Anjum Dar v. Allstate Insurance Company of Canada, 2004 ONFSCDRS 133

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2004 ONFSCDRS 133

Appeal P03-00012

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ANJUM DAR Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA Respondent

Before: David Evans

Representatives: Raj Napal for Ms. Dar Mark L.J. Edwards for Allstate

Hearing Date: December 5, 2003 Written submissions completed by March 31, 2004

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is allowed. The arbitration orders dated March 5, 2003 and May 23, 2003 are revoked and the matter will be remitted for a new hearing before a different arbitrator.

2. The parties may contact me within 30 days if they are unable to agree on appeal expenses.

September 13, 2004

David Evans Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Dar appeals the Arbitrator's decision of March 5, 2003, dismissing her claims for statutory accident benefits under the SABS-1996¹ for injuries arising out of a motor vehicle accident on September 26, 1999. She also appeals the Arbitrator's decision of May 23, 2003, requiring her to pay Allstate Insurance Company of Canada $3,686.25 for its arbitration expenses.

For reasons that follow, the appeal is allowed because the Arbitrator failed to consider pertinent factors in his decision to exclude expert testimony relating to a key aspect of the claim.

II. BACKGROUND

Ms. Dar claimed income replacement benefits ("IRBs") pursuant to s. 4 and housekeeping expenses pursuant to s. 22 of the SABS-1996.

The Arbitrator found that Ms. Dar had worked on and off as an electrolysist for 20 years. She had recently re-established her own business, Finesse Skin Care ("Finesse"), where she provided electrolysis and other services related to skin care. She also performed electrolysis two or three days a week as an employee of Devlin Electrolysis ("Devlin").

Ms. Dar testified that as a result of the accident she could not perform electrolysis. She hired a replacement for her electrolysis work at Finesse, and quit Devlin. She continued running her Finesse business to June 2002, performing other services for clients.

The Arbitrator did not believe Ms. Dar hired a replacement worker or that she stopped working at Devlin. He denied her IRB claim, finding that she could do electrolysis. He also denied her housekeeping claim. The Arbitrator based his decision on the financial records provided by Ms. Dar, which he found incomplete and inconsistent.

At the end of the decision, the Arbitrator stated that he excluded the expert evidence of the two medical practitioners called by Ms. Dar on the basis that she failed to comply with the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) ("the Code"). He limited their testimony to what she told them.

III. ANALYSIS

The heart of this appeal lies in the Arbitrator's decision to prevent Ms. Dar's medical witnesses from giving expert evidence.

The medical witnesses in question were Dr. Eric Pierre, who treated Ms. Dar for a temporo-mandibular joint ("TMJ") problem, and Dr. Pierre Kirwin, a physiatrist who also treated Ms. Dar. Both Dr. Pierre and Dr. Kirwin had been identified as witnesses in the pre-hearing letter, and their reports had been served and filed at least 30 days before the hearing, as required by the Code.

The reports of Dr. Kirwin include assessments and diagnoses of Ms. Dar. In his report of November 18, 1999, he concludes:

In assessment, [Ms. Dar] appears to be suffering from a whiplash associated disorder of the cervical spine with a thoracic and lumbar myofascial strain, coccydynia [pain in the coccyx], right rotator cuff tendinitis, . . . left TMJ [temporomandibular joint] syndrome, post-traumatic migraine, right carpal tunnel syndrome, closed head injury (mild), and non-specific left ear damage. . . . I made arrangements for EMG of the right upper extremity and leg. . . .

In his report of December 10, 1999, Dr. Kirwin notes that the EMG studies "revealed a mild right carpal tunnel syndrome, mild ulnar nerve entrapment across the right elbow, plus peroneal nerve entrapment across the right fibular head. . . ." He recommended that Ms. Dar "spare her right ulnar and peroneal nerve from any further trauma (in particular, she should avoid elbow flexion and knee flexion)." In his further note of May 5, 2000, he diagnosed lumbar myofascial strain.

Dr. Eric Pierre prepared a report on January 8 and a treatment plan on January 10, 2002. He listed these impairments: trauma to the temporomandibular joint, masticatory muscle spasm, right and left sides, pain in the temporomandibular joint, and jaw pain. In the treatment plan he wrote beside "Estimated duration of disability" as being from the day of the accident to "end of treatment."²

Ms. Dar's job was described in a January 2000 work site evaluation.³ The report shows that electrolysis required neck and lumbar flexion, reaching and forward bending, pinch grip, and manual dexterity or fine finger movements. The report also notes that the most challenging components were the lumbar and neck flexion.

The Arbitrator in his decision did not refer to the reports other than to impeach Ms. Dar. In particular, he referred to Dr. Kirwin's report of November 18, 1999, which recorded that Ms. Dar had not returned to work in any capacity. The Arbitrator noted that this was contrary to her testimony that she had returned to work at Finesse, but hired a replacement electrolysist. He did not explain why he preferred this hearsay evidence over Ms. Dar's direct testimony.

The Arbitrator relied on Rule 42 of the Code to exclude the expert testimony.

Rule 42.2 provides that a party intending to call an expert witness must serve and file a document setting out, among other things, the subject matter of the testimony to be presented, and the substance of the facts and opinion which the witness will present — a "will-say" statement. The document must be served on the other party at least 30 days before the first day of the hearing, (Rule 39.1), except with leave in "extraordinary circumstances" (Rule 39.2). The arbitrator will not admit evidence that was not served on the opposite party in accordance with Rules 39.1 and 39.2, "unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception" (Rule 39.3(c)). Finally, failure to comply gives an arbitrator the power to exclude the witness from the hearing or make "such other order as the arbitrator considers just" (Rule 42.3).

The Arbitrator wrote that he did not allow Dr. Pierre to express an opinion on Ms. Dar's disability because Ms. Dar did not "serve Allstate with a document setting out the subject matter of Dr. Pierre's proposed testimony or the substance of the facts and opinion which Dr. Pierre would present." He also upheld Allstate's objection to Dr. Pierre Kirwin "expressing an opinion on disability since he had not expressed an opinion in any report."

Appeals are limited to questions of law.⁴ However, I find the Arbitrator committed an error of law by failing to consider the reports in determining whether there had been late disclosure.

The Rule must be understood in context, including Rule 42.1, which sets out the requirements where a party intends to file an expert report. In arbitration, a party can file an expert's report and call the author as an expert witness. The Arbitrator failed to consider whether a separate "will-say" statement is required under Rule 42.2 if a report has been filed.

This point was discussed in A.B. and Royal Insurance Company of Canada, (FSCO P99-00049, September 18, 2000). The issue was whether the arbitrator had improperly allowed a doctor to testify, as the insurer alleged that the equivalent of Rule 42⁵ had not been followed, although the doctor's consultation notes had been filed. The Director's Delegate noted that an arbitrator has broad powers with respect to the introduction of evidence and the conduct of the proceedings, subject to the principles of natural justice and fairness: "The Commission's practice rules are aimed at ensuring that the proceeding is carried out fairly, effectively and expeditiously, without unnecessary surprise."

The Director's Delegate went on to note that there is no prohibition in this system on both calling doctors and filing their reports: "The process is flexible. The governing principle is fairness." Thus, she held, there is "no set format or technicalities that must be adhered to." All that is required is that the documents filed set out what is to be the substance or thrust of the witness's testimony.

Furthermore, the expert witness is not limited strictly to what is in the reports or consultation notes. In Thorogood et al. and Bowden et al. (1978), 1978 CanLII 1367 (ON CA), 21 O.R. (2d) 385, the Court of Appeal held that, with respect to medical reports, a medical expert is not to be narrowly confined and limited to the precise contents of his or her report, but "has a right to explain and amplify" and to "expand on what was latent in the medical report" as long as it does not "open a new field."

Thus, the principles set out in A.B. and Thorogood mean the Arbitrator should have considered whether Allstate received adequate notice from the reports filed. Ms. Dar's doctors should have been allowed to testify without prior restrictions, and then if Allstate had objected to their evidence on disability, the Arbitrator could have exercised his discretion to determine whether or not that evidence was latent in the reports or opened a new field.

I find that the Arbitrator erred in law by failing to consider whether or not the documents filed met the requirements of Rule 42.2. For that reason, the decision cannot stand and is rescinded. It is remitted to a new hearing before another arbitrator. The Commission may schedule a further pre-hearing to discuss any outstanding production issues or other matters in relation to the hearing.

Similarly, the expenses decision, being based on the original decision, is also rescinded. The matter of expenses will be dealt with in the normal course.

Since the matter is being remitted to a new hearing, I do not have to consider Ms. Dar's request to admit new evidence on the appeal.

In conclusion, I find the recent Court of Appeal ruling in Mader v. Hunter, 2004 CanLII 17834 (ON CA), [2004] O.J. No. 748, apposite. The Court reversed the trial judge, who had dismissed the claim for the plaintiff's failure to comply with undertakings, noting:

The court is always reluctant to dismiss a potentially meritorious claim on grounds that do not address its merits. Unless the defendant can demonstrate prejudice in the sense that to grant the plaintiff the indulgence he or she seeks will prejudice the defendant's ability to defend the claim, the indulgence will usually be granted on appropriate terms.

IV. EXPENSES

The parties may contact me within 30 days if they are unable to agree on appeal expenses.

September 13, 2004

David Evans Director's Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The Insurer indicated that its copy of the January 8, 2002 report did not include page 5 of the report, where Dr. Pierre wrote: "It is my opinion that Mrs. Dar suffers from Temporo-mandibular Joint Dysfunction Syndrome. . . . Her condition is associated with whiplash injury. The most recent collision has exacerbated a pre-existing condition induced by a [page 6] previous trauma."
3. 3Alliance Health & Rehabilitation Inc, Ergonomic Work Site Evaluation conducted January 28, 2000, by Jeanette Rawn, certified kinesiologist.
4. 4Insurance Act, s. 283(1).
5. 5At that time it was Rule 38, but the substance was the same.```