Neutral Citation: 1999 ONFSCDRS 64
FSCO A98-000772
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARCEL CARRIÈRE
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
PRE-HEARING ORDER
Before:
David Evans
Heard:
By telephone conference call on March 14, 1999.
Appearances:
Yves Boucher for Mr. Carrière
Giovanna Roccamo for Motor Vehicle Accident Claims Fund
Sylvia Corthorn for Royal Insurance Company of Canada
Issue:
The Applicant, Marcel Carrière, was injured in a motor vehicle accident on August 14, 1994. He was a passenger in an uninsured motor vehicle. He applied for and continues to receive statutory accident benefits from the Motor Vehicle Accident Claims Fund ("the Fund"), payable under the Schedule.1 The Fund alleges that Mr. Carrière was properly insured by Royal Insurance Company of Canada ("Royal") at the time of the accident. The parties were unable to resolve their disputes through mediation, and Mr. Carrière applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
At the first pre-hearing of this matter, I scheduled a hearing for two weeks in October and November 1999 to deal with the matter of the Fund's continuing liability to pay benefits. (Royal's further defences relating to limitation periods, material misrepresentation and change of risk will be heard later, if necessary.) One issue in this matter is whether or not Mr. Carrière was a dependant of his parents.
Examinations for discovery of Mr. Carrière, his brother and his father have already been held in related tort litigation. The Fund, supported by Mr. Carrière, has moved that the resulting transcripts of the evidence with respect to the dependancy issue be admitted into evidence at the arbitration hearing in lieu of viva voce evidence. Counsel for Royal, who cross-examined the parties at the discoveries, objects.
The issue in this hearing is:
- Is it appropriate to order that the transcripts from the examinations for discovery in the tort action be admitted at the arbitration hearing in lieu of viva voce evidence?
Result:
- It is not appropriate at the pre-hearing stage in this case to order that the transcripts from the examinations for discovery in the tort action be admitted at the arbitration hearing in lieu of viva voce evidence.
EVIDENCE AND ANALYSIS:
The Fund and Mr. Carrière are seeking a ruling not only that the transcripts are admissible but that the hearing arbitrator is to rely on them on the issue of dependancy instead of hearing from the witnesses directly. Royal does not consent and submits that the examinations are incomplete, requiring further questioning arising from answers to undertakings. Royal also submits that at no time prior to the examinations was it agreed that the transcripts would be used for any purpose other than the tort litigation.
The Statutory Powers Procedure Act2 ("SPPA") provides in section 15.1 that a tribunal may treat previously admitted evidence as if it had been admitted in a proceeding before the tribunal, if the parties to the proceeding consent. In the present case there is no consent and the transcripts have not been previously admitted. I find that section 15.1 does not apply.
The power conferred by section 15.1 is in addition to the tribunal's power to admit evidence under section 15.3 I find that the broader powers in section 15 lead to a review of the relative functions of pre-hearing and hearing arbitrators.
It is true that the Dispute Resolution Code and the SPPA give a pre-hearing arbitrator a broad authority. Arbitrator Bayefsky summarized as follows:
Section 5.3 of the recently amended SPPA, the legislation prescribing minimum procedural rules for administrative tribunals, sets out the authority of a tribunal in the context of a pre-hearing conference. As long as a tribunal has adopted rules governing pre-hearings (in the Commission's case, the Practice Code), the tribunal can conduct a pre-hearing to consider the "simplification of the issues" and "any other matter that may assist in the just and most expeditious disposition of any proceeding." Pursuant to section 5.3(3) of the SPPA, any tribunal member presiding at a pre-hearing conference "may make such orders as he or she considers necessary or advisable with respect to the conduct of the proceeding ..." Rule 1.1 of the Practice Code states that "these Rules will be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute."4
Section 5.4 of the SPPA also sets out the powers of a tribunal, if its rules so provide, to make various disclosure orders.
Rule 33 of the Practice Code sets out the rules adopted by the Commission pursuant to the provisions of the SPPA. Rule 33.1 reads as follows:
33.1 One or more pre-hearing discussions may be held before an arbitrator who will attempt to resolve the dispute, and will assist the parties to prepare for the arbitration by:
a. identifying and obtaining agreement as to the issues for arbitration;
b. obtaining agreement as to facts;
c. deciding any disputes relating to the identification and exchange of documents;
d. dealing with procedural and preliminary issues, and requests for interim relief;
e. setting dates for the hearing and determining the hearing format;
f. dealing with any other matters that the arbitrator considers appropriate.
In this case, the Fund and Mr. Carrière argue that determining whether parties are required to attend and give oral evidence or whether instead they can put in transcripts of their evidence from examinations for discovery is a procedural or preliminary issue within the meaning of Rule 33.1(d), a question of the hearing format within Rule 33.1(e), or a matter that I should consider appropriate to deal with, pursuant to Rule 33.1(f).
In light of the relative functions of pre-hearing and hearing arbitrators, I do not consider it appropriate to make the order requested. I draw a corollary with production issues, whereby although a pre-hearing arbitrator may order production of certain documents, the hearing arbitrator determines whether or not those documents are admitted. I turn also to the appeal decision in Leitgeb and Allstate Insurance Company of Canada,5 where, after ruling that the Insurer did not have to produce documents ordered by the pre-hearing arbitrator, Director's Delegate Draper stated: "Nothing in this decision, however, is intended to restrict the hearing arbitrator's authority to make any order that he or she considers appropriate in the context of the hearing."
What the Fund and Mr. Carrière seek goes beyond mere disclosure and to the very heart of the hearing arbitrator's function. Aside from the practicalities — I do not know how I could bind the hearing arbitrator from completely reconsidering this matter should Royal so move — I return to the powers set out in section 15 of the SPPA:
- (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
The discretion is subject to the overriding provisions of subsections (2) and (3):
- (2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceeding arises or any other statute.
(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.
The parties will appear before the hearing arbitrator, who will have control of the proceedings. I find that the hearing arbitrator will be in a better position to exercise the powers set out in section 15 of the SPPA. In particular, the hearing arbitrator will be in a better position to determine what documentary and viva voce evidence should be heard for a full consideration of the facts in this case. Accordingly, I find it more appropriate for the hearing arbitrator to consider the merits of the relief sought.
In light of this finding, it is not necessary for me to consider the matter further. I leave the question of expenses of this motion to the hearing arbitrator.
April 21, 1999
David Evans
Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 64
FSCO A98-000772
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARCEL CARRIÈRE
Applicant
and
MOTOR VEHICLE ACCIDENT CLAIMS FUND
Insurer
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
PRE-HEARING ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- It is not appropriate at the pre-hearing stage in this case to order that the transcripts from the examinations for discovery in the tort action be admitted at the arbitration hearing in lieu of viva voce evidence.
April 21, 1999
David Evans
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule "refers to the original O.R. 776/93, and "1995 Schedule "refers to O.R. 776/93 as amended.
- R.S.O. 1990, c. S.22, as amended
- Subsection 15.1(3)
- Carby and Co-Operators General Insurance Company, (January 12, 1996, FSCO A-950220)
- (November 16, 1995, P-012407)