Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 153
FSCO A04-001750
BETWEEN:
JENNIFER ESTERREICHER
Applicant
and
NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: William J. Renahan
Heard: By telephone conference call on September 15, 2005.
Appearances:
Christopher D. J. Hacio for Ms. Esterreicher
Kathryn Pirie for Non-Marine Underwriters, Mbrs. of Lloyd's
Issues:
The Applicant, Jennifer Esterreicher, was injured in a motor vehicle accident on December 23, 2000. She applied for and received statutory accident benefits from Non-Marine Underwriters, Mbrs. of Lloyd's ("Lloyd's"), payable under the Schedule.1 A hearing was scheduled to start in Thunder Bay on September 20, 2005 to determine whether Ms. Esterreicher is entitled to $650 for chiropractic treatment performed by Dr. S. Muha and which Lloyd's refused to pay for.
The preliminary issue is:
- May Lloyd's call more than two expert witnesses at the hearing?
Result:
- Lloyd's may not call more than two expert witnesses.
ANALYSIS:
I base this decision on the information that counsel provided me, which may not necessarily accord with any findings an arbitrator may make after hearing the evidence. Further, my understanding of the issues in dispute is limited to what was necessary for the determination of this application. The hearing arbitrator may redefine the issues. Lastly, the hearing arbitrator is not bound by my decision and may want to hear from more than two expert witnesses.
Background:
On September 8, 2005, I heard Lloyd's request for an adjournment of this hearing on the grounds that one of its witnesses, Dr. Oshidari, was no longer available to testify at the hearing scheduled to commence September 20. I gave reasons for declining Lloyd's request by letter. Ms. Pirie indicated that she planned to call three other experts and I reminded her that under Rule 42.4 of the Dispute Resolution Practice Code, she required permission of an arbitrator to call more than two expert witnesses. She sought permission in this application.
During the course of the application, I learned that Ms. Esterreicher has submitted further treatment plans to Lloyd's, which Lloyd's has refused to fund, and that Ms. Esterreicher has undergone further treatment and incurred further expenses of approximately $700. Mr. Hacio said that he would present the entire claim for incurred and currently proposed treatment expenses at the scheduled hearing. The hearing therefore will deal with a claim for approximately $1,350 in incurred treatment expenses. Mr. Hacio said that Ms. Esterreicher has not taken all the treatment proposed in the submitted treatment plans because she cannot afford it. It is therefore possible that the treatment in dispute may include a further amount for proposed treatment.
After the hearing of this preliminary issue, I verbally advised the parties of my decision that Lloyd's could not call more than two experts. Subsequently, the parties jointly requested that I adjourn the hearing. I granted the request.
Following are my reasons for refusing to permit Lloyd's to call more than two expert witnesses.
Ms. Pirie proposes to call three experts who examined Ms. Esterreicher in Toronto before she moved to Sioux Lookout.
I am not aware of any case at the Commission dealing with permission to call more than two expert witnesses. Under the Ontario Evidence Act2, a party requires the permission of the presiding judge to call more than three expert witnesses. Mr. Hacio referred me to the recent Ontario Superior Court case of Burgess v. Wu, [2005] O.J. No. 929, in which Ferguson J. considered seven criteria for calling more than three expert witnesses. In that case, Ferguson J. noted that contested motions for leave to call more than three experts were rare, because the parties usually consent to calling more than three and the Courts consider this a significant factor in granting permission.
I consider the seven criteria and comments by Ferguson J. as a starting point.
- Whether the opposing party objects to leave being granted.
Ferguson J. commented:
While I can imagine situations where both parties are "overkilling" the evidence, I think that if both parties have agreed on certain numbers of experts or on filing reports from some experts in addition to calling others then this is a significant factor. While there is certainly public expense involved, in civil cases the parties bear a very substantial portion of the costs of trial which is the crux of the rule. I believe contested motions on the issue of granting leave are rare. I think that where there is no opposition then leave is usually granted.
Dispute resolution at the Financial Services Commission is designed to provide an alternative to the Court system. The first rule in the Dispute Resolution Practice Code is as follows:
1.1 These Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.
By allowing lawyers for the parties to call as many experts as they feel are necessary, an arbitrator is not providing a faster and less expensive alternative to the Court system. The question arises as to whose interest is served where the parties agree to procedures which make the process slower and more expensive. To me, the public has an interest in maintaining a procedure which is less expensive and faster than the Court system. That interest may override the parties' interest where counsel agree to a procedure which makes the process slower and more expensive.
In my view, the parties' consent to the calling of more than two experts each is not a significant factor in determining whether an arbitrator should allow a party to call more than two expert witnesses.
- The number of expert subjects in issue.
I believe an arbitrator should be clear as to what is the expert subject in issue. Often, the issue is not a medical or scientific issue upon which an expert is more qualified than the arbitrator. Cases frequently go to hearing because the applicant's complaints of pain or disability are not verifiable through scientific inquiry and the issue is whether the applicant is believable. If an expert can measure pain or disability by scientific testing, observation or analysis, then that expert's opinion evidence will help. Therefore, the party who wishes to call the expert should clearly demonstrate that the expert is offering an opinion based on expert or scientific testing or observation.
The number of experts each side proposes to have opine on each subject.
How many experts are customarily called in cases with similar issues?
Will the opposing party be disadvantaged if leave is granted because the applying party will then have more experts than the opposing party?
An arbitrator does not make a decision on the basis of a numerical count of experts each side has to support its case. An applicant may not have as much expert evidence because he cannot afford it, not because he cannot find an expert to support his case. I do not find this a significant factor.
- Is it necessary to call more than three [in the case of FSCO, two] experts in order to adduce evidence on the issues in dispute?
The various medical specialists have general knowledge of other specialties. Where, the physical impairment is not complex, one expert can usually adduce evidence on the physical issue in dispute. That expert can comment on the testing, observations and results recorded by other experts in their reports, if necessary. Where the physical impairment is complex, more than one expert may be necessary. Another expert is often helpful to adduce evidence on any psychological issues. Where the physical evidence on impairment or disability is not clear, the evidence of a psychologist who demonstrates an understanding of the applicant's circumstances is often helpful, although again, the party can usually introduce that opinion evidence in a report.
How much duplication is there in the proposed opinions of the different experts?
Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial?
I also consider the general criteria for the admissibility of opinion evidence as set out by The Supreme Court of Canada in R. v. Mohan.3 (1) The evidence is relevant to some issue in the case; (2) the evidence is necessary to assist the trier of fact; (3) the evidence does not violate an exclusionary rule; and (4) the witness is a properly qualified expert. The first two criteria are helpful in determining whether a party should be permitted to call more than two experts.
When I consider the remaining criteria set out in Burgess v. Wu, I consider them against the background of whether calling more than two expert witnesses will produce the most just, quickest and least expensive resolution of the dispute.
I also consider whether the expert evidence is necessary to assist the arbitrator. This tribunal has some expertise in resolving no-fault accident benefit claims. In my view, an arbitrator should consider the need to hear from an expert witness in person and whether the witness has anything to add that is not in the report. If the expert has something to add that is not in the report, then the arbitrator needs some explanation as to why that information is not in the report.
To me it is not an answer to say that justice requires that the arbitrator have as much relevant information as possible to come to a decision. Justice also requires that the parties get a quick and inexpensive resolution of their dispute.
I now consider these modified criteria as follows:
- The number of expert subjects in issue.
The issue is whether the chiropractic treatment and proposed treatment was reasonable and necessary. The issue includes the issue of whether a compressed vertebrae fracture, which was discovered some time after the accident, was caused by the accident and whether chiropractic treatment is indicated for such an injury. The causation issue is not uncommon and the parties can deal with it through expert reports. I do not see how an expert's testimony would help an arbitrator. The issue of whether chiropractic treatment is indicated for the treatment of a compressed vertebrae fracture is not as common and an expert's testimony on this area may help.
- The number of experts each side proposes to have opine on each subject.
The Applicant intends to call one expert, the chiropractor whose treatment is in question. The insurer wants to call three experts. Dr. Hugh Cameron is an orthopaedic surgeon who examined Ms. Esterreicher on December 3, 2004 and wrote four reports. Dr. Tal Ora Gyenes is a physiatrist who examined Ms. Esterreicher once and provided a report. Dr. Peter Kim is a chiropractor who examined and reported on Ms. Esterreicher as part of the assessment at a Designated Assessment Centre. It was not clear to me why three experts were necessary to address the issues and how their testimony would help an arbitrator.
- How many experts are customarily called in cases with similar issues?
The testimony in chief and cross-examination of the treatment provider is helpful, not so much as an expert, but as a participant who has an interest in the result of the hearing. However, the treatment provider does not usually testify. Sometimes the insurer may call one expert witness. Frequently, the arbitrator decides the issue of the reasonableness of treatment on whether he or she believes the applicant's evidence that the treatment helped.
- Is it necessary to call more than two experts in order to adduce evidence on the issues in dispute?
The issue of the scope of treatment provided by a chiropractor is not common and evidence to deal with that issue is probably helpful.
- How much duplication is there in the proposed opinion of the different experts.
I cannot assess the degree of duplication in the proposed testimony of the insurer's experts.
- Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial?
The amount in dispute is approximately $1,350. The Insurer's experts have to travel from Toronto to Thunder Bay. The amount in dispute is totally out of proportion to the number of experts the insurer wants to call.
Having regard to these criteria, I would not permit Lloyd's to call more than two expert witnesses.
EXPENSES:
Expenses of this application are in the discretion of the hearing arbitrator.
October 28, 2005
William J. Renahan Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2005 ONFSCDRS 153
FSCO A04-001750
BETWEEN:
JENNIFER ESTERREICHER
Applicant
and
NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Lloyd's is not entitled to call more than two expert witnesses.
October 28, 2005
William J. Renahan Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- R.S.O. 1990, c. E-23.
- 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9