Financial Services Commission of Ontario
Neutral Citation: 2005 ONFSCDRS 88
FSCO A04-001769
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KATHY DEMELO
Applicant
and
GORE MUTUAL INSURANCE COMPANY
Insurer
DECISION ON PROCEDURAL ISSUES
Before:
Jeffrey Rogers
Heard:
May 30, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
David Levy, solicitor for Ms Demelo
Lawrence M.. Foy, solicitor for Gore Mutual Insurance Company
Issues:
The Applicant, Kathy Demelo, was injured in a motor vehicle accident on May 15, 2001. She applied for and received statutory accident benefits from Gore Mutual Insurance Company ("Gore Mutual"), payable under the Schedule.1 A dispute arose with regard to her entitlement to further income replacement benefits. The parties were unable to resolve their dispute through mediation, and Ms Demelo 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 begin on May 30, 2005.
Gore Mutual raised the following three procedural issues:
Gore Mutual sought an order requiring Ms Demelo to produce for cross-examination Dr. Kekosz and Dr. Hanick, who she had identified as witnesses she intended to call to testify but later decided not to call. In the alternative, Gore Mutual sought an adjournment so that the doctors could be summoned.
Gore Mutual sought an order for an abridgement of time so that a videotape, a copy of which had been provided less than 30 days before the hearing, could be admitted into evidence. In the alternative, Gore Mutual sought an adjournment in order to comply with Rule 40 of the Dispute Resolution Practice Code.
Gore Mutual sought an order excluding the report of Dr. Kekosz, particulars of whose qualifications had not been provided as required by Rule 42.1 of the Code.
Result:
The hearing is adjourned so that Dr. Kekosz and Dr. Hanick may be summoned to attend for cross-examination.
It is not necessary to decide the merits of the other procedural issues.
The parties shall bear their own expenses of the adjournment.
EVIDENCE AND ANALYSIS:
I received oral submissions on the first two issues. I deferred a decision on how to proceed on the third issue because the relevant facts were in dispute. I gave an oral ruling granting an adjournment so that Dr. Kekosz and Dr. Hanick could be summoned to attend for cross-examination. Because of that ruling, it was not necessary to rule on the remaining issues since any breach of the Rules could be cured pending the resumption of the hearing.
Gore Mutual's apparent intentional disregard of the requirement of Rule 40 of the Dispute Resolution Practice Code to provide a copy of videotapes was taken into account in my decision on expenses. I gave brief oral reasons, with written reasons to follow.
The pertinent facts are not in dispute. They are as follows: at the pre-hearing, held on January 19, 2005, counsel for Ms Demelo identified Dr. Kekosz and Dr. Hanick as witnesses Ms Demelo intended to call to testify. Counsel for Gore Mutual did not at that time name these doctors as witnesses required to attend for cross-examination on a report. There was no further communication between the parties on this issue until May 20, 2005 when counsel for Gore Mutual sent a letter to Ms Demelo's counsel requesting that 6 witnesses, including these two doctors, be made available for cross-examination.
On May 26, 2005, counsel for Ms. Demelo informed counsel for Gore Mutual that he would be relying on the doctors' reports, not calling them as witnesses, and they would not be made available for cross-examination. Counsel was able to make this choice because, as often happens, the Rule 42.2 prerequisites for calling an expert witness had been satisfied by serving a report by the expert, thus also satisfying the Rule 42.1 prerequisites for introducing the report.
Neither party had notified the doctors that they may be called as witnesses. In response to a telephone call, it was determined that Dr. Hanick was not available. Dr. Kekosz could not be reached to ascertain her availability. Therefore, if I accepted Gore Mutual's position, the only way to obtain the doctors' viva voce evidence would be by granting an adjournment.
Rule 41.1 of the Dispute Resolution Practice Code provides as follows:
Each party must provide the other parties with the names of witnesses that the party intends to call and the names of persons the party requires to attend for cross-examination on a report, at least 30 days before the first day of the hearing.
Counsel for Ms Demelo submitted that Rule 41.1 requires Gore Mutual to notify of its intention to require the doctors to attend for cross-examination at least 30 days before the hearing and, Gore Mutual having failed to do so, Ms Demelo was under no obligation to secure their attendance. Counsel submitted that, because Rule 41.3(a) allows an arbitrator to excuse a witness not identified at the pre-hearing, parties are encouraged to identify all potential witnesses out of an abundance of caution. At the pre-hearing, parties have not yet developed their strategy to the point where they can name witnesses with any degree of certainty. Having identified a witness, the party is not required to call that witness. Therefore, a party is required to identify a witness for cross-examination, even if that witness is already named as a witness by the other party.
There are no decisions directly on point. I do not accept the submission that Rule 41.1 requires a party to identify for cross-examination an expert witness the other party has indicated an intention to call. If the other party will be calling the witness, that witness will be available for cross-examination. Imposing a requirement to name that witness for cross-examination is superfluous and contrary to common sense. The Rule does not require identification of witnesses simply for cross-examination, but identification of witnesses for cross-examination on a report. Therefore, Rule 41.1 requires a party to identify those witnesses who will be called to testify in-chief and those witnesses upon whose reports the other party is relying, who will be required for cross-examination.
Rule 41.1 must be read in the context of Rules 32 and 33 which set out requirements for exchange of documents and establish the purposes of the pre-hearing. The Rules encourage early preparation and impose a continuing obligation to update information. They do not encourage imprecise decision making, as counsel for Ms Demelo submitted.
Having already participated in mediation, the Rules contemplate that the parties' positions will be well developed by the time of the pre-hearing. Rule 32.1 contemplates that parties will have identified and exchanged relevant documents before the pre-hearing and will have given thought to completion of exchange of any outstanding documents. Rule 32.2 imposes an ongoing obligation to promptly exchange documents and update information previously exchanged.
Among the express purposes of the pre-hearing, established by Rule 33.1, is the purpose of identifying the expert and lay witnesses to be called at the hearing and determining the length of the hearing.
If parties are only required to guess at who they may call as witnesses, as counsel for Ms. Demelo suggested, it would be impossible to estimate how long the hearing will take. If the strategy for the hearing is so poorly developed that no real thought has been given to the necessary witnesses, it is not likely that the parties would be able to engage in meaningful settlement discussions, another express purpose of the pre-hearing.
It is also noteworthy that the pre-hearing is not the last opportunity to identify witnesses. The deadline established by Rule 41.1 is 30 days before the first day of the hearing. Therefore, if counsel is uncertain or unprepared at the pre-hearing, there is still time to give the issue real thought. There is no need to simply guess.
Ms Demelo identified Dr. Kekosz and Dr. Hanick as witnesses she intended to call. Gore Mutual was entitled to expect that they would be available for cross-examination. A change of mind or imprecise thinking by counsel at the pre-hearing, should not have the effect of denying Gore Mutual the right to cross-examine. The Rules do not impose a specific obligation for these circumstances and they cannot provide a complete code that encompasses every potential in an arbitration proceeding. The efficient and fair conduct of an arbitration proceeding requires a certain amount of give and take between the parties. It was incumbent upon Ms Demelo to inform Gore Mutual of the decision not to call these doctors as early as possible, so that Gore Mutual could protect its right to cross-examine. This duty is included in the broad obligation to update information previously exchanged, imposed by Rule 32.2.
Since the doctors are not available, the hearing must be adjourned to secure their attendance. The issue of delivery of a copy of the videotape less than 30 days before the hearing is therefore moot and any deficiency in providing particulars of Dr. Kekosz's qualifications can now be cured.
EXPENSES:
Gore Mutual has been successful on this issue. However, Gore Mutual failed to deliver a copy of the videotape in apparent intentional disregard of the requirement of Rule 40.1(b). Instead counsel was invited to attend to view the tape. The breach of Rule 40 made it necessary for Gore Mutual to seek an arbitrator's exercise of discretion under Rule 81.1(a) or request an adjournment. In these circumstances, the parties should bear their own expenses of this adjournment.
June 24, 2005
Jeffrey Rogers
Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 88
FSCO A04-001769
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
KATHY DEMELO
Applicant
and
GORE MUTUAL 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 a date to be fixed so that Dr. Kekosz and Dr. Hanick may be summoned to attend for cross-examination.
The parties shall bear their own expenses of the adjournment.
June 24, 2005
Jeffrey Rogers
Arbitrator
Date