontario stated that affidavit evidence is only admissible on judicial review when it is necessary to disclose a breach of natural justice upon which the record is silent, or when it is necessary to show that there is a complete lack of evidence on an essential point. See also: Hinds v. Ontario (Superintendent of Pensions) (2002), 58 O.R. (3d) 367 (Ont. C.A.) at para. [18] to [23].

12It is open to counsel for the Applicant to put together a sealed package containing the proposed affidavits with a Notice of Motion, attached to the outside of the envelope, seeking leave to file further affidavit(s) and stating the purpose and object of the further affidavit(s) in the Notice of Motion. At the commencement of the argument on the judicial review, counsel for the Applicant may make his submissions to the panel of the Court as to why the members of the Court should allow these affidavits to be filed.

13Counsel for the Applicant should keep in mind:

1. There is a transcript of the proceedings before the arbitrator,

2. There are written reasons of the arbitrator and the Director of Arbitration,

3. Mr. Rod Hare acted for Ms. Nunes and Mr. Mark Rowe gave evidence before the arbitrator,

4. Mr. Rowe acted for Ms. Nunes on the appeal and

5. The decision of the Court of Appeal in Keeprite (supra).

VI. Result

14The motion is dismissed. Costs of this motion are left to the discretion of the panel of the Court hearing the judicial review.

O’Driscoll J.