FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2005 ONFSCDRS 87
FSCO A04-002211
BETWEEN:
JAGDEAP RATTAN
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION ON PROCEDURAL ISSUES
Before:
Jeffrey Rogers
Heard:
June 7, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Stephen Braithwaite for Mrs. Rattan
Joseph Griffiths for Pilot Insurance Company
Issues:
The Applicant, Jagdeap Rattan, was injured in a motor vehicle accident on May 23, 2003. She applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.1 A dispute arose regarding Mrs. Rattan's entitlement to further treatment at Total Care Management and further payment for assistance with housekeeping. The parties were unable to resolve their dispute through mediation, and Mrs. Rattan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The hearing was scheduled to start on June 7, 2005. Counsel for Pilot sought a ruling on the consequences of the unavailability for cross-examination of the expert witnesses upon whose opinions the applicant proposed to rely.
The issue is:
- What consequence should result from the fact that the expert witnesses on whose opinions the applicant proposes to rely are not available for cross-examination?
Result:
The hearing is adjourned to December 12, 13, 14 and 15, 2005.
Mrs. Rattan shall pay Pilot's expenses of the adjournment in the amount of $300, in any event of the cause.
The expert witnesses for Mrs. Rattan will be a representative of Total Care Management and her family doctor.
The representative of Total Care Management will be identified no later than June 8, 2005.
Mrs. Rattan will be relying on the report of Dr. Langer and will make him available for cross-examination.
The clinical notes and records of Mrs. Rattan's family doctor shall be delivered no later than June 10, 2005.
Neither party shall deliver reports of any new experts, pending the adjournment.
EVIDENCE AND ANALYSIS:
I heard submissions and made an oral ruling reserving only on the quantum of expenses. The issues in this hearing are entitlement to payments for further physiotherapy treatment and further assistance with housekeeping. Mrs. Rattan proposes to rely on the expert evidence of the physiotherapist, her family doctor and Dr. Langer.
At the pre-hearing, Mrs. Rattan identified the expert witnesses as Dr. Quershi, the family doctor and a massage therapist. They have not been more specifically identified. Pilot takes no issue with the failure to specifically name the family doctor but is unsure as to who the other expert may be.
On May 13, 2005, counsel for Pilot requested confirmation as to the experts that Mrs. Rattan intended to call. There was no response. Instead, counsel for Mrs. Rattan simply indicated that he would be seeking leave to file the report of Dr. Langer that had been served less than 30 days before the first day of the hearing, in breach of Rule 41.1 of the Dispute Resolution Practice Code. Counsel for Mrs. Rattan did not inform counsel for Pilot, until today, that no experts would be called as witnesses. Instead, Mrs. Rattan proposed to rely on reports and records.
In summary:
Some reports from Total Care Management have been delivered, but its clinical notes and records have not been delivered. Counsel believes that a representative of Total Care may be available to attend tomorrow.
Neither a report nor the clinical notes and records of the family doctor has been delivered and he is probably not available to attend.
Dr. Langer's report was not delivered as the Rules require and there is no information as to his availability.
Counsel for Mrs. Rattan conceded that Pilot has a right to have Mrs. Rattan's experts available for cross-examination and proposed to make his best efforts to make them available now or at a later date. He explained that he was concerned about obtaining leave to file Dr. Langer's report and therefore did not pay attention to the request to confirm which witnesses he planned to call. He conceded that Pilot should be awarded its expenses in the event of an adjournment.
Counsel for Pilot proposed to proceed. He sought an order excluding all of the applicant's medical evidence. Although submitting that he wanted to proceed, provided that the hearing could be conducted fairly, and that he did not propose to be successful "on a technicality", he acknowledged that the result of excluding the applicant's medical evidence would likely be dismissal of the application.
It did not appear that the hearing could proceed without either admitting evidence, without cross-examination, or excluding evidence critical to the applicant's success. This being the first time the matter had come on for hearing, it appeared that the most just way to proceed would be to adjourn the hearing on terms that compensated Pilot for unnecessary expense incurred and ensured that the circumstances necessitating the adjournment would not be repeated. To that end, I made an oral order, confirmed by the written order attached hereto, reserving only on the quantum of expenses.
EXPENSES:
Being clearly not ready to proceed, Counsel for Mrs. Rattan conceded that Pilot was entitled to its expenses of the adjournment, in any event of the cause.
Pilot sought $850 for the cost of airfare for counsel from Ottawa, plus $139 for hotel accommodation in Toronto and other sundry transportation expenses for counsel.
Since it was not necessary for Pilot to retain Ottawa counsel for a Toronto hearing, I do not find it reasonable to award the disbursements claimed.
I find that $300 adequately compensates Pilot for the preparation time that counsel will be required to duplicate as a result of the adjournment.
June 22, 2005
Jeffrey Rogers Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 87
FSCO A04-002211
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
JAGDEAP RATTAN
Applicant
and
PILOT INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The hearing is adjourned to December 12, 13, 14 and 15, 2005.
Mrs. Rattan shall pay Pilot's expenses of the adjournment in the amount of $300, in any event of the cause.
The expert witnesses for the Mrs. Rattan will be a representative of Total Care Management and her family doctor.
The representative of Total Care Management will be identified no later than June 8, 2005.
Mrs. Rattan will be relying on the report of Dr. Langer and will make him available for cross-examination.
The clinical notes and records of Mrs. Rattan's family doctor shall be delivered no later than June 10, 2005.
Neither party shall deliver reports of any new experts, pending the adjournment.
June 22, 2005
Jeffrey Rogers Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.