Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 76

FSCO A05-000496

BETWEEN:

GREGORY SMIRIN

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

DECISION TO ADJOURN THE PRELIMINARY ISSUE HEARING

Before:

David Leitch

Heard:

May 11, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ms. Dimple Verma for Mr. Smirin

Mr. Brian Evoy-Smith for ING Insurance Company of Canada

Issues:

The Applicant, Gregory Smirin, claims to have been injured in a motor vehicle accident on March 19, 2003. He applied for accident benefits payable under the Schedule¹ from ING Insurance Company of Canada ("ING"). ING did not dispute the happening of an accident on March 19, 2003 but denied that Mr. Smirin was involved or injured in that accident. The parties were unable to resolve this dispute through mediation and a preliminary issue hearing was scheduled before the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

As scheduled, the preliminary issue hearing commenced on May 11, 2006. After hearing opening statements from Ms. Verma and Mr. Evoy-Smith, I decided to adjourn the hearing. This adjournment was not requested by either party but was, in my opinion, required for the following reasons.

Ms. Verma stated in her opening that Mr. Smirin sustained injuries in the accident of March 19, 2003 because he was a passenger in a vehicle involved in that accident. The parties appeared to agree that the vehicle in question was operated by a Mr. Rajaratnam Kandiah but they disagreed about whether Smirin was a passenger. Mr. Evoy-Smith indicated in his opening that statements obtained from Mr. Kandiah confirmed the presence of a passenger in the vehicle at the time of the accident but not Mr. Smirin.

The adjournment was required because Ms. Verma intended to rely upon an Affidavit dated May 9, 2006 which named her as the source of the deponent's knowledge and belief. At paragraphs 7 and 10 of the Affidavit, the deponent, a student-at-law in Ms. Verma's law firm, referred to one or more conversations Ms. Verma apparently had with Mr. Kandiah in which he identified the passenger as someone other than Mr. Smirin. Paragraph 8 of the Affidavit referred to another statement given by Mr. Kandiah to "the insurer's representative" without excluding the possibility that Ms. Verma was the source of the deponent's knowledge of this statement.

Mr. Evoy-Smith did not object to this Affidavit being entered as evidence. On the contrary, he stated his intention to call as a witness an independent investigator hired by ING who was apparently also told by Mr. Kandiah that the passenger in the vehicle at the time of the accident was someone other than Mr. Smirin.

Still, while Mr. Kandiah's statements apparently always identified the passenger as being someone other than Mr. Smirin, they also apparently failed to identify the passenger in a consistent manner. In the statement Mr. Kandiah apparently gave to the insurer's representative, the passenger was identified as his father; in the statement he apparently gave to Ms. Verma, the passenger was identified as his brother and in the statement he apparently gave to the independent adjuster, the passenger was identified as his uncle.

It was, of course, open to Ms. Verma to attack Mr. Kandiah's credibility by pointing to these inconsistencies. However, in order to establish at least one of these inconsistencies, Ms. Verma would have had to rely on the paragraphs of the Affidavit referred to above. These paragraphs, in turn, did or may have relied on information Ms. Verma supplied to the deponent of the Affidavit. Moreover, Mr. Kandiah was not present at the hearing on May 11, 2006 to explain these inconsistencies, despite the unsuccessful attempts to serve him with a summons as also explained in the Affidavit.

Rule 4.02 of the Rules of Professional Conduct deals with the ethical question of "The Lawyer as Witness". Subsections (1) and (2) of the Rule and the accompanying commentary read as follows:

4.02 (1) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not submit his or her own affidavit to the tribunal.

Submission of Testimony 4.02 (2) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.

Commentary

A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

I acknowledge the following: Ms. Verma is not the deponent of the Affidavit in question; the Rule recognizes my discretion to waive it; the hearing, or my deliberations following the hearing, may have evolved in a manner which avoided the problem created by the offending paragraphs of the Affidavit; no reason was suggested to doubt the credibility of Ms. Verma.

Nevertheless, the question of whether an applicant was injured in an accident goes to the heart of FSCO adjudicative functions. The preliminary issue in this case is also of singular importance to the parties. If Mr. Smirin was injured in a motor vehicle accident, he is entitled to claim statutory accident benefits. If he was not injured in a motor vehicle accident, he has no entitlement to statutory accident benefits. In my view, the hearing to determine this issue must be conducted in a manner which cannot later be questioned or challenged on ethical grounds. The hearing will, therefore, be adjourned to permit Ms. Verma to comply with the requirements of Rule 4.02 of the Rules of Professional Conduct by entrusting the conduct of this preliminary issue hearing to another lawyer.

EXPENSES:

It was agreed that ING is entitled to its expenses thrown away as a result of the adjournment to be agreed upon or assessed.

May 12, 2006

David Leitch Arbitrator

Date