V.J. v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2003 ONFSCDRS 70

Financial Services Commission of Ontario

Neutral Citation: 2003 ONFSCDRS 70

FSCO A01-001635

BETWEEN:

V.J. Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Insurer

REASONS FOR DECISION

Before: Lawrence Blackman

Heard: October 21, 2002, February 3 and 4, 2003, at the offices of the Financial Services Commission of Ontario in Toronto. October 31, 2002 and January 27, 2003 by telephone conference.

Appearances: Todd Reybroek for the Applicant, V.J. Theodore P. Charney for Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security").

Issues:

The Applicant, V.J., was a pedestrian when struck by a van on May 7, 2000. On the consent of both parties, the Applicant's name has been anonymized in this decision.

The life of this now 47-year old Applicant has been very difficult. She has little formal education. Even in her early years she was largely absent from school in order to take care of her younger siblings while her mother worked. She was raped at age thirteen. Her education ended at that time when she left school to give birth to and raise her first child. Her reading and writing skills appear to be minimal.

V.J. has had several more children. While raising her children, apparently to some significant extent on her own, she also worked at a variety of manual and unskilled jobs in her native country. She came to Canada in 1990. While English is her first language, her idiom of speech would further restrict her job options. She has worked at a variety of essentially manual, unskilled and relatively low-paying jobs in Canada, which presumably leaves her more vulnerable to the vicissitudes of the economy and the temperament of her employers.

In September 2001, one of V.J.'s sons died of AIDS. This was but one of a series of sorrows and afflictions that V.J. suffered within a relatively short period of time following this accident. Both her parents died. A grandparent died. She has had significant problems with her surviving children.

Following this accident, V.J. applied for and received statutory accident benefits from Security, payable under the Schedule.¹ Security terminated payment of weekly income replacement benefits ("IRBs") on January 30, 2001. The parties were unable to resolve their disputes through mediation, and V.J. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

It is my understanding that V.J. has a tort action against the owner and operator of the third party vehicle. That proceeding would appear to include a claim for loss of future earning capacity.

That is not an issue in this proceeding. The issues in dispute in this hearing, rather, arise from the more exact statutory provisions of the Schedule, namely:

1. Is V.J. entitled to receive a weekly income replacement benefit ongoing from January 31, 2001, claimed pursuant to section 4 of the Schedule?

2. What is the amount of weekly income replacement benefit that V.J. is entitled to receive in accordance with section 6 of the Schedule?

3. Is V.J. entitled to receive a medical benefit in an amount ranging from $23,500 to $27,500, or in the alternative, $13,100 to $16,450, for dental work described in treatment plans prepared by Dr. D. Isakow and claimed pursuant to section 14 of the Schedule?

4. Is V.J. entitled to payment for housekeeping and home maintenance services in the amount of approximately $60 per week from February 13, 2001 until May 7, 2002, claimed pursuant to section 22 of the Schedule?

5. Is V.J. entitled to interest on any overdue payment of benefits, claimed pursuant to subsection 46(2) of the Schedule?

6. Is Security liable to pay V.J.'s expenses in respect of this arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

7. Is V.J. liable to pay Security's expenses in respect of this arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

1. V.J. is not entitled to receive a weekly income replacement benefit from January 31, 2001 to February 4, 2003.

2. The amount of the Applicant's weekly income replacement benefit is 80 per cent of the net income of $250 for the first 104 weeks of disability and, for any period thereafter, the greater of the aforesaid amount and $185 per week.

3. V.J. is entitled to receive from $13,100 to $16,450, as required, to cover dental work as described in the alternative treatment plan recommended by Dr. Isakow.

4. V.J. is not entitled to payment of housekeeping and home maintenance services after February 12, 2001.

5. V.J. is entitled to interest on any overdue payment of benefits in accordance with subsection 46(2) of the Schedule.

6. The issue of entitlement to and the amount of legal expenses in respect of this arbitration may now be addressed.

This hearing commenced October 21, 2002. Prior to the hearing resuming on February 3, 2003, the Applicant asked that seven further medical reports, prepared subsequent to the start of the hearing, be allowed into evidence. Oral submissions were received by telephone conference call on January 27, 2003. My letter decision, dated January 31, 2003, is attached to this decision. The Applicant's name and address have been deleted in the attachment to protect her privacy.

EVIDENCE AND ANALYSIS:

1. Entitlement to Income Replacement Benefits

(g) The Applicant's pre-accident employment

The evidence is consistent, and I accept, that at the time of this accident V.J. was employed as a companion for an elderly woman in a care facility. The Applicant had been hired by the client's daughter. V.J. testified that the client suffered from something like Alzheimer's. I accept that V.J.'s hours were Mondays to Fridays, from approximately 5:00 p.m. to between 8:30 a.m. and 10:00 a.m. the next day, depending on when her replacement arrived. It was the daytime replacement who was responsible for the client's laundry, cleaning, and taking her to the doctor. I accept V.J.'s evidence that she had been employed in this position for several weeks and, in any event, for at least four weeks.

When V.J. would arrive at the care facility, if the client had not yet eaten, she would accompany the client (described in a June 14, 2002 report of Sibley & Associates as being self-sufficient), to supper. There is no indication that V.J. fed the client or that the client relied on V.J. for physical support. The client had a walker which she pushed. After the patient was given her medication, evidently by someone else, V.J. would take the client back to her room. V.J. would keep the client company by sitting and talking. V.J. described the client as a very nice lady who always gave her encouraging words.

Eventually, apparently, both client and care provider would doze off. I accept V.J.'s evidence that she did not do anything at night, "just look at her, and in mornings I took her down for breakfast." I further accept her evidence that the client dressed herself, "I didn't have to do nothing, just sit with her." I accept the evidence from the August 27, 2002 report of Dr. G. French that V.J. was not required to do any bending, stooping, crouching or heavy lifting in this position. V.J. testified that she never used to lift the client. Sometimes, however, they would go out for a little walk, just outside the building. I accept V.J.'s evidence that the position did not involve any cooking or cleaning; that she was "[j]ust a companion there."

Further, I accept the evidence, in V.J.'s own words at page 119 of the transcript of her October 21, 2001 examination-in-chief, that this was "an easy job."

For the first 104 weeks of disability, V.J. would be entitled to payment of weekly IRBs for the period that she suffered a substantial (that is significant) inability to perform the essential (that is key) tasks of that employment. I do not accept the Applicant's submissions that I should also consider, in determining her pre-104 week IRB entitlement, the essential tasks of the more physically demanding work which she had more typically performed during her working life. I accept that the employment in which V.J. was engaged at the time of the accident was intended to be ongoing. I accept that it was full-time work. I accept V.J.'s evidence that she enjoyed this work and wished it to continue. Although there was some mention by the Applicant of ongoing cleaning employment, I received no details of same.

(h) Pre-104 week disability

I accept that as a result of this accident, V.J. suffered, as noted by her family doctor, Dr. A. Hotz, injury to her neck, shoulders, right elbow, hips and back. Due to her hematemesis (vomiting of blood), an ultrasound, esophagogastroduodenoscopy and colonoscopy were performed. These revealed no abnormalities. Dr. Hotz notes that V.J. was seen (by Dr. K. Prutis, consultant in physical medicine) at the office of Dr. M. Kleinman, whose diagnoses were moderately severe myofascial cervical, thoracic and lumbar strains as a result of this accident. Dr. Hotz further noted that the Applicant's post-accident "EMG study found no evidence of lumbar radiculopathy nor distal nerve entrapment in the lower extremities . . . The CT scan did not identify any significant findings."

V.J.'s initial evidence (at page 118 of her October 22, 2002 transcript) was that her back pain prevented her from working because she could not lift anything heavy, or stand or sit too long. There is no evidence, however, that the companion position required heavy lifting, or, in fact, any lifting, that it required prolonged standing, or that there was anything preventing V.J. from varying her standing or sitting as she wished. Indeed, at page 119 of the transcript of her examination-in-chief on October 19, 2002, V.J., in describing her companion job as easy, stated that, "If I could have get it back, I would have take it."

The Applicant then clarified that she would only be able to do the companion job during the day, as the antidepressant medication which she was taking, prescribed by her psychiatrist, Dr. J. Cooper (whom she started to see in 2002), made her dizzy and then knocked her out.

Dr. Cooper, however, does not indicate in his report before me, dated June 15, 2002, that V.J. is disabled because of the medication she is taking, nor does any other medical practitioner. Nor is there any evidence that V.J. mentioned this difficulty to any medical practitioner. Neither is there any evidence that V.J. has inquired as to whether her dosage can be adjusted or whether the medication can be taken at a different time.

Dr. Cooper opined in his report that V.J. was unable to be gainfully employed in any kind of competitive employment as a direct result of this motor vehicle accident, due to her chronic pain syndrome and her depression which was aggravated by the death of her son. I find Dr. Cooper's opinion of little assistance, for the following reasons:

– Dr. Cooper had an incomplete or incorrect understanding of V.J.'s history. He stated that V.J.'s development was normal and that she related a happy childhood.

This would appear to be inconsistent with child labour and being raped at age thirteen. At page three of his report he states that she has a grade 11 education but on the next page states that she appeared to have had only five years of schooling. Dr. Cooper does, however, admit that he had difficulty assessing her education;

– Dr. Cooper states that there is no history of suicidal ideation or attempts by his patient. In fact, less than three months before he first saw V.J., she had been admitted to Humber River Regional Hospital ("Humber") from January 1 to February 6, 2002 following what the discharge summary referred to as "an acute suicidal plan," having consumed half a bottle of rum and six or seven pills. The summary further states that the Applicant was in a grief reaction following the death of her son, and since then had not been able to eat, sleep or concentrate properly, or to work;

– Dr. Cooper states that V.J. complained of nightmares and experienced flashbacks. He does not say of what. In cross-examination, it appeared that these flashbacks are related to sexual assaults. Dr. L. Reznek, in his September 18, 2002 insurer's psychiatric medical report, refers, in addition to V.J. being raped at age 13, that she was raped by two men soon after coming to Canada. Dr. Reznek states that the Applicant told him that this still causes nightmares. V.J. testified that she will not work alone with a man. She was not sure whether she was able, before the accident, to work in a house if a man was there;

– Repeatedly in her evidence, V.J. testified that she hears voices. At page 87 of the transcript of the second day of her examination, she testified that "I never hear my son voice. I heard voices, I can't know what they saying and seeing, like, little people running around." V.J. testified that this started after she went to Humber. Dr. Cooper does not mention in his report that the Applicant hears voices. He only states that V.J. complained about noises bothering her;

– Humber's records note that amongst the stressors facing the Applicant was the loss of nine family members within the last three years, including her mother, her father (which necessitated an ambulance being called for V.J., the call report noting her as agitated and hyperventilating), her grandmother and her son. Other than the loss of her son, these losses are not mentioned by Dr. Cooper. Nor does Dr. Cooper mention additional stressors, as noted by Humber, including her three adult children and her teenage child, with whom she resided, mistreating and verbally abusing her;

– more specifically to the heart of the issue before me, Dr. Cooper concedes in his report he found it very difficult to understand V.J.'s work history. He mentions babysitting, housekeeping and cleaning, but does not mention her companion position which she held at the time of this accident, let alone what it entailed.

Dr. Cooper's report, having found the accident to be the direct cause of her problems without properly addressing the many other stressors in her life, and having found her unable to be engaged in any kind of competitive employment with little apparent understanding of her immediate pre-accident employment history, is fatally flawed.

There are some entries in the Humber notes recording back pain. There are also entries which note as stressors V.J. not having worked since the accident and the resulting financial pressures. However, the records do not independently opine on the link between the pain or the stressors which might be related to this accident and V.J's subsequent absence from the work force.

The Applicant's own evidence as to her disability is unreliable, as she places the blame for all of her problems on this accident and discounts the effect of anything that is non-accident related. V.J. did not agree with Humber's records that she was in the hospital because of her son's death. Rather, she attributed it (at page 81 of the February 3, 2003 transcript) to an argument with her son regarding rent. In turn, she relates her financial difficulties to this accident.

Further, it is V.J.'s evidence that it is the remedy (the antidepressant medication), not the malady (depression) that impedes her return to work as a companion. She further testified that during the night she would have to keep an eye on the client, but was now not able to concentrate. If there is a problem with concentration (which Dr. Cooper accepts, based apparently entirely on the history given by the Applicant, which in this area I find to be unreliable), its relationship to this motor vehicle accident is uncertain. V.J. was also concerned whether she would now be hired, having suffered what she referred to as a "nervous breakdown." However, it was unclear, at best, whether this motor vehicle accident materially contributed to this hospital admission.

The clinical notes of V.J.'s family doctor, Dr. Hotz, in the latter part of 2000 fail to note any complaints apparently related to this accident. At the same time, the physiotherapy treatment plans of Ms. G. Ling of York Physiotherapy Clinic ("York"), specifically August 2, 2000, note resolved neck and elbow strain and resolving lumbar strain and recommended five weeks of treatment to consolidate the current successes and to resume the Applicant's pre-injury position as an elderly caregiver. V.J. was discharged from therapy at the end of September 2000 on a program of home exercises.

In a very brief note dated January 17, 2001, Dr. Hotz does state that the Applicant should abstain from work for at least one to two months, but gives no indication as to the type of work V.J. was doing at the time of this accident, nor why precisely he found her disabled from this exact type of employment. In a February 6, 2001 report, Dr. Hotz stated that the degree of impairment of the Applicant's symptoms had yet to be confirmed by a formal functional capacities evaluation.

However, a December 14, 2000 insurer's functional abilities evaluation had concluded that V.J. had achieved the light strength demands necessary for her pre-accident employment. The report noted that V.J. stated that she could not bend, lift or walk too long because it increased her back pain. As noted above, these were not part of her job duties. V.J. also indicated that she would go back to work if she found a job where she did not have to lift anything. The report notes that her prior companion position was no longer available. At the same time, Dr. L.T. Walters found no evidence of impairment, based on his December 12, 2000 insurer's medical examination, and opined that V.J. was not substantially impaired from the essential tasks of her pre-accident employment, which he correctly identified as a companion for an elderly person.

In a very brief August 17, 2001 note, Dr. Hotz advised that V.J. work only to the extent that she could tolerate the exertions. At the same time, however, the physiotherapy clinic which the Applicant had again attended, indicated a 70% improvement by August 3, 2001.

In his November 12, 2001 report, Dr. Hotz stated that V.J. was subject to intermittent episodes of severe lower back pain and hip pain that inhibited her ability to function. He concluded that:

I do not think that [V.J.] is able to return to her pre-accident employment. However, I do believe that [V.J.] could attempt a return to work provided her employment involves 'light duties' with limited physical demands. It is likely that adjunctive support and therapy through a rehabilitation clinic would prove beneficial.

Dr. Hotz does not, however, reveal in his report what his understanding was of the Applicant's pre-accident employment. I find that her pre-accident employment did precisely entail "light duties" with very limited physical demands. Dr. Hotz' report may, however, speak more appropriately to the types of employment more often performed by V.J., including cleaning and taking care of children and, more specifically, to a loss of future earning capacity.

An April 2002 MRI of the Applicant's lumbosacral spine did reveal broad based disc herniations at both L4-5 and L5-S1. There was no comment, however, as to the employability consequences of same. In a March 10, 2002 entry, Dr. Hotz noted V.J. was depressed, evidently in part from persisting back pain. However, his September 6, 2002 entry refers to a number of stressors, including the burden of caring for a grand nephew. Pain relating to this accident is not noted as a stressor. At roughly the same time, the insurer reports of Dr. G. French, orthopaedic surgeon, dated August 27, 2002 and Dr. L. Reznek, psychiatrist, dated September 18, 2002, both concluded that V.J. was not disabled from the essential duties of her pre-accident employment.

Dr. French was of the view that the disc herniations, which revealed no compromise of the exiting L4 or L5 nerve roots on either side, were the result of the normal aging process and were not accident related. On examination he found no evidence of "nerve root tension, compression or irritation in her upper or lower extremities which might indicate the underlying presence of a symptomatic disc herniation." He believed that V.J.'s residual impairments were the result of soft tissue strains and contusions.

I accept that V.J. is having some measure of low back pain. However, pain and suffering are not, by themselves, compensable under the Schedule. Rather, the Schedule provides limited compensation for fairly precisely defined losses of function. Specifically, the question before me is whether V.J. is substantially unable to perform the essential duties of her employment held at the time of and in the weeks preceding this accident.

Given, amongst other things, the light essential tasks of the pre-accident companion position, V.J.'s own evidence in this regard, the difficulties noted above with the opinions supporting disability, the evidence of V.J.'s own family doctor in November 2001 regarding light duties and the more thorough and considered evidence provided by Dr. Walters and the concurrent functional abilities evaluation, I am not persuaded that after the termination date of benefits on January 30, 2001, V.J. was unable to perform the essential tasks of her pre-accident employment.

(b) Post-104 week disability

For any period longer than 104 weeks of disability, IRB entitlement sets a higher threshold, namely, a complete inability to engage in any employment for which one is reasonably suited by education, training or experience.

I accept V.J.'s evidence that in her native country she had been employed as a school janitor, laundress and assistant for the elderly, as well as planting and digging up nuts. I further accept that in Canada she had been employed as a nanny, babysitter, caregiver and cleaning person. I further accept that she had been employed in a bakery. As noted above, the Applicant has a grade school education. She has not had any further education. She has never had a driver's license.

Although V.J.'s companion position may have physically been atypical of the type of work V.J. normally performed, nonetheless, I find that it was employment for which she was reasonably suited. Based on the facts of this case, the question as to whether V.J. is able to perform the essential tasks of her companion position becomes, in fact, equally the question which must ultimately be addressed in answering the post-104 week test.

Whether V.J. may have some degree of restricted employment options or loss of competitive advantage as a result of this accident resulting in some measure of loss of earning capacity, is not the question before me.

I find that V.J.'s education, training or experience makes her reasonably suited for a position as a companion for the elderly. Given my findings above, I am not persuaded that the Applicant has met the post 104-week entitlement test to the date this hearing concluded on February 4, 2003.

2. The Quantum of the Applicant's Income Replacement Benefit

Security paid V.J. a weekly IRB of $236.93 from May 14, 2000 until January 30, 2001. The Insurer based this benefit on V.J.'s 1999 income tax return (filed prior to the accident), wherein her reported earnings were $18,608.

However, at the time of the 2000 motor vehicle accident, V.J. was working in a different capacity than in 1999. She testified that regarding her companion position, she was paid $500 every two weeks by cheque by her client's daughter. However, in her June 5, 2000 written statement, V.J. indicated that she was paid $275 net weekly by cheque and had been working for this client for a month. Yet, in her oral evidence, she testified that her statement was wrong, and that she had been employed for somewhat more than a month, as she had been paid three times.

The year following the accident, V.J. filed an income tax return for the calendar year 2000, reporting $3,658 in income. This did not apparently include income from V.J.'s companion employment at the time of the accident. The Applicant did not provide any proof of this income (such as an employer's certificate, bank statements or cancelled cheques), nor was her employer called to give evidence. V.J. testified that she did not know how she had earned the declared $3,658 nor whether this was all of her income in 2000. Nor did she know precisely what she had earned in the 52 weeks prior to the accident.

The Applicant was not sure that a precise IRB quantum could be established. She argued that she had tried to contact her client's daughter after the accident, but that the latter would not speak to her. She submitted that I should find $220 as the proper IRB quantum, being 80% of $275.

Security submitted that the onus is on the Applicant to demonstrate that she was employed at the time of the accident, the length of that employment and what she was earning. It argued that there was no independent source of evidence in support of any of these questions. Security submitted that V.J.'s evidence varied as to the amount of payment and the length of employment. It argued that there was no way of determining whether the payments were net of taxes and that although V.J. chose to base her IRB quantum on the four weeks prior to this accident, there was no independent evidence as to when she started. Regarding the alternative approach offered by the Schedule of basing the IRB quantum on the 52 weeks before the accident, Security submitted that there was no way of knowing precisely what V.J. had earned in the year before this accident.

I am persuaded, based upon her income tax returns filed each year from 1995 to 2000 and upon her oral evidence, that V.J. had been consistently employed, albeit for varying periods, for many years in a variety of low-paying positions. I am further persuaded, as set out above, that V.J. was employed at the time of this accident. I have accepted her description of the essential tasks of that employment. I find that she has consistently indicated the physically light nature of that position and the hours of employment. I am persuaded that she was employed for at least four weeks prior to this accident. I am persuaded that she would be paid for such employment and, on a balance of probabilities, that she was paid the relatively modest sum of $250 a week. I find that such evidence is in "harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions;" see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (B.C.CA).

I am not persuaded that the sum of $250 paid to V.J. was net of taxes.

I was not given any evidence as to the deductions that should be made for a weekly income of $250. Even if the "Net Weekly Income Table - Self-Employment" table (V.J. noting in her June 5, 2000 statement that she was self-employed) were applicable, it is uncertain as to which claim code is applicable to the Applicant. Hence, I am only able to find that for the first 104 weeks of disability the amount of the Applicant's weekly IRB would be 80 per cent of the net of $250. Pursuant to paragraph 6(1)(b) of the Schedule, for any period thereafter, the weekly IRB would be the greater of the aforesaid amount and $185 per week.

3. Dental Treatment Plan

V.J. testified that as a result of the accident, one of her teeth on the left side was broken and that her lower denture was broken in that two of the teeth came out.

The ambulance call report as well as the records of the emergency services and nursing assessment of the Toronto Hospital for May 7, 2000, however, are silent regarding any such injury. Likewise, as best as I can determine, the clinical notes of the Applicant's family doctor, Dr. Hotz, for V.J.'s immediate post-accident attendances on May 8 and 17, 2000 are silent regarding any such injury.

However, V.J.'s June 5, 2000 statement to Security indicates that she did break one of her teeth on the lower left side when she dropped to the pavement.

V.J. testified that she saw a dentist, Dr. Blackstone, after this accident. Dr. Blackstone's June 16, 2000 clinical note does indicate a May 7, 2000 car accident wherein the Applicant's lip was cut on the lower left side and her lower left first bicuspid (#34) was fractured and had to be extracted. An addition was hence required to her lower partial denture. As well, the first molar on the left side of her upper partial denture was fractured and had to be repaired. The notes indicate that Security paid $431.63. A further, and last, note of January 29, 2001 indicates that Dr. Blackstone relined V.J.'s lower partial denture in the left bicuspid area to tighten the lower denture. The prognosis was noted as excellent.

The Applicant testified, however, that the denture did not fit. V.J. was not sure why she never went back to the dentist. She testified that she has difficulty eating and that her gums are sore. She testified that she did not have trouble chewing before the accident.

V.J. was subsequently seen by Dr. D. Isakow, a prosthodontist.² In a September 12, 2001 report to the Insurer, he noted that V.J. was missing five teeth in the maxilla (the bone of the upper jaw) and ten in the mandible (the lower jaw). He incorrectly stated that two mandibular left posterior teeth (rather than one) were knocked loose and then fell out as a result of the motor vehicle accident.

By letter dated November 22, 2001, Dr. Isakow submitted to Security his recommended treatment plan to restore V.J.'s dentition. He was of the view that V.J. was no longer able to function with a denture as the remaining maxillary and mandibular dentures were ill fitting with lack of support from the remaining teeth. He stated that the denture was causing stripping of the lingual tissues from the remaining mandibular anterior teeth (as there were no teeth to offer support) and as such, V.J. could not chew with her denture and could only tolerate it briefly.

Dr. Isakow’s recommended treatment plan was estimated to cost between $23,500 and $27,600. His alternative treatment plan was estimated at $13,100 to $16,450. The significant difference between the two plans was that the recommended plan involved a fixed, non-removable hybrid prosthesis whereas the alternative plan involved a cast mandibular implant removable overdenture being fabricated.

Security referred V.J. to Dr. J. Friedlich, an oral and maxillofacial surgeon, for a disability assessment centre ("DAC") review of Dr. Isakow's treatment recommendations. Dr. Friedlich confirmed the Applicant's fair to poor generalized oral hygiene and missing teeth. He also noted that the four lower incisor teeth all demonstrated mobility.

Dr. Friedlich's May 7, 2002 conclusion was that while the cost of Dr. Isakow's treatment plan was reasonable and that the plan would be appropriate to consider in an individual missing multiple teeth such as the Applicant, the plan was neither reasonable nor necessary because of V.J.'s insulin dependent diabetes and the evidence of long standing dental neglect such that it "could be easily argued that the need for such a comprehensive treatment plan clearly predated the loss in question."

Dr. Isakow testified as to his considerable experience as a prosthodontist. He testified that an oral and maxillofacial surgeon's area of expertise is extraction rather than creating the prosthetic. Dr. Friedlich's report does not comment on the precise nature of his expertise. Accordingly, I prefer Dr. Isakow's level of expertise. Dr. Isakow conceded that his recommended treatment was the ideal. He did not consider V.J.'s insulin dependence as a barrier to this treatment. He agreed on cross-examination that it was most likely that V.J.'s teeth were not in good condition before this accident. He agreed that he was not simply trying to put the Applicant back to the condition that she was in prior to the accident.

Dr. Isakow was of the view that he had a duty to find a solution because the Applicant's denture does not fit. He indicated that a third option would be a partial denture, but that the prognosis for that treatment was poor. He indicated that if V.J. still had the tooth (#34) which was ultimately confirmed that she had lost in this accident, he could possibly exercise the third option. Now, however, with the loss of that tooth, there was too much of a span for a denture.

The Applicant frankly conceded that Dr. Isakow's recommended plan was the "Rolls Royce" treatment. She submitted that the alternative plan was closer to what she needed.

The Insurer submitted that Dr. Isakow's opinion was weakened because he had formulated his treatment plan under the belief that V.J. had lost two teeth as a result of the accident. It further submitted that Dr. Isakow failed to address what it considered to be the proper test, that is, what was reasonable and necessary to put the Applicant back to her pre-accident position.

I find that V.J. fell to the ground as a result of this accident. The impact was sufficient to cause vomiting of blood, Dr. Hotz noting possible injury to the gastrointestinal tract and kidneys, one of the hospital emergency records noting "microscopic hematuria" (blood in the urine) and urinalysis and stool analysis being positive for occult (hidden from view) blood. I accept V.J.’s evidence that she lost tooth #34 in this accident, as well as damaging her existing denture.

While Dr. Friedlich notes the absence of mention of this injury in the records noted above, he did not have the benefit of Dr. Blackstone's records, which supports at least that the Applicant (who rarely attended dentists) did seek treatment for this problem to a relevant medical practitioner fairly shortly after this accident. The Insurer implicitly raised the causation question, referring to slip and fall incidents which V.J. had had, but did not directly challenge her assertion that she had lost this tooth in this accident. I accept that V.J. had a very poor dental condition prior to this accident. It is probable, given the mobility of other teeth noted, that she would have less resistance to losing a tooth as a result of such a pedestrian accident.

I do not see a contractual restriction that the insurer need only put an insured back to where he or she was at the time of the accident in that if one had a denture before the accident, the insurer's obligation is limited to repairing the denture, regardless of whether the denture no longer properly meets its intended purpose for a number of reasons. Rather, I find the Schedule addresses one’s ability to function.

I accept the evidence of Dr. Isakow that whereas prior to the accident, with tooth #34, he might have been able to bridge the span, that now, as a result of the accident, he cannot. The causative link is set out in section 14 of the Schedule, namely, that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person "as a result of the accident," for, amongst other things, dental services. Security does not argue that the expenses claimed are not incurred. I find, in the words of the Supreme Court of Canada in Athey v. Leonati et al., (1996), 1996 CanLII 183 (SCC), 140 D.L.R. (4th) 235, that this accident materially contributed to the need for the approaches recommended by Dr. Isakow, namely, that a different and, frankly, more expensive procedure is now required for V.J. to have proper dental function.

I accept the submissions of the Applicant that the alternative plan proposed by Dr. Isakow is an expense reasonably and necessarily incurred as a result of this accident, and allow an amount of between $13,100 and $16,450, as required, to cover same.

4. Housekeeping

Section 22 of the Schedule provides that an insurer shall pay for reasonable and necessary additional expenses for housekeeping and home maintenance services incurred by or on behalf of an insured as a result of an accident. As a prerequisite, the insured must, as a result of the accident, have sustained an impairment that results in a substantial inability to perform the housekeeping and home maintenance services performed before the accident.

The Applicant claims a housekeeping benefit of approximately $60 a week from February 13, 2001 until May 7, 2002 (the Schedule providing a maximum of two years of such benefits where an insured has not, as in this case, sustained a catastrophic impairment). V.J. submitted to Security receipts for housekeeping duties performed by her daughter, S.J. These receipts were mainly in the amount of $238 per four week period, from May 8, 2000 until August 20, 2001. The receipts do not provide any specifics as to the hours of work or the housekeeping duties provided.

At the time of the accident, V.J. was living in a two-storey, two-bedroom apartment with two daughters. On cross-examination, the Applicant agreed with the evidence of Fulcrum Consultants ("Fulcrum") (who performed an occupational therapy in-home functional assessment in July 2001) that, before the accident, she shared with her daughters, but mainly her younger daughter, the laundry, vacuuming, dusting, bed making, grocery shopping, and that her daughters were the main ones who cleaned the dishes. V.J. was primarily responsible for meal preparation, sweeping, mopping and cleaning the bathroom.

An earlier functional abilities evaluation ("FAE") was conducted by Seiden Health Management Inc. ("Seiden") in December 2000, at the request of Security. V.J. reported that at that time she was cooking (including preparing meals and washing dishes) and completing some of the light cleaning around the home such as dusting, sometimes sweeping and making her own bed. The Activities of Daily Living Questionnaire indicated that V.J. had not returned to mopping, vacuuming, cleaning bathrooms, trash removal, laundry and grocery shopping. However, York's clinical notes indicate in September 2000 that the Applicant's low back pain was resolving, that she was helping clean the home, was doing laundry and was not on medication. The notes do indicate difficulty scrubbing the floor.

V.J. indicated that bending, lifting, cleaning, leaning forward and prolonged sitting increased her lower back pain. The FAE, however, on the basis of extensive testing, concluded that given the strength and range of motion results achieved by the Applicant, she was considered physically capable of completing all of her pre-accident activities of daily living, including cleaning the bathroom and kitchen, taking out the garbage, completing the laundry and doing the grocery shopping. A concurrent report of Dr. L.T. Walters, of Seiden, concluded as well that V.J. was able to complete all housekeeping activities and care for herself and her family.

The July 24, 2001 Fulcrum report noted V.J. as indicating that she was able to complete light household tasks on her "good days;" that she was currently capable of dusting, light meal preparation (limited by reduced standing tolerance), sweeping, bed making, and counter top and sink cleaning. A number of appliances were recommended to assist the Applicant in her household duties. The report notes that V.J. would likely require the assistance of her daughters regarding carrying groceries and laundry. However, the report reiterates that these duties were shared prior to the accident.

In cross-examination, V.J. denied that she did sweeping in the summer of 2001.

A follow-up report was prepared by Fulcrum dated August 27, 2001. It confirmed the provision of several assistive devices to the Applicant, including a lightweight vacuum. V.J. reported improvement in both her level of pain and function. She noted that she would be discharged from physiotherapy that week. V.J. indicated that she had increased her participation in meal preparation. She accompanied her daughters to the Laundromat. The daughters carried the loads across the street; however, V.J. was able to independently load and unload the machines. She was also able to sweep and mop as well as vacuum using the lightweight vacuum cleaner provided. She was also able to clean the bathroom, and accompanied her daughters on shopping trips, although they performed the heavy lifting and carrying. V.J. reported that the family would be moving at the end of September 2001.

The Fulcrum report concluded that V.J. displayed no pain symptoms and indicated that she had been able to increase her participation with household tasks on good days. Her only limitations appeared to the reporting occupational therapist to be heavy lifting and carrying, with which her family were able to assist.

V.J., however, testified that she did not take any chances loading or unloading the machines. She denied doing the mopping. She did agree that she could use the lightweight vacuum cleaner, that she was doing more meal preparation and sometimes changing the linens.

V.J. testified that her family moved into a three-storey house at the end of November 2001. Her family occupies the second and third stories. Her family members now living with her consist of two daughters, two grown sons and three grandchildren (who had subsequently joined the family). The lower level is rented out. V.J. testified that her sons do not do any cleaning because they are men. S.J. stopped doing the housework because she had too much school work. However, V.J. also testified that her daughters do not listen to her and that they are of an age where she cannot compel them to do the housekeeping. V.J. testified that she, therefore, hired her tenant, R.B., to do the housekeeping for which work R.B. was paid by one of her sons.

R.B. testified that she began doing housework for V.J. in September 2001 because V.J.'s children did not want to do the housework. She indicated that she had moved into the Applicant's basement in August 2001 and within a week or two was doing the cleaning, the grocery shopping and vacuuming. R.B. confirmed that she had seen V.J. dusting or do the meals. Although R.B. testified that she would perform housekeeping duties two to three days a week, three to six hours a day, she indicated that she did not really keep track of her hours.

R.B. stated that she and her boyfriend pay $150 and $225 respectively for rent, yet at the end of the month she was paid $283 or $284 for her housekeeping duties in cash. She testified that she was last paid in May 2002. She stated that nonetheless she continues to help with the housework. She testified that V.J. has taken care of her grandchildren. R.B. does not feel that V.J. owes her any money; she does the work evidently out of respect and sympathy for the Applicant.

In his report dated November 12, 2001, the Applicant’s family doctor, Dr. Hotz, referred to what he called Fulcrum's "exhaustive occupational therapy assessment." He concluded that:

Suffice it to say that despite complaints of persistent low back pain [V.J.] was able to manage the normal activities of daily living . . .

With regard to [V.J.'s] limitations in performing household duties I would have to again refer to the occupational assessment conducted by Fulcrum Consultants. In consideration of the assessment it would appear that [V.J.] is capable of managing the essentials of her housekeeping duties. Albeit with the assistance of her daughters. Should [V.J.] not have the continued assistance of her daughters a housekeeper to perform certain "heavy" tasks, such as carrying, loading, and unloading laundry might be necessary.

I have great difficulty accepting the evidence concerning R.B. It is hardly consistent with the preponderance of probabilities that in a household where the Applicant testifies there are significant financial concerns, that rather than her four children sharing household duties with their mother, a tenant was being paid to take over those duties.

Further, under section 22 of the Schedule, an insured is entitled to payment for reasonable and necessary additional expenses incurred as a result of the insured's impairment. An insurer is not responsible for paying for additional housekeeping expenses because other family members are no longer prepared to do the household duties they did before the accident or because new adult family members move in, unrelated to the accident, who simply refuse to help clean up after themselves. From the testimony received, it was not possible to discern the extent to which R.B. allegedly took over the daughters' pre-accident duties or took on new duties necessitated by new occupants in the home, as opposed to replacing the household chores required of V.J. pre-accident.

In any event, given the extensive report of Fulcrum, supported by the Applicant's own family doctor, I am not persuaded that for the period of the claim concerning R.B., that V.J. sustained an impairment that resulted in a substantial inability to perform her housekeeping duties that reasonably necessitated hiring someone. I accept the opinion of Fulcrum that the Applicant was still restricted from performing heavier duties. However, given the usual flexibility of a family household and given that V.J. was no longer employed, one would expect that for such relatively modest modifications, there would be some change of household duties, such as V.J. taking on more of the lighter duties and her daughters taking on more of the heavier duties.

Regarding the earlier period where the Applicant's daughter, S.J., had allegedly taken over the household duties, the evidence before me is very sketchy as to what exactly were the additional duties taken on by S.J. and the time involved. Rather, there appears to be an almost automatic generation of receipts, notwithstanding changes in the Applicant's pain condition. Being uncertain as to the extent to which the accounts submitted actually reflect reality, as well as the extent to which they meet the requirements of the Schedule, the Applicant's claim is denied.

EXPENSES:

Having dealt with all issues in dispute except that of legal expenses, should the parties be unable to agree on the entitlement to or the amount of the legal expenses of this proceeding, either party may request, in writing, an appointment before myself or another adjudicator (as determined by the Commission) to adjudge the issue of expenses, in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

May 8, 2003

Lawrence Blackman Arbitrator

Date

FSCO A01-001635

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

V.J. Applicant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The amount of the Applicant's weekly income replacement benefit is 80 per cent of the net income of $250 for the first 104 weeks of disability and, for any period thereafter, the greater of the aforesaid amount and $185 per week.

2. Security shall pay V.J. $13,100 to $16,450, as required, to cover dental work described in the alternative treatment plan recommended by Dr. Isakow, together with interest on any overdue payment of benefits in accordance with subsection 46(2) of the Schedule.

3. The issue of entitlement to and the amount of legal expenses in respect of this arbitration may now be addressed.

May 8, 2003

Lawrence Blackman Arbitrator

Date

Dispute Resolution Group Arbitration Unit 5160 Yonge Street, 14th Floor Box 85 North York ON M2N 6L9

Groupe de règlement des différends Unité d'arbitrage 5160, rue Yonge, 14ième étage Boîte 85 North York (Ontario) M2N 6L9

Enquiries: (416) 250-6714 Fax: (416) 590-8462 Toll Free: 1-800-517-2332

Renseignement: (416) 250-6714 Télécopieur: (416) 590-8462 Sans frais: 1-800-517-2332

January 31, 2003

By Facsimile Transmission to Counsel

Mr. Todd Reybroek Todd Reybroek Law Office Barrister and Solicitor 3200 Dufferin Street Suite 301, PO Box 26 North York ON M6A 2T3

Mr. Theodore P. Charney Falconer, Charney, Macklin Barristers and Solicitors 8 Prince Arthur Avenue Toronto ON M5R 1A9

Dear Mr. Reybroek and Mr. Charney:

Re: [V.J.] and Security National Insurance Co./Monnex Insurance Mgmt. Inc. MVA: May 7, 2000 Commission File N^o: A01-001635-SWE Claim N^o: 24-6537047

Further to my letter of January 29, 2003, I again wish to confirm that the arbitration hearing herein was resumed before me, by telephone conference, on Monday, January 27, 2003, at 1:00 p.m. Mr. Reybroek represented [V.J.]. Mr. Charney represented Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security").

As the parties are aware, following the automobile accident of May 7, 2000, [V.J.] sought benefits pursuant to the Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996 (the "Schedule"). Payment of certain benefits were refused. A report of mediator was issued December 10, 2001 noting the matters in dispute. The Application for Arbitration herein was received by the Commission on December 27, 2001. The pre-hearing discussion was held on April 16, 2002 before Arbitrator Skinner. The subsequent pre-hearing letter dated April 23, 2002 notes Mr. Reybroek having attended with the Applicant and Ms. C. Byrne, legal counsel, having attended with an Insurer representative. Arbitration hearing dates of October 21, 22 and 23, 2002 were set at that time, providing the parties some six months to further prepare for the arbitration hearing.

The issues in dispute between the parties were identified in the April 23, 2002 pre-hearing letter as entitlement to and the quantum of weekly income replacement benefits, entitlement to payment of certain dental work and entitlement to payment of housekeeping expenses, as well as interest on any overdue payments and entitlement to legal expenses.

The hearing commenced on October 21, 2002, as scheduled, before me. Opening statements were given by both counsel. [V.J.] was called as the first witness. Her examination-in-chief was completed. During her cross-examination, [V.J.] collapsed. Medical services were called. The hearing was adjourned sine die.

By letter dated October 25, 2002, Mr. Reybroek wrote that it would "be prudent to obtain an Assessment of [V.J.'s] condition as well as to the viability of continuing with the Arbitration at the present time." By letter dated October 28, 2002, Mr. Charney wrote that his client would like to continue with the hearing as soon as possible.

A telephone conference call was therefore arranged between myself and both counsel on October 31, 2002. My subsequent letter of November 6, 2003 states, in part that:

Both counsel consented to at least a tentative continuation date of the arbitration hearing of Monday, February 3, 2003, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in North York, the hearing to conclude on Tuesday, February 4, 2003. It is my understanding that the cross-examination of [V.J.] would continue, the evidence of Dr. Isakow to follow upon the completion of [V.J.] evidence.

This office will send you a formal Notice of Hearing confirming the details shortly.

In the interim, Mr. Reybroek undertook to use his best efforts to obtain confirmation by Friday, November 8, 2002 as to [V.J.'s] present medical condition, and to provide Mr. Charney with same. I am not to be provided with any medical documentation from either party except upon the consent of both parties or without first allowing both parties a reasonable opportunity to make submissions regarding same.

Should there be any concerns regarding the continuation of this matter, please contact, as early as possible, the Case Administrator for this file, Ms. Sita Welsh (who can be reached at (416) 590-7089) to set up a telephone conference between myself and both counsel

Subsequently, however, the Commission evidently received medical reports from the office of the Applicant's counsel by letter dated December 16, 2003. The Commission's file indicates that these reports were returned to Applicant's counsel by the Case Administrator by letter dated December 23, 2003. As I indicated in my letter of January 29, 2003, I have not seen these reports.

By letter dated January 9, 2003, Mr. Reybroek wrote the Commission proposing "that the Arbitration set for February 3^rd and 4^th be adjourned in order to not only consolidate all of the outstanding issues [which are noted as being three treatment plans from Universal Injury Rehab, transportation and housekeeping expenses and a section 24 assessment from Assessment Direct] but to allow the insurer the ability to properly respond to the medical and other expert evidence as it is being generated." The latter referred to Mr. Reybroek’s submission that the following reports be allowed into evidence:

– Dr. Schachter, neurologist, dated December 6, 2002;

– Dr. Sharma, physiatrist, dated December 5, 2002;

– Dr. Cooper, psychiatrist, dated November 8, 2002;

– Fred Winch and Associates (Rehabilitation and Disability Consultants) Future Care Needs and Cost Analysis, dated December 16, 2002;

– Fred Winch and Associates (Rehabilitation and Disability Consultants) Loss of Earning Capacity Assessment, dated December 13, 2002;

– Dr. Holtz, note dated November 13, 2002 regarding medical and psychiatric treatment; and,

– the anticipated report of Dr. Kliman, orthopaedic surgeon.

A telephone resumption was then arranged for January 27, 2003, the date being chosen, in part, in order to accommodate Mr. Reybroek’s vacation plans.

During the January 27, 2003 telephone discussion, as I more succinctly stated in my January 29, 2003 letter, Mr. Reybroek clarified that he was not seeking an adjournment, but rather seeking leave to allow the above reports (including that of Dr. Kliman, if it had been received) to be entered into evidence. Mr. Reybroek indicated that as terms of such an order, he was agreeable to adjourning the arbitration hearing to allow the Insurer to obtain insurer medical or (as I understand it) designated assessment centre reports (where appropriate) from at least four experts, namely a neurologist, a psychiatrist, a rehabilitation and disability specialist and an orthopaedic surgeon.

Mr. Reybroek also agreed to waive interest on any overdue payments from February 3, 2003 to the new resumption date. He indicated that he did not intend to recall [V.J.] to give further evidence- in-chief, nor did he intend to call any further witnesses, other than Dr. Isakow, who had previously been identified. Mr. Reybroek proposed that the question of expenses be dealt with at a later date.

Mr. Reybroek submitted that to not allow the further reports into evidence would result in irreparable prejudice to the Applicant. He submitted that I, as the hearing arbitrator, should have all of the available medical and expert evidence before me. He argued that the reports should be allowed in on the basis of fairness and justice and that a strict and literal interpretation of the Rules ought to be avoided. I further understood Counsel's submissions to be that I should exercise my discretion pursuant to Rule 81 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) to allow these further reports, as any prejudice to the Insurer could be remedied by the terms he had suggested.

As I indicated in my January 27, 2003 letter, the Applicant is not seeking an adjournment due to her medical condition or concerns about her ability to proceed in this matter. Nor is the Applicant seeking an adjournment to add further issues to this arbitration proceeding. Mr. Reybroek indicated that he has not yet decided whether to litigate or arbitrate the further issues in dispute.

An adjudicator's preference would be to have all available relevant medical and expert evidence in order to make the most informed decision. During the January 27, 2003 telephone discussion herein, I noted the comment in the 2002-2003 Ontario Annual Practice, at page Rule-529, regarding Rule 53 of the Rules of Civil Procedure, entitled "Evidence at Trial," that "Judges have a penchant for seeking out the merits of the issue between the parties regardless of the conduct of solicitors."

The Commission too, has its specific rules regarding evidence at hearings. As with other adjudicative bodies, the intent, in large measure, is fairness, not just to one side but to both sides, and further, to allow for finality to a proceeding. The intent is to prevent surprise. The intent is to prevent trial by ambush. The intent is to encourage early disclosure and early resolution of disputes, whether the resolution is by consensual agreement or by adjudication. The Rules encourage a cost efficient and speedy form of dispute resolution so that certainly by the start of the hearing, and preferably well in advance of the hearing, each party knows their own case and the case that they are facing.

Hence, the Dispute Resolution Practice Code includes Rule 39, which states, that:

39.1 Subject to Rule 39.2, all documents, reports (including experts' reports) and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing.

39.2 In extraordinary circumstances, a party may seek an arbitrator's permission to serve a document, report or assessment on the other party for use at a hearing less than 30 days before the first day of the hearing.

39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that:

– would not be admissible in a court by reason of any privilege under the law of evidence; or

(b) is not admissible under the Insurance Act; or

(c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.

These provisions were in fact reiterated at page four of Arbitrator Skinner’s April 23, 2002 letter forwarded, inter alia, to counsel:

All documents, reports (including experts reports) and assessments to be introduced at a hearing by either party must be served on the other party at least thirty (30) days before the first day of the hearing. In extraordinary circumstances, a party may seek an arbitrator’s permission to serve a document, report or assessment on the other party for use at a hearing less than thirty (30) days before the first day of hearing. The hearing arbitrator will not admit evidence at a hearing that was not served on the opposing party in accordance with these requirements, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.

Under the Code, if a party intends to introduce an expert’s report at the hearing instead of calling the expert witness, the party must send a copy of the report accompanied by the full name and qualifications of the expert to the other party as soon as possible, but not less than the timelines set out above, namely thirty (30) days before the hearing. Please note: a copy of the report does not need to be filed.

As I indicated in my January 27, 2003 letter, I am not persuaded that there are extraordinary circumstances justifying an exception to Rules 39.1 and 39.2, except for those portions of the reports which pertain to [V.J.'s] collapse on October 21, 2002. As I indicated, [V.J.'s] collapse is certainly an extraordinary circumstance and the comments of the experts which speak to that circumstance must be allowed into evidence. However, as noted previously, I am advised that only one report, being that of Dr. Cooper, and indeed, only one paragraph of same, speaks to this concern.

In determining what is contemplated by "extraordinary circumstances," I have considered other provisions concerning the presentation of evidence. While Rule 81 of the Code provides discretion to an adjudicator, on terms he or she considers just, to set aside any time limits or deciding that any Rule does not apply in respect of a proceeding, same must be done for reasons consistent with the intent of the Dispute Resolution Practice Code. Rule 1.2, which states that "[w]here something is not specifically provided for in these Rules, the practice may be decided by referring to similar Rules in this Code." I note that section 39 would seem to especially address the more usual late service of documents prior to the start of the hearing, rather than the more unusual situation here where documents are served after the start of the hearing, and, indeed, after the start of the Applicant's cross-examination.

I have first considered Rule 43 of the Dispute Resolution Practice Code, which allows an arbitrator to reopen a hearing at any time before he or she makes a final order disposing of the arbitration. In considering the statutory predecessors to this provision, Arbitrator Manji held in Tran and Pilot Insurance Company (OIC A-005207, August 16, 1995) that:

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.

I am not satisfied that several of these reports have significant weight in this particular proceeding. The Future Care Needs and Cost Analysis of Fred Winch and Associates appears to be more appropriate to a tort case rather than this proceeding, in which there is no final determination, for example, of future medical or rehabilitation expenses. The Loss of Earning Capacity Assessment, may have some relevance regarding the Applicant's present employment ability but would seem to also speak more to the Applicant's tort case.

More importantly, I am not persuaded that the lateness of service was justified by unusual circumstances beyond the control of the party seeking to adduce it. I heard no submissions that the evidence was not available to or within the control of the Applicant or that appointments with experts and receipt of their reports could not have been arranged well before the hearing commenced. Rather, I was advised that the nature of the office of the Applicant's counsel is such that Mr. Reybroek usually does the tort aspect of a claim and others advance the first party claim and that his greater involvement in this proceeding was not very far in advance of the start of the hearing.

However, as noted above, the pre-hearing letter herein confirms Mr. Reybroek's attendance at that discussion. Hearing dates are almost invariably set at the pre-hearing discussion with the consent of both counsel. In this case, the hearing was set for dates some six months after the pre-hearing discussion, and some ten months after the failed mediation. To allow all of the reports proffered by the Applicant into evidence would send a general message that the Rules of this Commission are to be honoured more in the breach than in the observance.

I have also considered as possibly being of assistance the criteria regarding fresh evidence, which is set out in the decision of Director’s Delegate Richardson in Plows and Jevco Insurance Company (OIC P-000175, P-000588, May 1992), wherein she stated that:

These criteria, as set out by the Supreme Court of Canada in the context of criminal appeals in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, and reiterated in R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480 are as follows:

– The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

– The evidence must be credible, in the sense that it is reasonably capable of belief;

– The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and

– The evidence 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.

In this case, I am persuaded (not that the onus rests on the opposing party) that with due diligence, the medical evidence could have been obtained and served prior to the start of the hearing. This finding, as a general rule as set out above, should generally by itself dictate against allowing in the further reports, with the exception noted above. However, a further concern in this case is that notwithstanding the Insurer’s desire for an early resumption of the arbitration hearing, the February 2003 dates were set so as to accommodate the calendar of the Applicant’s counsel. The dates were not set to allow further reports to be prepared to speak to, or as argued by the Insurer, bolster the Applicant’s case. Rather, the further medical confirmation undertaken by Mr. Reybroek to be obtained by November 8, 2003 (as set out in my November 6, 2002 letter) spoke to counsel's justifiable concern as to "the viability of [V.J.] continuing with the Arbitration at the present time." During our January 27, 2003 telephone discussion, Mr. Charney specifically stated that no one was saying that the Applicant cannot proceed because of her medical condition. There was no objection or clarification by Mr. Reybroek of that statement.

Lastly, I also considered Rule 4.04(d) of the Rules of Professional Conduct regarding communication with witnesses during cross-examination by an opposing lawyer and Rule 52.06 of the Rules of Civil Procedure which states that "[w]here an order is made excluding a witness from the courtroom, there shall be no communications to the witness of any evidence given during his or her absence from the courtroom, except with the leave of the trial judge until after the witness has been called and has given evidence."

In this case, I made an order, on the consent of both parties, excluding witnesses, other than the Applicant. Rule 52.06(3) of the Rules of Civil Procedure, while obviously not binding on this tribunal, does provide some guidance in its recitation that where an exclusion order is made "there shall be no communication to the witness of any evidence given during his or her absence from the courtroom, except with leave of the trial judge, until after the witness has been called and has given evidence." The premise of this Rule can also be applied, I believe, not merely to the oral evidence but also to the written evidence of experts. The decision of Drosos v. Chong (1992), 8 C.P.C. (3d) 312 (Gen. Div.) is referenced under this Rule as pertaining to a personal injury action where a mistrial was ordered when testimony of previously undisclosed medical evidence was disclosed to the plaintiffs medical experts in violation of an order under that rule.

These provisions and case law support the Insurer's submission that the parties are entitled to assume that the case that they face at the beginning of the hearing will not, in essence, be a moving target. This principle, under the Commission's Rules, is subject, of course, to extraordinary circumstances.

With the exception of those portions which pertain to [V.J.'s] collapse on October 21, 2002, I am not persuaded that "extraordinary circumstances" exist to justify allowing the further reports to be filed as exhibits. Nor am I persuaded that exercising my discretion pursuant to Rule 81 to waive the requirements of Rule 39 would, in these particular circumstances, be in accordance with the intent of the Dispute Resolution Practice Code nor in accordance with the general rules of fairness to all parties and finality (which is perhaps best summarized in Rule 1 of the Dispute Resolution Practice Code that the Rules are to be broadly interpreted to produce the most just, the quickest and the least expensive resolution of the dispute).

As previously advised the arbitration hearing in this case will proceed as scheduled on Monday, February 3 and Tuesday, February 4, 2003, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in North York.

During the January 27, 2003 telephone discussion, I was advised that the Insurer had obtained a copy of the transcript of the October 21, 2002 proceeding. Pursuant to Rule 74 of the Dispute Resolution Practice Code, the Insurer is providing the Applicant, and myself as adjudicator, with a copy of the transcript.

Yours truly,

Lawrence Blackman Arbitrator

Copies to:

[V.J.]

Ms. Sandra Ramlal ADR Coordinator

Security National Insurance Co./Monnex Insurance Mgmt. Inc. P.O. Box 1244, Station K Toronto ON M4P 3E4

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Dorland's Pocket Medical Dictionary, 26^th Ed., W.B.Saunders Company, 2001, Philadelphia, Pennsylvania - Prosthodontics: "the branch of dentistry dealing with construction of artificial appliances designed to restore and maintain oral function by replacing missing teeth and sometimes other oral structures or parts of the face."