Neutral Citation: 2003 ONFSCDRS 175
FSCO A96-001123
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOSE HERNANDEZ
Applicant
and
ZURICH NORTH AMERICA CANADA
Insurer
DECISION ON A MOTION
Before:
Susan Sapin
Heard:
By telephone conference call on November 20, 2003.
Appearances:
Golan Mergui for Mr. Hernandez
Kenneth Wright for Zurich North America Canada
Issues:
The arbitration hearing to determine Mr. Hernandez' entitlement to certain statutory accident benefits, under the Insurance Act, R.S.O. 1990, c.I.8, and the SABS-1994,1 is scheduled to begin on December 15, 2003, before the Financial Services Commission of Ontario in Ottawa.
Mr. Hernandez was injured in a motor vehicle accident on November 5, 1994.
Zurich brought a motion before me on November 20, 2003, to determine the following issues:
A motion for an Order admitting into evidence at the arbitration hearing the transcripts of the examinations-in-chief and discovery of certain witnesses from the first arbitration hearing before Arbitrator Miller in 1997.
A motion for an Order that Dr. Martin Gillen be excluded from testifying at the hearing on behalf of the Applicant, and that his March 3, 2003 report not be admitted into evidence, on the grounds that he is no longer qualified to give expert evidence as a health practitioner under the provisions of the Ontario Evidence Act, R.S.O. 1990, c. E.22.
Orders:
On the consent of the parties, the transcripts of the examination-in-chief and cross-examination of the following witnesses shall be admitted into evidence at the arbitration hearing:
Dr. Martin Gillen, treating physiatrist;
Dr. Juan Escudero, family doctor;
Dr. Juan Tejeda, psychiatrist;
Edgar Hernandez, Mr. Hernandez' employer (no relation);
Michael Tardif, Mr. Hernandez' workout partner, also to be called as a witness;
Marc Gignac, 1995 DAC kinesiologist;
Dr. Lynne MacGregor, 1995 DAC assessor; and
Robert Kras, treating physiotherapist at CBI in 1994/1995.
In addition, if the Applicant intends to rely on an updated report of Dr. Escudero, that report shall be provided to the Insurer within one week (by November 27, 2003).
- Dr. Martin Gillen may testify at the arbitration hearing on behalf of Mr. Hernandez and his report(s) will be admitted into evidence.
REASONS:
Zurich submits that Dr. Gillen's evidence should be excluded because he is no longer a "practitioner" as defined under subsection 52(1) of the Evidence Act, as a result of the revocation of his registration with the Ontario College of Physicians & Surgeons for reasons of professional misconduct by the Discipline Committee of that body on June 20, 2003. Zurich argues that, under subsections 52(2) and (4) of the Evidence Act, Dr. Gillen must first be qualified as a "practitioner" before any report of his can be filed, and only a "practitioner" who has signed a report can give evidence at a trial, which includes this arbitration proceeding.
Zurich further submits that current criminal charges against Dr. Gillen raise issues of "honesty, fidelity and competence to practice" which affect the credibility of his evidence and render it improper for him to either file a report or testify in this proceeding.
I decline to grant Zurich's motion for the following reasons.
Firstly, as a creature of statute, this tribunal's primary authority governing the admission of evidence in an arbitration proceeding is the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), the relevant provisions of which state:
- (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 thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
Conflicts
(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. [emphasis added].
The weakness of Zurich's argument is that the purpose of section 52 of the Evidence Act is not to exclude reports of non-practitioners, but to permit parties to forego the expense of calling medical experts in favour of filing the expert's report, and to ensure that expert medical reports are, accordingly, provided to the opposing party in advance. This purpose becomes clear if one reads a little further to subsection 52(5) of the Evidence Act. Subsections 52(1) to (5) of the Evidence Act certainly do not amount, in my mind, to an express limitation on the use of expert medical evidence in an arbitration proceeding. As there is no conflict between these provisions and section 15 of the SPPA, I have the authority under the latter to admit both Dr. Gillen's reports and his testimony into evidence in this arbitration proceeding.
The second reason I decline to exclude either Dr. Gillen or his report from the arbitration proceeding is that Dr. Gillen has treated Mr. Hernandez for several years. As the only treating physiatrist, the results of his examinations of Mr. Hernandez, his understanding of his patient's condition, and his ability to describe it, are all relevant to this proceeding. I find Mr. Hernandez would be severely prejudiced if denied the opportunity to present this evidence. The fact that Dr. Gillen's license to practice medicine has been revoked is not, in my view, of itself sufficient reason to exclude his evidence before this tribunal. I am not persuaded, on the evidence presented to me, that the reasons behind the revocation of his license are necessarily relevant to his evidence about the issues in dispute in the arbitration proceeding.
In my view, any issues about the reliability of Dr. Gillen's evidence or the weight that I should give to it should be evaluated no differently than would any expert evidence presented to the tribunal.
In this case, the prejudice to Mr. Hernandez in being deprived of the opportunity to present relevant medical evidence in support of his case outweighs Zurich's concerns of impropriety.
EXPENSES:
The issue of expenses for this motion is deferred to the arbitration hearing, at the conclusion of which I invite the parties' submissions on expenses for the entire arbitration proceeding.
December 5, 2003
Susan Sapin
Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 175
FSCO A96-001123
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JOSE HERNANDEZ
Applicant
and
ZURICH NORTH AMERICA CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
On the consent of the parties, the transcripts of the examination-in-chief and cross-examination of the following witnesses shall be admitted into evidence at the arbitration hearing:
Dr. Martin Gillen, treating physiatrist;
Dr. Juan Escudero, family doctor;
Dr. Juan Tejeda, psychiatrist;
Edgar Hernandez, Mr. Hernandez' employer (no relation);
Michael Tardif, the Mr. Hernandez' workout partner, also to be called as a witness;
Marc Gignac, 1995 DAC kinesiologist;
Dr. Lynn MacGregor, 1995 DAC assessor; and
Robert Kras, treating physiotherapist at CBI in 1994/1995.
Dr. Martin Gillen may testify at the arbitration hearing on behalf of Mr. Hernandez and his report(s) will be admitted into evidence.
December 5, 2003
Susan Sapin
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, 463/96 and 304/98.