Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 6
FSCO A03-000366
BETWEEN:
MYRA STRZALKA
Applicant
and
COACHMAN INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Eban Bayefsky
Heard: July 5 and 6, 2005, at the offices of the Financial Services Commission of Ontario in Toronto. Orders issued July 6, 2005
Appearances:
Brett Carr for Ms. Strzalka
Jamie Pollack for Coachman Insurance Company
Issues:
The Applicant, Myra Strzalka, was injured in motor vehicle accidents on April 22, 1998 and May 11, 1999. She applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule.1 Coachman denied Ms. Strzalka's claim for chiropractic treatment and physiotherapy, between May 12, 1998 and April 12, 2000 at Active Therapy and Rehabilitation, in the amount of $1,952. Coachman also denied Ms. Strzalka's claim for physiotherapy, between April 22, 1998 and June 5, 2000 at Sports Medicine and Rehabilitation, in the amount of $25,877.53. The parties were unable to resolve their disputes through mediation, and Ms. Strzalka applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The arbitration hearing in this matter commenced on July 5, 2005. The substantive issues were Ms. Strzalka's entitlement to the medical accounts from Active Therapy and Sports Medicine. At the outset of the hearing, Coachman brought a motion to have two medical witnesses (Drs. Klodas and Marciniak), their clinical notes and records, and other documents recently served by Ms. Strzalka, excluded from the hearing. In response, Ms. Strzalka sought an adjournment of the hearing. I heard submissions from the parties and issued my rulings on July 6, 2005, denying Ms. Strzalka's request for an adjournment and granting Coachman's request to have the noted witnesses and documents excluded from the hearing. Due to the nature of my rulings and the effect they would have on Ms. Strzalka's ability to maintain her arbitration, Ms. Strzalka sought a stay of the proceeding pending receipt of my reasons and an appeal of my rulings. Upon hearing submissions from the parties, I granted Ms. Strzalka's request for a stay.
The preliminary issues are:
Is Ms. Strzalka entitled to an adjournment of the hearing, pursuant to Rule 72 of the Dispute Resolution Practice Code?
Are the documents recently served by Ms. Strzalka admissible, pursuant to Rules 34 and 39 of the Dispute Resolution Practice Code?
Should Drs. Klodas and Marciniak be excluded from the hearing, pursuant to Rule 42 of the Dispute Resolution Practice Code?
Should Ms. Strzalka's arbitration be stayed pending the outcome of her appeal of the rulings on issues 1 to 3?
Result:
Ms. Strzalka is not entitled to an adjournment of the hearing.
The documents recently served by Ms. Strzalka are inadmissible.
Drs. Klodas and Marciniak are excluded from the hearing.
Ms. Strzalka's arbitration is stayed pending the outcome of her appeal of the rulings on issues 1 to 3.
EVIDENCE AND ANALYSIS:
Background: The Proceedings To Date
Ms. Strzalka filed Applications for Arbitration on March 11 and March 18, 2003 in respect of her two accidents and the related claims for medical benefits. On May 9, 2003, counsel for Coachman, Mr. Pollack, served the Response by Insurer to an Application for Arbitration on Ms. Strzalka's counsel at the time, Mr. Andrew Mantella. In an accompanying letter, Mr. Pollack asked Mr. Mantella to provide the following information "in anticipation of the pre-hearing discussion in this matter":
A decoded OHIP summary from 1993 to date;
Complete copies of the clinical notes and records of your client's treating and examining medical and healthcare practitioners including, but not limited to, physicians, surgeons, therapists, and hospitals, from 1993 to date;
A complete copy of the files from any other insurance companies from whom your client is entitled to receive benefits, including a copy of the insurance policy and a summary of payments;
A complete copy of your client's UIC/EI files, if any;
A complete copy of your client's WCB/WSIB files, if any;
A complete copy of your client's CPP files, if any;
A complete copy of your client's social assistance/welfare file, if any.
Coachman filed its Response by Insurer to an Application for Arbitration and an Amended Schedule "A" to the Response on June 4, 2003. In addition to denying Ms. Strzalka's entitlement to the benefits claimed, Coachman also maintained, in part, that Ms. Strzalka was in violation of section 33 of the Schedule to provide "information reasonably required to assist the insurer in determining the person's entitlement to a benefit." Coachman also served and filed a pre-hearing brief on June 4, 2003, setting out its position on the issues in dispute and reiterating its list of production requests.
The Commission conducted a pre-hearing conference in this case on July 15, 2003. Ms. Strzalka participated, represented by Mr. Mantella. Mr. Pollack participated on behalf of Coachman. Among other things, the parties identified the issues in dispute, discussed the production of documents and listed their anticipated witnesses. The pre-hearing Arbitrator consolidated Ms. Strzalka's two Applications for Arbitration and scheduled the joint hearing for March 8-11, 2004. On July 17, 2003, the pre-hearing Arbitrator issued her pre-hearing letter confirming the parties' discussions. In particular, the Arbitrator noted the issues as including Ms. Strzalka's claim for the outstanding medical accounts and whether Ms. Strzalka was "precluded from payment of some or all of her benefits as a result of her failure to produce reasonable and necessary documents pursuant to sections 32 and 33 of the Schedule." The Arbitrator also set out the relevant rules and obligations in respect of productions, witnesses and evidence. The Arbitrator noted that the parties had "partially agreed on production exchange subject to any issues arising out of the documents to be exchanged." The Arbitrator did not identify which, if any, production requests were disputed. The Arbitrator noted that it was the "present intention of the parties to call the following witnesses":
For Ms. Strzalka:
Ms. Strzalka
Dr. Klodas, family physician
Dr. Marciniak
Dr. Mizec, chiropractor
Dr. Langer, orthopaedic surgeon
For Coachman:
Dr. Selchen, neurologist
Dr. Paul Marks, orthopaedic surgeon
Dr. T. K. Chan, orthopaedic surgeon
Representative of Coachman
Representative of WSIB
The following DAC assessors:
Dr. Devlin, physiatrist
Ms. Susan Wagar, physiotherapist
Dr. Kopansky-Giles, chiropractor
On August 5, 2003, Mr. Pollack wrote Mr. Mantella stating, in part, as follows: "Further to our attendance at the pre-hearing discussion on July 15, 2003, I confirm your agreement to produce the information and documentation previously requested by my office. I look forward to receiving same." Mr. Pollack wrote Mr. Mantella another letter on August 5, 2003 stating as follows:
Further to your production requests, as agreed at the pre-hearing discussion, I enclose herewith the indices to our briefs, as follows:
Liability Brief;
Medical Brief;
Damages Brief;
Accident Benefits Brief;
WSIB Brief;
Employment/Income Brief.
Please advise if you require any of the documents listed therein.
On February 6, 2004, Coachman served and filed its Arbitration Brief in respect of the hearing scheduled to commence on March 8, 2004. On February 9, 2004, Mr. Pollack wrote the Commission "urgently requesting a reconvening of the pre-hearing in this matter as the insured's representative has failed to provide documents to the insurer [in particular the complete WSIB file] despite repeated requests." The pre-hearing conference resumed on February 27, 2004, at which Mr. Mantella indicated that he would be seeking an adjournment of the upcoming hearing.
On March 1, 2004, Mr. Mantella wrote the Commission stating, in part, as follows: "As previously discussed, I have a trial commencing March 8, 2004 and therefore request an adjournment in the above-noted matter....Defence counsel has been aware of the fact that there is a conflicting matter for some time. Defence counsel opposes this adjournment...."
On March 3, 2004, Mr. Pollack responded to Mr. Mantella's adjournment request. Mr. Pollack confirmed the previous correspondence on productions and stated that "there ha[d] been no explanation offered for the insured's failure to produce the information and documentation which was undertaken to be produced at the pre-hearing discussion." Mr. Pollack cited Rule 72 of the Dispute Resolution Practice Code and Practice Note 9 on adjournments, arguing that this situation clearly fell within the circumstances under which adjournments are normally refused.
By letter dated March 3, 2004, the adjournment Arbitrator granted Mr. Mantella's adjournment request, "but not for the reason stated in [his] letter of March 1, 2004." The Arbitrator indicated that he was unable to contact Mr. Mantella on March 3, 2004 and was concerned about Mr. Mantella's claim that he had a trial commencing March 8, 2004. The Arbitrator stated that, "in order to protect both your client and the integrity of the dispute resolution process," he would allow the adjournment on the condition that Mr. Mantella contact the Commission by March 12, 2004 to set a new date for the hearing and make submissions as to whether expenses should be awarded against him personally. Mr. Pollack would have an opportunity to provide submissions, should he wish to do so. Further correspondence followed, but the Arbitrator ultimately determined that the parties had abandoned the issue of expenses caused by the adjournment.
On November 2, 2004, Mr. Pollack wrote the Commission again "urgently requesting a reconvening of the pre-hearing in this matter as the insured's representative has failed to provide documents to the insurer despite repeated requests." On November 8, 2004, the Commission conducted a settlement discussion with the parties. The matter did not resolve. The settlement Arbitrator wrote the parties, confirming that Ms. Strzalka had requested an adjournment "in order to obtain productions, particularly, the applicant's WSIB file." The Arbitrator adjourned the hearing, on consent, from November 15-18, 2004 to July 5-7, 2005. The Arbitrator also held that, as a condition of the adjournment, and on consent of the parties, interest would not accrue on any award in this matter from March 8, 2004. The Notice of the new hearing dates indicated that the new hearing would "proceed peremptory to the party requesting the re-scheduling." On November 10, 2004, Mr. Pollack wrote Mr. Mantella, confirming the adjournment and that interest would not accrue from March 8, 2004 until the hearing Arbitrator released his or her decision. Mr. Pollack also confirmed that Mr. Mantella would be "going forward and obtaining the answers to the various undertakings/productions which were previously given on behalf of your client...."
By letters dated January 4, May 13 and June 9, 2005, Mr. Pollack and his assistant, Ms. Stacey Morrow, advised Mr. Mantella that they were still awaiting the undertakings/productions previously given by Ms. Strzalka, in particular, the WSIB file.
The Commission scheduled another settlement discussion to take place on June 28, 2005. By letter dated June 27, 2005, Ms. Strzalka's new and current counsel, Mr. Carr, advised that, at the settlement discussion, he would be seeking an adjournment of the upcoming hearing. Mr. Carr advised that he had "recently assumed carriage of this file from Andrew Mantella, who is no longer with our firm." Mr. Carr noted that he had an examination for discovery scheduled on the first day of the hearing. Mr. Carr acknowledged the previous adjournments and difficulties on this file. Mr. Carr also acknowledged that "there are essential productions which remain to be provided to the insurer" and that he had "every intention of providing each and every one." Mr. Carr advised that, with Mr. Mantella's departure from the firm, the workload of each of the lawyers at the firm had been "exceptionally higher than normal." Mr. Carr sought an adjournment of approximately four months "in order to have time to provide productions to the other side, and to request certain productions which we may not have in our possession." Mr. Carr advised that he "would further agree to impose upon ourselves a strict timetable for productions" and would "undertake not to ask for any further adjournments for any reason."
On June 28, 2005, after hearing submissions from the parties, the settlement/adjournment Arbitrator denied Ms. Strzalka's adjournment request on the basis that she had "not made reasonable efforts to comply with and has delayed compliance with undertakings respecting disclosure." The Arbitrator cited Rule 72 of the Dispute Resolution Practice Code and Practice Note 9, and found that Ms. Strzalka had "not made arrangements for the timely disclosure of documents relevant to the proceeding," despite the fact that "previous adjournments [had been] given to comply with disclosure provisions." The Arbitrator did "not accept that the change of counsel in or about March 2005 [was] a basis for granting the adjournment" since Ms. Strzalka's former lawyer had "left the firm in or about December 2004" and "the firm had sufficient time to appoint someone to take carriage of the file and prepare for the July hearing which was peremptory to its client." Ms. Strzalka sought an order permitting short service of documents on Coachman. Pursuant to Rules 32.3 and 39.2 of the Practice Code, the Arbitrator ordered that "documents and reports relevant to the issues to be arbitrated and [that] are presently in the care and control of Ms. Strzalka's counsel be served forthwith on counsel for Coachman."
By letter dated June 28, 2005, Mr. Carr confirmed that, in addition to Ms. Strzalka, he intended on calling Dr. Marciniak and Dr. Klodas as witnesses at the hearing. By letter dated June 30, 2005, Mr. Pollack advised that, as he had not received any of the doctors' clinical notes and records, he would be objecting to the doctors being called as witnesses at the hearing.
At the hearing, Mr. Pollack objected to the two doctors testifying, and to the introduction of their clinical notes and records. Mr. Pollack confirmed that Mr. Carr had served the doctors' clinical notes and records on June 30, 2005, along with an OHIP summary of approximately one hundred pages and Ms. Strzalka's WSIB file. However, Mr. Pollack noted a number of deficiencies in the productions he had just received. The production request initially made and agreed to in mid-2003 asked for a decoded OHIP summary from 1993 to date. Mr. Pollack noted that the OHIP summary recently provided to him only covered the period from April 1996 to December 2002. Mr. Pollack had asked for complete clinical notes and records of all medical treatment from various sources. Mr. Pollack noted that the clinical notes and records and the WSIB file were incomplete in that they contained no evidence of the amount Dr. Marciniak charged for his treatment. He also noted that Ms. Strzalka had only provided the clinical notes and records of Dr. Klodas, Dr. Marciniak and Active Therapy, whereas the OHIP summary from 1996 to 2002 showed numerous other doctors. Mr. Pollack had requested other insurance information, but noted that no documents had been provided from Liberty Health, through which Ms. Strzalka had access to other benefits. Mr. Pollack had requested Ms. Strzalka's EI, CPP and welfare files, if any, but noted that none had been produced and he had not been advised as to whether they existed.
Mr. Pollack also noted that, while at least some of Dr. Marciniak's and Dr. Klodas' clinical notes and records had now been served, their credentials had not been provided and they had not prepared a report in accordance with Rule 42 of the Dispute Resolution Practice Code.
Mr. Pollack submitted that Coachman would be significantly prejudiced if the doctors were permitted to testify or if their clinical notes and records were admitted, in light of the seriously deficient productions from Ms. Strzalka and the resulting inability to properly cross-examine both Ms. Strzalka and the two doctors.
Mr. Carr submitted that he was prepared to proceed, but sought an adjournment in order to obtain the outstanding productions, acknowledging that Coachman would be limited in its ability to properly cross-examine Ms. Strzalka's witnesses. Mr. Carr repeated the submissions he made to the adjournment arbitrator on June 28, 2005 concerning the circumstances surrounding Mr. Mantella's departure and the additional workload this created for the other lawyers in the office. Mr. Carr advised that he had received the file in April 2005, and confirmed that he had discussed this case with Mr. Pollack at that time. In his June 14, 2005 letter to Mr. Carr, Mr. Pollack confirmed the April discussion and Mr. Carr's assurances that he would provide the "answers to the undertakings forthwith." At the hearing, Mr. Carr acknowledged that "things had slipped on this file." He acknowledged his own responsibility for the delay between April and July 2005, citing his increased workload and the size of the file. He stated that it was only in the week before the hearing that he discovered that the WSIB documents were in the file and that Dr. Marciniak's clinical notes and records were missing. Mr. Carr submitted that any prejudice to Coachman could be remedied through a further award of suspended interest and costs.
In relation to Mr. Pollack's specific production concerns, Mr. Carr submitted that it was now moot to attempt to obtain the OHIP summary earlier than 1996 (since OHIP would not provide a summary that far back) and that the current summary was probably sufficient (since it pre-dated the major WSIB injury by a year). Mr. Carr also submitted that he could immediately obtain a payment summary from Dr. Marciniak, as well as Dr. Marciniak's and Dr. Klodas' curricula vitae. Mr. Carr advised that he could produce the relevant documents from other treating doctors from three years pre-accident (i.e. from 1995 forward) and that he would immediately send out the appropriate request letters. Mr. Carr also stated that he could obtain the relevant collateral benefit information, the EI, CPP and welfare files, and any outstanding WSIB documents. Mr. Carr confirmed that Ms. Strzalka had applied for CPP benefits.
Mr. Carr stated that, once obtained and reviewed, Dr. Marciniak's clinical notes and records contained several reports. Mr. Carr also stated that Dr. Klodas would simply address Ms. Strzalka's pain and treatment (although he may have prepared a report in March 2002).
Findings
I find that Ms. Strzalka is not entitled to an adjournment of the hearing, that the documents recently served by Ms. Strzalka (namely, Dr. Klodas' and Dr. Marciniak's clinical notes and records, the OHIP summary and the WSIB file) are inadmissible and that Dr. Klodas and Dr. Marciniak ought to be excluded from the hearing.
(i) Is Ms. Strzalka entitled to an adjournment?
Pursuant to Rule 72.4 of the Dispute Resolution Practice Code (the "Code"), an arbitrator has the discretion to grant an adjournment at the request of a party, on such terms as he or she considers just. Under Rule 72.3 of the Code, in determining whether to grant an adjournment, an arbitrator must refer to the Adjournments Policy set out in Practice Note 9 of Section C of the Code. Pursuant to Practice Note 9, adjournments are generally only granted in cases of personal emergencies, for valid reasons relating to the hearing itself (such as medical or other critical evidence that is unavoidably delayed) or where counsel is involved in a continuing trial or other proceeding. Pursuant to Practice Note 9, adjournments are generally refused if they do not fall within the three noted situations and where the basis of the adjournment request is a scheduling conflict; where a party has not made reasonable efforts to comply or has delayed their compliance with pre-hearing orders or undertakings; or where a party has not made early arrangements for further medical examinations, assessments or follow-up or to ensure the availability of documents or the attendance of witnesses. Pursuant to Rule 1 of the Code, the Code is to be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute. Under Rule 3.2 of the Code, Practice Notes are not binding and do not affect the duty of an arbitrator to make decisions on the basis of the circumstances and merits of the case. Pursuant to Rule 81.1(b) of the Code, an arbitrator may, on such terms as he or she considers just, decide that any Rule does not apply in respect of a proceeding.
I find that this case falls squarely within the situations identified in Practice Note 9 in which adjournments will normally be declined, namely, where a party has not made reasonable efforts to comply, or has delayed compliance, with pre-hearing orders or undertakings and where a party has not made early arrangements for further medical follow-up or to ensure the availability of documents. While, pursuant to Rules 1, 3.2 and 81.1(b) of the Code, I have a broad discretion to allow an adjournment despite Practice Note 9, for the following reasons I do not find that the circumstances of this case warrant the exercise of this discretion.
Ms. Strzalka has already been granted two adjournments, the first in March 2004 and the second in November 2004. The second adjournment was peremptory to Ms. Strzalka. Just prior to the current hearing, Ms. Strzalka sought a third adjournment "in order to have time to provide productions to the other side, and to request certain productions which we may not have in our possession." The settlement/adjournment Arbitrator denied this request. Ms. Strzalka renewed her adjournment request at the outset of the hearing, essentially on the same grounds.
I see no basis on which to grant Ms. Strzalka’s most recent adjournment request. I agree with the reasons given by the settlement/adjournment Arbitrator for denying Ms. Strzalka’s third adjournment request. I find that Ms. Strzalka's request does not fall within the three situations set out in Practice Note 9 in which adjournments will normally be granted. Specifically, I do not find that Ms. Strzalka was "unavoidably delayed" in obtaining the required documentation. I find significant that, at no point in this process (from before the pre-hearing conference up to and including the first day of the current hearing, a period of more than two years) did Ms. Strzalka object to the productions sought by Coachman. On the contrary, as recently as June 27, 2005 (roughly five days before the hearing), Mr. Carr acknowledged that there were "essential productions" that had not yet been provided to Coachman and that he had "every intention" of providing these materials.
I find that the delay in responding to Coachman's requests was attributable to counsel's unwarranted failure to request and/or provide the materials in a timely fashion. I find this to be the case both before and after Mr. Mantella's departure from the firm. In my view, the difficulties created for Mr. Carr and his firm by Mr. Mantella's departure do not excuse roughly a year and a half in which Coachman’s repeated production requests were ignored, particularly in light of the fact that two adjournments had already been granted (the second one peremptory to Ms. Strzalka), that Mr. Mantella left the firm roughly seven months before the hearing, that Mr. Carr assumed carriage of the file and promised compliance with Coachman’s production requests roughly three months before the hearing, and that Ms. Strzalka did not seek a further adjournment to satisfy the numerous outstanding production requests until roughly a week before the hearing.
I find significant that some of the requested material was already in Mr. Carr’s possession at the time he assumed carriage of the file, but this only came to light when he reviewed the file just before the most recent settlement/adjournment conference. I also find significant Mr. Carr’s suggestion that the most recent adjournment request was not only to satisfy the Insurer’s outstanding production requests, but to obtain productions that Ms. Strzalka might otherwise use to present her case. Finally, counsel did not appear to take any steps to obtain and/or provide the required documents until after Ms. Strzalka’s most recent adjournment request was denied.
As noted above, Mr. Carr submitted that any prejudice to Coachman arising from another adjournment could be remedied through a further award of costs and suspended interest. Mr. Carr also said that he would immediately request the outstanding productions. He also attempted to maintain that, despite the deficiencies in the OHIP summary just provided (which arose as a result of the noted delays), it was probably sufficient for the purposes of the hearing. In my view, the issue of prejudice in this case is not simply a matter of money. It concerns the right of both parties to an effective, just and expeditious arbitration process. The Code speaks of applying the Rules so as to produce the "most just, quickest and least expensive resolution of the dispute." I find significant that Coachman has dutifully complied with its obligations under the Code and, in fact, had done this prior to the first hearing in March 2004. Mr. Carr has freely acknowledged that Ms. Strzalka’s case has not been pursued in a timely fashion and that Coachman is fully entitled to the productions that have yet to be obtained. Ms. Strzalka has already been granted two adjournments, the second of which was peremptory on her. In these circumstances, I find that granting another adjournment would undermine the goals of effective, just, expeditious and inexpensive dispute resolution.
This is particularly the case since an adjournment at this point would, in many ways, reopen the pre-hearing process. Mr. Carr has proposed to send out request letters to various doctors for notes going back, now, ten years. This could and likely would give rise to a variety of production problems and delays. Mr. Carr also attempted to re-argue the production orders and/or undertakings made by his predecessor almost two years ago. In my view, this is wholly inappropriate and further suggests that an adjournment at this point could easily complicate, rather than simplify, the proceeding. In his initial written request for an adjournment, Mr. Carr stated that he was prepared to accept a "strict timetable for productions" and would undertake not to ask for any further adjournments "for any reason." However, Mr. Carr had already been given a strict timetable, namely, the approaching hearing dates, and these had been extended on two previous occasions. Similarly, the most recent hearing dates were already peremptory to Ms. Strzalka and I would not, and could not, impose the arbitrary condition that a further adjournment would, under no circumstances whatsoever, be granted. I am, therefore, not satisfied that a further adjournment would assist in bringing this matter to a fair and expeditious conclusion.
Finally, I am cognizant of the Court of Appeal decision in Mader v. Hunter et at, 2004 CanLII 17834 (ON CA), [2004] O.J. No. 748 where, having reversed the trial judge's decision to dismiss the plaintiffs claim for failure to comply with undertakings, the Court stated as follows:
The court is always reluctant to dismiss a potentially meritorious claim on grounds that do not address its merits. Unless the defendant can demonstrate prejudice in the sense that to grant the plaintiff the indulgence he or she seeks will prejudice the defendant’s ability to defend the claim, the indulgence will usually be granted on appropriate terms.
In my view, it is essential to consider these comments in the context of the present case. First, the issue currently before me is not whether Ms. Strzalka's arbitration ought to be dismissed, but whether she ought to be granted an adjournment. Secondly, Ms. Strzalka has been represented by counsel throughout, whereas in Mader, the plaintiff’s default occurred while she was unrepresented. Thirdly, while the Court’s decision alludes to the "long history" of that case, it does not indicate (as is the case here) that the plaintiff had already been granted an "indulgence," namely, two adjournments, or that monetary prejudice to the defendant had already been addressed with an award of costs and suspended interest. Fourthly, despite its emphasis on the issue of prejudice, the Court rejected the plaintiff's motion for the admission of fresh evidence on the basis (as is the case here) that "most of the proposed fresh evidence was available, or with reasonable diligence could have been available, before the motion judge." Finally, the Court noted that, following the initial dismissal of her claim and by the time of the appeal hearing, the plaintiff had "fulfilled the majority of the undertakings." As discussed more below, in the present case, Ms. Strzalka has yet to fulfill a number of important undertakings (despite being given two additional opportunities to do so) and the materials she has now provided have given rise to a variety of new undertakings and production issues.
In this context, I find that Ms. Strzalka is not entitled to the further "indulgence" of an adjournment. In my view, Mader does not stand for the proposition that, as long as an insurer is compensated financially, an applicant is entitled to an indefinite number of adjournments or other indulgences. The integrity of the process is still important and, therefore, an applicant's adjournment request must still be considered in light of the proceeding as a whole, having regard to any previous adjournments, the terms of those adjournments and the applicant's efforts to rectify the underlying problem. As the Court of Appeal suggested, this last issue involves a consideration of the reasonableness of the applicant's actions, quite apart from the potential prejudice to the insurer.
Regarding the issue of prejudice, I find that, due to delay, the Insurer in this case has already been denied access to potentially significant documents, including an OHIP summary preceding 1996, the medical records that may have arisen from that information and the records of those physicians from the current OHIP summary whose records may no longer be available. Given the volume of material yet to be gathered by Ms. Strzalka, and the strict timelines proposed by Mr. Carr, the Insurer may still not receive and/or be able to properly investigate the new information. In my view, neither party should be put in the position of having to request yet another adjournment on the basis of difficulties in now pursuing material that was available, or could reasonably have been available, in the early stages of this proceeding. I also find that it would be unfair to grant Ms. Strzalka an adjournment (as suggested by Mr. Carr) to have the time to gather more information to be used in presenting her own case. I note that, in Mader, the Court excluded new material that was already in the plaintiff's possession, let alone material that she might have gathered after the appeal in order to support her own case.
Therefore, given the two previous adjournments (the latter being peremptory to Ms. Strzalka), the fact that the Insurer has already been awarded costs and suspended interest, the denial of Ms. Strzalka's third adjournment request, the fact that Ms. Strzalka has been represented by counsel throughout, the unwarranted and continuing delay in requesting and/or providing the requested productions, the potential prejudice to Coachman, the attempt to use the adjournment to seek documents for her own case and the need to maintain the integrity of the arbitration process, I conclude that Ms. Strzalka is not entitled to a further adjournment.
(ii) Are the documents recently served by Ms. Strzalka admissible?
Pursuant to Rule 32.3 of the Dispute Resolution Practice Code, subject to Rule 39, an arbitrator can order the production of documents relevant to the issues in an arbitration, on such terms as he or she considers appropriate. Pursuant to Rule 34.1 of the Code, where a party fails to produce documents in compliance with an order or agreement, an arbitrator may award or deny a party expenses, exclude a document filed, impose a new timetable for compliance, draw an adverse inference against a party or make another order as appears to be just. Pursuant to Rule 39.1 of the Code, subject to Rule 39.2, all documents to be introduced at a hearing must be served on the other party at least 30 days before the first day of the hearing. Pursuant to Rule 39.2, in extraordinary circumstances, an arbitrator may grant a party permission to serve a document on the other party for use at a hearing less than 30 days before the first day of the hearing. Pursuant to Rule 39.3, the hearing arbitrator will determine the relevance, materiality and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception. As noted previously, pursuant to Rules 1 and 81.1(b), the Code is to be interpreted broadly to produce the most just, quickest and least expensive resolution of the dispute, and an arbitrator can, on appropriate terms, decide that a Rule does not apply in respect of a proceeding.
Despite the previous adjournments, Ms. Strzalka, through her counsel, failed to produce any of the materials requested by Coachman and agreed to between the parties, prior to 30 days before the hearing. Approximately a week before the hearing, Mr. Carr brought a motion for an adjournment. The settlement/adjournment Arbitrator denied this request. However, pursuant to Rules 32.3 and 39.2 of the Code, the Arbitrator granted Mr. Carr's request for an Order for short service of the materials relevant to the issues in the arbitration and presently in his possession. In the current proceeding, counsel advised that the Arbitrator declined to address the issue of the admissibility of these documents at the hearing. On the day before the hearing, and having served the relevant materials on Mr. Pollack, Mr. Carr sought a resumption before the settlement/ adjournment Arbitrator, on the basis that Mr. Pollack objected to Drs. Klodas and Marciniak being called as witnesses at the hearing. Through the Case Administrator on this file, the Arbitrator advised the parties that she would not resume the matter as she could not "bind the discretion of the hearing arbitrator" and the issue could be "heard...at the commencement of the hearing." At the outset of the hearing, Mr. Pollack sought to have the witnesses and the documents recently served by Mr. Carr excluded from the hearing.
I find that the documents recently served by Mr. Carr are inadmissible. While the settlement/adjournment Arbitrator invoked Rules 32.3 and 39.2 of the Code, I find that she did not deal with the admissibility of either the documents or the two doctors' testimony. For the following reasons, I find that the Arbitrator only invoked the noted Rules to allow for short service on Coachman of the relevant documents, not to determine the admissibility of those documents at the hearing.
Counsel advised that the Arbitrator would not entertain submissions on the admissibility of the documents that were the subject of her Order for short service. The Arbitrator further declined to entertain a resumption on the exclusion of the medical witnesses on the basis that this was ultimately within the discretion of the hearing arbitrator.
Regarding the Arbitrator's specific Order, it only stated that the documents "relevant to the issues to be arbitrated" were to be "served forthwith," not that they were to be admitted for the purposes of the hearing. Further, the Arbitrator's reasons for denying Mr. Carr's adjournment request suggest that "extraordinary circumstances" did not exist for allowing the admission of the disputed documents, despite their late service. In my view, the Arbitrator could not have definitively determined the issue of admissibility without either viewing, or having a fuller appreciation of, the documents that were to be served.
Regarding the general meaning of the applicable Rules, Rule 39.2 speaks of short service of documents "for use at a hearing." In my view, this can, but does not necessarily, mean short service and admission of the documents at the hearing. Pursuant to the opening phrase of Rule 39.3 ("The hearing arbitrator will determine the relevance, materiality and admissibility of evidence submitted at the hearing"), the hearing arbitrator retains the jurisdiction to determine the admissibility of documents submitted at the hearing, whether those documents were served pursuant to an Order under Rule 39.2 or in compliance with Rule 39.1. Pursuant to Rule 39.3(c), a hearing arbitrator must exclude evidence not served in accordance with Rule 39.2 (unless extraordinary circumstances exist), but is not required to admit evidence simply on the basis that it was served in accordance with Rule 39.2. I note, as well, Practice Note 4 on the Exchange of Documents which states that the "pre-hearing arbitrator has the final say on what documents must be produced or exchanged prior to the hearing" but that the "hearing arbitrator has the final say on what documents will be considered during the hearing" (emphasis in original). In my view, the hearing arbitrator retains the discretion to determine the admissibility of documents submitted at the hearing.
I, therefore, find that, as the arbitrator charged with the responsibility of determining the merits of this case, I must determine the issue of admissibility having regard to the parties' interaction prior to the hearing, the nature of the documents ultimately served, and whether the circumstances exist to admit the disputed documents at this stage of the proceedings (bearing in mind the Court of Appeal’s question in Mader as to whether granting the indulgence sought will prejudice the respondent's ability to defend the claim).
As noted above, despite repeated requests by Coachman and two previous adjournments, spanning more than two years, Ms. Strzalka failed to produce any of the relevant documents until one to two business days prior to the current hearing, and only after a third adjournment request had been denied. Ms. Strzalka had never disputed the relevance of the requested materials and, in fact, recently acknowledged that "essential productions" remained outstanding.
The materials produced just prior to the hearing were basic documents normally obtained at the outset of the proceeding, namely, the OHIP summary and the clinical notes and records of the family and treating physicians. Mr. Carr also provided Ms. Strzalka's WSIB file. There are a number of problems with these materials. They are, in themselves, incomplete (failing to contain basic financial information concerning the disputed treatment, and not covering the full period stipulated). They only form part of the requested materials (leaving undisclosed collateral benefit and medical information from various sources). They create various new questions about the nature and extent of Ms. Strzalka's pre- and post-accident medical treatment (given the size and scope of the OHIP summary now produced). As Mr. Carr indicated both prior to and during the hearing, there are essential productions that ought to have been produced, that remain to be produced and that he is prepared to produce.
In my view, the circumstances of this case do not warrant admitting the disputed documents at this stage of the proceedings. As noted in relation to Mr. Carr's adjournment request, I do not find that the circumstances preceding or following Mr. Mantella's departure justify the delay in requesting and/or providing the relevant documents. This is not a situation in which most, or even some, of the documents had been produced prior to 30 days before the hearing. Nothing had been produced until immediately prior to the hearing. Then, the documents that were produced were deficient in a number of respects. Contrary to bringing this matter to a head, the documents provided effectively reopened the production process, potentially involving a whole series of new requests, responses and investigations. In these circumstances, I find that the documents provided by Ms. Strzalka are inadmissible.
I further reach this conclusion on the basis of prejudice to both the Insurer and to the hearing process in this particular case. Given the documents produced, Coachman has been denied access to a variety of potentially significant medical and financial information. This is not a situation where only a small amount of peripheral material has yet to be produced. A wide variety of documents from various sources going directly to the issues at hand remains outstanding. Mr. Carr has acknowledged the importance of the information sought and the fact that Coachman’s ability to respond to Ms. Strzalka's case will be limited in its absence. In these circumstances, I find that it would not be sufficient to simply admit the current documents and state that an adverse inference will be drawn in respect of the missing materials. This would involve significant speculation as to the relative merits of the parties' cases, since Coachman would have been denied the opportunity to properly test Ms. Strzalka's evidence and since such a large amount of material would yet to have been produced and/or investigated. In my view, therefore, admitting only those documents recently served by Ms. Strzalka would prejudice the Insurer’s ability to respond to the case and undermine the just and effective adjudication of the matter.
I, therefore, conclude that the materials recently served by Ms. Strzalka are inadmissible.
(iii) Should Drs. Klodas and Marciniak be excluded from the hearing?
Pursuant to Rule 41.1 of the Dispute Resolution Practice Code, a party must advise the other parties of the names of proposed witnesses, at least 30 days before the first day of the hearing. Under Rule 41.3 of the Code, an arbitrator may excuse a witness from attending at the hearing if the witness was not identified at the pre-hearing conference or make such other order as the arbitrator considers just. Pursuant to Rule 42, if a party intends to introduce an expert's report, the party must provide the full name and qualifications of the expert along with the report. Under Rule 42.2, if a party intends to call an expert witness, the party must serve and file a document setting out the full name, address and qualifications of the expert, the subject matter of the expert's testimony and the substance of the facts and opinion which the expert will present. Rule 42.2 also indicates that the time lines and requirements of Rules 39 and 41 (regarding the service, notice and admissibility of evidence and witnesses) apply. Pursuant to Rule 42.3 of the Code, where a party does not comply with the noted requirements, an arbitrator may exclude a witness from the hearing or make such other order as the arbitrator considers just. Under Rule 73.5, an arbitrator may excuse a witness from the hearing where a Summons to Witness has not been served in accordance with Rule 73.3 (regarding the proper form of the summons). Pursuant to Rule 73.4, a Summons to Witness must be served at least five business days before the first day of the hearing, or within such shorter time as an arbitrator considers just. And, again, under Rules 1 and 81.1(b), the Code is to be interpreted broadly to produce the most just, quickest and least expensive resolution of the dispute, and an arbitrator can, on appropriate terms, decide that a Rule does not apply in respect of a proceeding.
At the pre-hearing conference in July 2003, Ms. Strzalka's previous counsel, Mr. Mantella, advised Coachman that he intended on calling Dr. Klodas and Dr. Marciniak, among others, as witnesses at the hearing. The pre-hearing Arbitrator confirmed this in her July 17, 2003 pre-hearing letter. It was not until two years later (in his letter of June 27, 2005 requesting an adjournment of the upcoming hearing) that Ms. Strzalka's new counsel, Mr. Carr, alluded to the fact that Ms. Strzalka's "treating chiropractor" had "treated Ms. Strzalka prior to the accident", and that the chiropractor had advised that he was "willing to testify regarding his treatment plan" and to the fact that the "treatment...was due to new injuries from [Ms. Strzalka's]...accident and an exacerbation of old injuries." By letter dated June 28, 2005 (roughly a week before the hearing), Mr. Carr confirmed that, in addition to Ms. Strzalka, he intended on calling Drs. Marciniak and Klodas as witnesses at the hearing. Mr. Carr did not serve Dr. Marciniak's or Dr. Klodas' clinical notes and records until late on June 30th, just prior to a long weekend and just over one business day prior to the hearing. Mr. Carr did not serve a Summons to Witness on either of the doctors until the afternoon of June 30th. The sections in the summonses for a signature and date from the Financial Services Commission of Ontario, Office of the Registrar, were blank. At the top of each summons is the following:
This summons must be served at least 5 business days before the first day of the hearing set out below. An adjudicator may order a shorter period of time for service. If so, a copy of the order setting out the shorter time for service must be served with this summons.
Neither summons included a copy of an Order for service within five business days of the hearing.
By letter dated July 4, 2005, Mr. Carr sought an urgent reconvening of the pre-hearing before the settlement/adjournment Arbitrator since Mr. Pollack had reiterated his objection to Drs. Klodas and Marciniak testifying at the hearing. Mr. Carr stated that it was "crucial that these two doctors testify," that "to bar them would result in a near automatic loss for [his] client" and that they were the "two treating doctors most relevant to a determination of whether the treatment plans in question are reasonable and necessary...." Mr. Carr offered to consent to a further adjournment of the hearing in the event counsel for the Insurer wanted "more time to review the record before the hearing." As noted above, the settlement/adjournment Arbitrator deferred to the hearing Arbitrator the issue of whether to allow the two doctors to testify. At the hearing, Mr. Pollack confirmed his request to have Drs. Klodas and Marciniak excluded from the hearing.
For the following procedural and substantive reasons, I find that the two doctors should be excluded from the hearing. Ms. Strzalka, through her previous counsel, identified the two doctors at the initial pre-hearing conference. However, in the particular circumstances of this case, namely, that two years had passed until the hearing actually commenced (with two adjournments and repeated production requests still outstanding), I find it reasonable for Ms. Strzalka to have been required to restate her proposed witnesses prior to 30 days before the current hearing, just as Mr. Carr did after the third adjournment request had been denied, approximately a week before the beginning of the hearing. However, if the notice at the initial pre-hearing conference was sufficient, Ms. Strzalka failed to provide the two doctors curricula vitae (at any time prior to the hearing) in accordance with Rule 42.2 of the Code, which would have been important for the proper examination and cross-examination of the doctors.
I further find the summonses served on the two doctors to have been nullities, given that they had not been signed by a representative of the Commission and had not been served at least five days before the hearing (particularly in the absence of any evidence that the doctors had been notified of the intention to call them at least 30 days before the hearing, in accordance with Rules 41.2 and 41.3 of the Code). I note that while the settlement/adjournment Arbitrator had granted Mr. Carr's request for short service of the doctors' clinical notes and records, no request had been made or granted in respect of the short service of the summonses. While there is no indication that the witnesses were unwilling to testify and while not determinative in themselves, given the pattern of non-compliance in this case, I find the defects in the summonses to be relevant to the ultimate determination of whether to exclude the doctors from the hearing.
I have, of course, excluded the clinical notes and records of the two doctors, and, therefore, on this basis alone, and pursuant to Rule 42.2 (requiring documentary disclosure of the substance of a witness' proposed testimony), I find that the doctors ought to be excluded from the hearing. However, I also find the reasons for the exclusion of the documents recently served by Ms. Strzalka to be relevant to the issue of whether to preclude the doctors from testifying at the hearing.
Mr. Carr indicated that having the two doctors testify was vital for Ms. Strzalka's case. In my view, it is precisely because of the importance of these two witnesses and their supporting documentation that counsel ought to, and could, have arranged for timely notice and disclosure to the Insurer. While Mr. Carr offered to consent to a further adjournment should the Insurer wish more time to review the record, in my view, the Insurer should not be put in the position of having to request (or to accept) a further adjournment, given its faithful compliance, and the Applicant's significant non-compliance, with the relevant notice and production requirements (particularly in light of the denial of the Applicant’s third and fourth adjournment requests). Given the nature and extent of the materials yet to be produced, I find that allowing the doctors to testify would compromise both the Insurer's ability to respond to Ms. Strzalka's arbitration and the fair and effective adjudication of this case. As noted previously, the Insurer has been denied access to a variety of potentially significant medical and financial information, and, as acknowledged by Mr. Carr, this will limit their ability to properly cross-examine the two doctors. In these circumstances, simply allowing the doctors to testify and stating that an adverse inference will be drawn is not an adequate remedy. Proceeding only on the basis of the Applicant's current productions would involve significant speculation as to both the particular weight to be attributed to the doctors testimony and as to the general merits of the parties' respective cases.
Therefore, in all of the circumstances, I conclude that Drs. Klodas and Marciniak ought to be excluded from the hearing.
(iv) Should Ms. Strzalka’s arbitration be stayed pending her appeal of these rulings?
Given the above conclusions, and the effect they would have on Ms. Strzalka's ability to maintain her arbitration, Ms. Strzalka sought a stay of the proceeding pending an appeal of my rulings. Upon hearing submissions from counsel, I granted Ms. Strzalka's request.
Pursuant to Rule 50 of the Dispute Resolution Practice Code, a party may appeal an arbitrator's order only on a question of law, an appeal is not permitted on preliminary orders unless otherwise ordered by the Director, and an appeal does not stop an arbitration order from taking effect, unless the Director orders otherwise. Pursuant to section 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the "SPPA"), an appeal from a decision of a tribunal to an appellate body operates as a stay in the matter unless the tribunal or appellate body orders otherwise.
I agree with Ms. Strzalka that my rulings will have a significant impact on her arbitration. In my view, it would not be productive to proceed with the balance of the arbitration if, after a decision on the merits, an appeal decision might find that the case ought to have been adjourned or that the evidence should have included either the documents Ms. Strzalka recently served or the testimony of Drs. Klodas and Marciniak or both. Further, Rule 50 of the Code and section 25(1) of the SPPA suggest that it is ultimately the Director’s decision as to whether this arbitration ought to proceed on the basis of the procedural rulings as they now stand.
I am, therefore, prepared to stay this arbitration pending the Director's consideration of whether the noted procedural rulings can be appealed and pending the outcome of any appeal.
EXPENSES:
I will reserve my decision on the issue of expenses pending the completion of any appeal.
January 13, 2006
Eban Bayefsky
Arbitrator
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 6
FSCO A03-000366
BETWEEN:
MYRA STRZALKA
Applicant
and
COACHMAN 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:
Ms. Strzalka is not entitled to an adjournment of the hearing.
The documents recently served by Ms. Strzalka are inadmissible.
Drs. Klodas and Marciniak are excluded from the hearing.
Ms. Strzalka’s arbitration is stayed pending the outcome of her appeal of the rulings on issues 1 to 3.
January 13, 2006
Eban Bayefsky
Arbitrator