Donna C. Hart v. Allstate Insurance Company of Canada, 2004 ONFSCDRS 84

Neutral Citation: 2004 ONFSCDRS 84

FSCO A98-000988

BETWEEN:

DONNA C. HART

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION HEARING

Before: Judith Killoran

Heard: May 31, 2004, in Hamilton, Ontario.

Appearances:

Mrs. Hart was unrepresented

Meredith J. Donohue for Allstate Insurance Company of Canada

Issues:

The Applicant, Donna C. Hart, was injured in a motor vehicle accident on August 16, 1995. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Hart applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in dispute at the arbitration hearing were identified and agreed to in a pre-hearing letter dated January 24, 2001. They are the following:

Is Mrs. Hart entitled to receive other disability benefits from August 23, 1995 and ongoing, pursuant to section 19 of the Schedule?
Does Mrs. Hart have a reasonable excuse for not complying with the time lines for submitting an application for other disability benefits, pursuant to subsection 59(4) of the Schedule?
What amount, if any, is Allstate allowed to take credit for by way of collateral benefits with regard to the claim for other disability benefits?
Is Allstate liable to pay Mrs. Hart's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Hart liable to pay Allstate's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Mrs. Hart also claims interest on any amounts owing.

Preliminary Issues

Allstate requested that issue no. 3 above be deleted. Allstate conceded that it would no longer be asking that any collateral benefits received by Mrs. Hart be taken into account when calculating her potential entitlement to other disability benefits.
Mrs. Hart asked that Ms. Lucianna Tummillo, an articling student assisting Mrs. Donohue, Allstate's counsel, be excluded from the hearing due to confidentiality concerns. Mrs. Hart submitted that she had not been notified that Ms. Tummillo would be present. Allstate submitted that Ms. Tummillo was responsible for organizing most of the material for the hearing and owed the same duty of confidentiality to Mrs. Hart as Mrs. Donohue. I found that it was appropriate for Ms. Tummillo to remain as she had a positive contribution to make to ensuring a fair and efficient hearing. I also confirmed that it is appropriate for Ms. Tummillo to continue to participate in any further proceedings.
I returned to Mrs. Donohue the following briefs: List of Pleadings, Tabs 1-16; Medical Documents, Tabs 1-43; and List of Documents, Tabs 1-114. Mrs. Donohue will arrange to have the briefs bound and returned to the Financial Services Commission. Also, Mrs. Donohue undertook to send a courier, who will phone ahead, to Mrs. Hart's house to pick up a box containing the briefs. The briefs will be bound and couriered back to Mrs. Hart. I returned to Mrs. Donohue three surveillance tapes. The tapes cover the following periods of time: December 23, 2000, June 13, 14, 15 and 16, 2001, and March 2, 2002. Mrs. Hart confirmed that she has the three surveillance tapes and will review them before the hearing.
Mrs. Hart executed an authorization dated May 31, 2004 authorizing Dr. Richard Black to transcribe his clinical notes and records from July 8, 1992 to November 23, 2001 at Mrs. Donohue's expense.

MOTION

Mrs. Hart brought a motion to have the hearing adjourned. Her family physician, Dr. Richard Black, was out of the country. She declined to give her consent to Mrs. Donohue's earlier request that Dr. Richard Black's notes and records be filed and the hearing proceed. She submitted that Dr. Black is an important witness whose testimony she requires in order to present her case.

Allstate submitted that, after attempting to review Dr. Black's records, it had discovered that they were illegible. Therefore, it required both a transcription of Dr. Black's records and Dr. Black's presence at the hearing for the purposes of cross-examination. For that reason, Allstate consented to Mrs. Hart's request for an adjournment. When I raised the possibility of proceeding and scheduling another date for Dr. Black's testimony, Allstate stated that a good deal of its cross-examination of Mrs. Hart would be based on Dr. Black's evidence.

I granted Mrs. Hart's adjournment request, on consent from Allstate. It was not possible to structure the hearing to ensure a full, fair and efficient process in the absence of Dr. Black. Allstate undertook to issue and serve a summons on Dr. Black to ensure his presence at the rescheduled hearing. The hearing dates agreed to by the parties are: September 27, 28, 29 and 30, 2004.

The records of Dr. Hart, Dr. Hershberg and Dr. Lacerte are contained within the hearing briefs. Mrs. Hart confirmed that she would not be issuing a summons for any of these doctors to appear. Allstate confirmed that it did not expect to call any of these doctors as witnesses. However, Allstate reserved its right to call any or all of the three doctors if it thinks it necessary after the testimony of Dr. Black. Allstate undertook to issue and serve a summons for any witness it requires and will ensure the attendance of its witnesses at the hearing in September.

Allstate also undertook to reimburse Mrs. Hart for the cost of a taxi to and from the first day of hearing on September 27, 2004.

EXPENSES:

I leave to the discretion of the hearing arbitrator the issue of expenses incurred in this motion hearing.

June 4, 2004

Judith Killoran

Arbitrator

Date