Neutral Citation: 2004 ONFSCDRS 32

FSCO A02-001087

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

EMA PAU NOVA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: David Muir

Heard: By telephone conference call on February 27, 2004. Written submissions were received on February 17 and 23, 2004.

Appearances: Christopher D. Finlay for Ms. Paunova William M. Sproull for Allstate Insurance Company of Canada

Issues:

The Applicant, Ema Paunova, was injured in a motor vehicle accident on June 15, 2000. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹

The issue in this motion is:

Is Ms. Paunova entitled to reopen the hearing and introduce new evidence pursuant to section 43 of the Dispute Resolution Practice Code, Fourth Edition, May 31, 2001. (the "Code").

RESULT:

Ms. Paunova is entitled to reopen the hearing and introduce new evidence pursuant to Rule 43 of the Code.

EVIDENCE AND ANALYSIS:

The circumstances giving rise to this motion are as follows:

The arbitration hearing commenced on May 12, 2003 and the parties had each concluded their respective cases on December 19, 2003. Closing argument had been scheduled to be held, on February 26, 2004.

Ms. Paunova is claiming income replacement benefits beyond the 104 week mark. Accordingly she must establish that she is completely unable to perform any work for which she is reasonably suited by reason of her education, training or experience. Evidence addressing these issues has been lead by both parties.

After the conclusion of the evidence in December, Ms. Paunova reported, via her counsel, that she experienced an episode of dizziness and fell on February 10, 2004, causing injuries to her left foot. According to hospital records filed by Ms. Paunova, she has suffered oblique fractures across the second, third and fourth metatarsal bones of her left foot.

Ms. Paunova seeks to lead evidence about the circumstances surrounding the fall leading to the injuries described and, the effect of those injuries on her ability to function. She also seeks leave to tender expert evidence linking her fall to the motor vehicle accident in 2000. This is important because, while there has been some evidence from Ms. Paunova about dizzy spells and her falling, there are a number of other possible causes for the dizziness, including a documented history of hypertension going back some time before the motor vehicle accident. Although, it is Ms. Paunova's position that her most recent fall is related to the accident and a possible traumatic brain injury, implicit in this motion is a request that the matter be adjourned while this position is confirmed, or not, by an expert assessment.

Ms. Paunova relies on Rule 43 of the Code:

43.1 The arbitrator may reopen a hearing at any time before he or she makes a final order disposing of the arbitration.

The parties are generally agreed on the legal principles that ought to apply to the exercise of the discretion granted to an arbitrator in Rule 43. They disagree about the application of these principles to the circumstances here. These are drawn from the factors used by the courts² in determining whether or not to allow the introduction of fresh evidence on an appeal as follows:

The evidence should not be admitted if, by due diligence it could have been adduced at trial.
The evidence must be relevant in the sense that it bears upon a decisive issue in the trial.
The evidence must be relevant in that it is reasonably capable of belief
The evidence must be such that if believed it could reasonably, when considered with the other evidence adduced at trial, be expected to have affected the result.

Ms. Paunova argues that her request meets the criteria as set out above.

In principle, I agree.

The circumstances giving rise to the request did not exist prior to February 10, 2004, the day that Ms. Paunova claims that she fell and suffered an injury. The evidence of the fall and its sequalae, if it can be shown to be a consequence of the motor vehicle accident, is relevant to the issue of Ms. Paunova's entitlement to income replacement from February 10, 2004 and ongoing. The evidence is reasonably capable of belief - there are hospital records that support that something occurred on February 10, 2004, which caused broken bones in Ms. Paunova's foot. Finally, if the evidence is accepted it could be decisive with respect to entitlement to income replacement benefits beyond February 10, 2004.

I am not unsympathetic to Allstate's position in this matter. This case has taken an inordinate amount of time to be completed, although it would be unfair to ascribe the length of the hearing to Ms. Paunova. This motion has already resulted in a delay. Further evidence will inevitably lead to further significant delay in concluding this matter. My conclusions here will almost certainly increase the arbitration expenses for both parties.

Allstate relies upon a number of FSCO decisions, in particular a decision of Arbitrator Manji in Tran and Pilot Insurance (OIC A-005207, August 16, 1995). The Arbitrator in that decision declined to allow the insurer to introduce the Reasons for Judgement of an Ontario Court (General Division) (Small Claims Court) decision because in her view, it was not relevant to any issue in the arbitration. However, in considering the scope of her discretion to allow a party to reopen their case the arbitrator offered the following view:

I believe 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.

It is difficult not to agree with this statement of the principles that ought to be considered in determining whether to permit a party to reopen the hearing. I find however, that the circumstances arising here are exceptional and extraordinary. The evidence giving rise to the request to reopen the hearing although, related to an entitlement issue squarely before me - entitlement beyond February 10, 2004 to the date the hearing should have concluded, at least - only came into existence after Ms. Paunova closed her case in December. To my mind Rule 43 was intended for precisely these kinds of circumstances where, in considering entitlement to an ongoing benefit, a new and unforseen event occurs upon which entitlement to the benefit can potentially be established.

The additional expense and inconvenience for the parties, the insurer in particular, in reopening the hearing must be balanced against the expense, inconvenience and potential prejudice for Ms. Paunova, if she is required to pursue a claim to benefits beyond February 10, 2004 in a further proceeding.

Mr. Finlay has indicated that he has taken steps to have Ms. Paunova assessed by Dr. Edmeads and it is possible depending on the doctor's opinion, that there will be no need for her to reopen her case. I also understand that the parties are prepared to resume the hearing on March 26, 2004. At that time the setting of further dates in this matter either for closing argument or to deal with the evidence to be tendered by Ms. Paunova and any response by the insurer, will be canvassed.

EXPENSES:

The question of expenses of this motion was not addressed by the parties and will be canvassed at the conclusion of the main hearing.

March 10, 2004.

David Muir Arbitrator

Date