Neutral Citation: 2001 ONFSCDRS 14

FSCO A99-000961

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DESMOND HUGHES

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before:

Judith Killoran

Heard:

Written submissions were received on January 23, February 1, and February 6, 2001.

Appearances:

Brian Sherman for Mr. Hughes

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Desmond Hughes, was injured in a motor vehicle accident on January 26, 1998. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Hughes applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The motion is:

Pursuant to the provisions of section 39 of the Dispute Resolution Practice Code, should the hearing be re-opened to admit new evidence such as the Ontario Physicians Appendix "A" regarding "Uninsured Services" and any other evidence relating to what services may be billed to OHIP?

Result:

The hearing shall not be re-opened to allow either party to file further evidence.

EVIDENCE AND ANALYSIS:

One of the issues which arose during the hearing held on January 10, 11, 12 and 13, 2001 was whether the physicians at Target Rehab Centre ("Target") could have billed OHIP for their medical assessments. After the hearing concluded, Mr. Brian Sherman, Mr. Hughes' representative, forwarded a letter, dated January 23, 2001, informing me that he had obtained the Ontario Physicians Appendix "A" regarding "Uninsured Services" dealing with what services may be billed to OHIP. Mr. Sherman asked for a ruling as to whether it would be appropriate to file this document.

In response, Mr. Kirby, on behalf of Allstate, by letter dated February 1, 2001, objected to the notion that after the completion of the hearing and closing arguments that a case could be re-opened and further evidence provided. Mr. Kirby noted that although section 39 of the Dispute Resolution Practice Code provides for such procedure, his understanding is that the test to be applied in determining whether or not a case will be re-opened is to decide whether the evidence is something which could not reasonably have been available prior to the hearing. His letter went on to say:

In this case (as in other previous cases I have had involving Target Rehabilitation and Mr. Sherman) the issue of whether or not the medical assessment charge of Target Rehabilitation is or is not covered by OHIP has been raised. As such, the applicant knew that the issue was going to be raised in this hearing and I assume (though I have not seen it) that the Ontario Physicians Appendix A is something that has been in existence for a considerable amount of time. I should also say that since the hearing, I too have acquired additional information which indicates, at least on my reading, that the services provided by the physicians at Target Rehabilitation were covered by OHIP.

By letter dated February 2, 2001, I informed the parties that I was treating Mr. Sherman's request to re-open the hearing as a motion. I requested that Mr. Sherman submit any relevant written submissions by Friday, February 9, 2001. In particular, I directed that both parties review the criteria outlined in Tran and Pilot Insurance Company ² and R. v. Palmer ³ for re-opening a hearing and admitting new evidence. I confirmed that, after reviewing Mr. Sherman's submission, I would inform Mr. Kirby as to whether I would require submissions from him, on behalf of Allstate.

By letter dated February 6, 2001, Mr. Sherman conceded that: "It is true that the Appendix of Uninsured Services did not arise and was not created since the Arbitration hearing. With greater diligence on my part it may have been obtained prior to now." He also submitted that: "I know of no possible prejudice to the Insurer to have clear regulations put before you on this point. They are what they are and are beyond the ability of Mr. Kirby or myself to influence. They are essentially a public document in any event."

I did not request submissions from Allstate.

Section 39 of the Code gives an arbitrator the discretion to re-open a hearing but provides no guidance as to the nature of the evidence required to permit a re-opening or the criteria for an arbitrator to re-open a hearing.

In Tran and Pilot Insurance Company, Arbitrator Manji dealt with the requirements to re-open a hearing and concluded:

In my view, before an arbitrator exercises his or her discretion to receive further evidence, he or she must be satisfied that not only is the evidence relevant but it is also so weighty that if adduced it would have an important influence on the result of the case. It must also be shown that the lateness of its presentation was justified by unusual circumstances beyond the control of the party seeking to adduce it. If the evidence was available to or within the control of the party before the case is closed, it should not be admitted.

In R. v. Palmer, the Supreme Court of Canada summarized the criteria for the admission of new evidence in this fashion:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases ...

(3) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(4) The evidence must be relevant in the sense that it is reasonably capable of belief, and

(5) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Therefore, Mr. Sherman must demonstrate that not only is the evidence that he proposes to call relevant and credible, he must also establish that it could not have been adduced at the hearing as a result of exercising due diligence.

However, in his letter dated February 6, 2001, Mr. Sherman conceded, with respect to the evidence in issue, that: "With greater diligence on my part it may have been obtained prior to now. "

I find that this is not an appropriate case in which to re-open a hearing by allowing the filing of new evidence. The first principle of "due diligence" set out by the Supreme Court of Canada can not be satisfied in this case. One can see the repercussions of allowing such a re-opening in Mr. Kirby's letter of February 1, 2001 where he claims: "...I too have acquired additional information which indicates, at least on my reading, that the services provided by the physicians at Target Rehabilitation were covered by OHIP."

This illustrates Arbitrator Manji's point that:

.... an arbitrator should exercise his or her discretion to receive further evidence after the case is closed only in exceptional or extraordinary circumstances. To do otherwise would be to delay and jeopardize the arbitration process and the finality required in the process.

I concur with Arbitrator Wilson in Korkiss and Progressive Casualty Insurance Company⁴, that:

Each litigant is forced to make tactical decisions in the handling of a case which affect the manner in which a case is presented, the issues and evidence to be dealt with at a hearing. Sometimes, with hindsight, it appears that different strategies would have been more productive than those actually chosen. The nature of the adversarial process dictates that a party's case must frequently stand or fall on the basis of such choices.

I find that this case does not have the exceptional or extraordinary circumstances necessary to consider re-opening the hearing. Most importantly, I find that the Applicant has not met the "due diligence" test set out by the Supreme Court of Canada for re-opening a hearing and adducing new evidence. I decline to re-open the hearing to permit the filing of new evidence.

February 9, 2001

Judith Killoran Arbitrator

Date