Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 160
FSCO A04-000077
BETWEEN:
JOHN SEVERIANO Applicant
and
TTC INSURANCE COMPANY LIMITED Insurer
PRE-HEARING DECISION
Before: Eban Bayefsky
Heard: June 1, 2007, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario. Written submissions were received by July 13, 2007.
Appearances: Carolyn Amendola for Mr. Severiano Karen McGuire for TTC Insurance Company Limited
Issues:
The Applicant, John Severiano, was injured in a motor vehicle accident on July 12, 2001. He applied for and received statutory accident benefits from TTC Insurance Company Limited (the “TTC”), payable under the Schedule.1 The TTC denied Mr. Severiano’s claim for income replacement benefits beyond May 29, 2002. The parties were unable to resolve their disputes through mediation, and Mr. Severiano applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The Commission initially conducted a pre-hearing conference in this matter on April 13, 2005.
In the April 15, 2005 pre-hearing letter, the pre-hearing arbitrator indicated, in part, as follows:
Issues at the Arbitration Hearing:
The issues in dispute were identified and agreed to as follows:
- Is Mr. Severiano entitled to receive a weekly income replacement benefit beyond May 29, 2002, pursuant to section 4 of the Schedule? The parties agree that $400 is the correct amount of any weekly income replacement benefits to which Mr. Severiano is entitled.
The hearing commenced the week of September 18, 2006 before Arbitrator Allen (as she then was). Arbitrator Allen dealt with a number of procedural matters and began to hear Mr. Severiano’s testimony. It was apparent that the arbitration would require several more hearing days, which were subsequently scheduled for July 23-26 and October 15-18, 2007. Prior to the resumption of the hearing, Arbitrator Allen was appointed to the bench, after which the Commission advised the parties that it would appoint a new arbitrator to conduct the hearing. The Commission also scheduled a resumption of the pre-hearing conference before me for June 1, 2007. In the meantime, the TTC brought a motion for an order permitting the use of the transcript from the initial hearing at the new hearing (which was to be before Arbitrator Muir). Arbitrator Muir began to hear this motion on May 17, 2007, at which time the parties agreed to complete the matter by way of written submissions (to be received by July 13, 2007). That matter has yet to be determined.
The pre-hearing conference resumed before me on June 1, 2007. In my pre-hearing letter of June 12, 2007, I stated as follows:
The hearing was scheduled for October 15-18, 2007, April 21-24, 2008 and April 28-May 1, 2008, at 10:00 a.m., at the offices of the Financial Services Commission of Ontario in Toronto.
Based on the initial pre-hearing letter of April 15, 2005, the issues currently set for the arbitration are Mr. Severiano’s entitlement to income replacement benefits beyond May 29, 2002, at the agreed rate of $400 per week, a special award and interest, as well as each party’s entitlement to their expenses of the arbitration. Ms. Amendola indicated that she did not have any issues to add to the arbitration at this time.
Ms. McGuire indicated that she wished to raise the issue of the quantum of Mr. Severiano’s income replacement benefits, based on information that came to her attention shortly before the commencement of the initial hearing before Arbitrator Allen. Ms. Amendola objected to the addition of this issue to the arbitration. The parties agreed to provide each other and the Commission with written submissions by the following dates, on whether to add the issue of quantum: Ms. McGuire’s submissions by June 15, 2007; Ms. Amendola’s submissions by June 29, 2007. Specifically, Ms. McGuire agreed to provide particulars of the quantum issue, how the information she has might affect the calculation of Mr. Severiano’s IRBs and the basis upon which this issue can now be raised.
Regarding witnesses for the hearing, Ms. Amendola indicated that she had no one to add to the list she provided in her letter of October 11, 2006. Ms. McGuire indicated that she wished to add two individuals to the witnesses identified at the initial hearing before Arbitrator Allen, namely, someone from the Laborers’ International Union of North America, Local 183, and someone from Dom-Meridian Construction.
Regarding productions, Ms. McGuire confirmed her request for the documents identified in her letters of January 31 and February 6, 2007 (except for the clinical notes and records of Dr. Toby Levinson, since Ms. Amendola indicated that she did not intend on calling Dr. Levinson as a witness). Ms. McGuire will set out the basis of her request for these items in the written submissions she provides by June 15, 2007. Ms. Amendola will provide her response to these requests in the written submissions she provides by June 29, 2007.
Ms. McGuire provided her submissions on June 15, 2007. Ms. Amendola sought an extension for providing her submissions, to July 13, 2007, due to illness. I granted this request. Ms. Amendola provided her submissions on July 13, 2007. Ms. McGuire provided reply submissions on August 2, 2007; however, as the parties had not agreed to proceed in this manner, I did not consider these additional submissions.
The issues are:
Is the TTC entitled to add the issue of the quantum of Mr. Severiano’s income replacement benefits to the arbitration?
Is the TTC entitled to production of the clinical notes and records of Dr. Fiorini, Men’s Withdrawal Management Centre – Addiction Services (Hamilton Health Sciences), Ozanam House, and the Centre for Addiction and Mental Health?
Is the TTC entitled to production of Mr. Severiano’s hiring hall, disability insurance and extended health records for the three years prior to the July 12, 2001 accident?
Is the TTC entitled to production of the pre-accident clinical notes and records of Dr. Frederick Samuel Harris, Dr. Daniel Wong and Dr. Roland Wong?
Result:
The TTC is not entitled to add the issue of the quantum of Mr. Severiano’s income replacement benefits to the arbitration.
The TTC is not entitled to production of the clinical notes and records of Dr. Fiorini, Men’s Withdrawal Management Centre – Addiction Services (Hamilton Health Sciences), Ozanam House, or the Centre for Addiction and Mental Health.
The TTC is not entitled to production of Mr. Severiano’s hiring hall, disability insurance or extended health records for the three years prior to the July 12, 2001 accident.
The TTC is not, at this time, entitled to production of the pre-accident clinical notes and records of Dr. Frederick Samuel Harris, Dr. Daniel Wong or Dr. Roland Wong.
EVIDENCE AND ANALYSIS:
Issue 1: Adding the Issue of Quantum
Pursuant to section 282(3) of the Insurance Act, an arbitrator is required to “determine all issues in dispute whether the issues are raised by the insured person or the insurer.” Pursuant to Rule 33.1 of the Dispute Resolution Practice Code, pre-hearing discussions are to be held, in part, to assist the parties in preparing for an arbitration by “(a) identifying and obtaining agreement as to the issues for arbitration…(d) dealing with procedural and preliminary issues…and (h) dealing with any other matters that the arbitrator considers appropriate.”
A number of arbitration decisions note that a dispute can evolve as it proceeds through the different stages of the dispute resolution process.2 The factors to be considered in determining whether to allow a party to alter its position on the issues to be arbitrated include the timing of the request, the reason for any delay, whether the matter has been mediated, the nature of the amendment, prejudice to the other party and whether the change will unduly delay, expand or complicate the proceeding.
Ms. McGuire maintained that she only became aware of the issue of quantum in August 2006, shortly before the initial hearing and after she assumed carriage of the file from another lawyer in her office. She indicated that she was “not in a position to add the quantum of income replacement benefits as an issue so late in the proceedings and it would likely not have been allowed.” Ms. McGuire submitted that “we are now recommencing our arbitration afresh.” She stated that Mr. Severiano would not be prejudiced by adding the issue of quantum as Ms. Amendola would have sufficient time to prepare, and the new issue would only involve the addition of one witness to either explain or confirm Mr. Severiano’s wage record.
Ms. Amendola submitted that the TTC and, specifically, Ms. McGuire, had had ample opportunity to raise the issue of quantum prior to the initial hearing, but chose not do so. Ms. Amendola maintained that the addition of the quantum issue would be highly prejudicial to Mr. Severiano as he would have to prepare not only for this issue, but the issues of overpayment, repayment and interest as well. Ms. Amendola submitted that these issues would require additional witnesses and would lengthen an already complex case. Ms. Amendola argued that the documentary evidence provided by Ms. McGuire did not support adding the issue of quantum and amounted to an attempt to “gain some advantage…by compelling the Applicant to shift the direction of his case….” Finally, Ms. Amendola submitted that, should the issue of quantum be added to the arbitration, an order be made requiring the TTC to pay Mr. Severiano his costs in preparing for the new issue, regardless of the outcome of the arbitration.
I find that the TTC is not entitled to add the issue of quantum to this arbitration. The TTC has not mediated this issue. In any event, at the initial pre-hearing conference in April 2005, the TTC agreed to the quantum of any income replacement benefits to be paid to Mr. Severiano. The TTC now seeks to resile from, or at least to disregard, that agreement, not on the basis of any conduct on Mr. Severiano’s part, but on the basis of Arbitrator Allen’s departure from the Commission and her inability to carry on with the balance of the hearing. I find that the TTC was fully capable of raising the issue of quantum earlier in this proceeding, but at the very least, before Arbitrator Allen. As suggested in its submissions, the TTC was aware of the quantum issue prior to the initial hearing, as well as the potential difficulty in raising it at that point, and chose not to pursue it. I do not find the fact that the TTC transferred carriage of its file to Ms. McGuire shortly before the initial hearing (having earlier transferred the file between other lawyers in its office), the fact that Ms. McGuire was then required to review a significant number of documents, and the fact that she subsequently determined that quantum might be an issue in this matter, to be sufficient reason either for the TTC not to have raised the issue of quantum prior to or at the initial hearing, or to resile from the agreement on quantum it entered into at the initial pre-hearing conference.
I do not agree with the TTC’s position that the arbitration has “recommenced afresh.” It is true that the hearing is to begin again before a new arbitrator. This does not mean that everything prior to, and during, the initial hearing before Arbitrator Allen is irrelevant. On the contrary, the issues identified at the initial pre-hearing conference, and the witnesses identified in the context of the first hearing, have been confirmed for the new hearing, and the TTC’s current submissions are replete with references to the testimony Mr. Severiano gave before Arbitrator Allen. In fact, the TTC has recently brought a motion for an order permitting it to use the transcript of the initial hearing at the new hearing before Arbitrator Muir. As indicated in his May 17, 2007 correspondence to the parties, Arbitrator Muir may be determining the extent to which the transcript can be used, in the course of the upcoming hearing. In my view, therefore, the proceedings to date are still very much relevant, and, in the absence of a reasonable basis to re-open the issues for the arbitration, I find that the TTC should not be permitted to raise the matter of quantum simply on the basis that Arbitrator Allen was unable to complete the hearing.
The TTC’s submissions suggest that there would be a modest difference (of roughly $36 per week) in the calculation of income replacement benefits from that agreed to at the initial pre-hearing conference. Even if this were a legitimate issue for the upcoming hearing, I am not satisfied, as suggested by the TTC, that addressing that issue would be a simple matter, requiring only “one brief witness.” If, as indicated by the TTC, this case involves a significant number of documents bearing on Mr. Severiano’s pre-accident employment situation and post-accident medical condition, and if, as is suggested, credibility is a significant issue in this matter, I find that adding the issue of quantum may very well substantially delay, expand or complicate an already lengthy and complex proceeding. I find that this would prejudice Mr. Severiano, particularly in light of the modest difference in quantum presently suggested by the TTC.
Finally, I find it unnecessary to consider whether Mr. Severiano could be compensated with an order for costs. In my view, this issue only arises if the TTC is otherwise entitled to raise the issue of quantum. However, as indicated, there are a number of reasons related to the prior conduct of this proceeding, as well as to the new hearing, that suggest that the TTC ought not to be permitted to raise the issue of quantum at this point, regardless of whether Mr. Severiano could be compensated for the additional time required in preparing for the issue of quantum.
For all of these reasons, I find that the TTC is not entitled to add the issue of quantum to the arbitration.
Issue 2: Productions
As indicated in my June 12, 2007 pre-hearing letter, Ms. McGuire was to set out the basis for her request for the documents identified in the TTC’s letters of January 31 and February 6, 2007. However, in her submissions, Ms. McGuire simply restated these requests and indicated that “we have not had a reply.” In these circumstances, I am not prepared to order the production of these documents.
Ms. McGuire made a number of other production requests, in addition to those she raised at the pre-hearing and that she was to address in her written submissions. Ms. McGuire noted her intention to call a representative from LIUNA, Local 183, regarding Mr. Severiano’s pre-accident employment and disability claims history, and “in preparation for the testimony of such witness,” Ms. McGuire asked whether Ms. Amendola would be “prepared to request the hiring hall, disability insurance and extended health records for Mr. Severiano in the three years prior to the date of the accident (July 12, 2001).” Ms. McGuire also requested the pre-accident clinical notes and records of Drs. Frederick Samuel Harris, Daniel Wong and Roland Wong on the basis that they were relevant to his pre-accident medical condition and to how the July 2001 motor vehicle accident affected him. Ms. McGuire also stated that production of these records would “likely obviate any need to call Drs. Wong and Harris as possible rebuttal witnesses in relation to the applicant’s testimony about his pre-accident health.”
For the following reasons, I find that the TTC is not entitled to the pre-accident employment records and is not, at this time, entitled to the medical documents requested. The current requests were not raised at the pre-hearing and, therefore, were not matters to be addressed in the written submissions agreed to be provided by the parties. The TTC has already decided to call a witness from LIUNA, Local 183; in this context, it is not a sufficient basis for disclosure to simply state that the requested documents are related to the “preparation for the testimony of such witness.” The new request for medical documents is based to a large extent on a decoded OHIP summary provided by Mr. Severiano in 2005; the TTC did not explain why these materials were not requested before the initial hearing in September 2006. In my view, the mere fact that Arbitrator Allen was unable to complete the hearing is not a sufficient basis to revisit this matter. The TTC also based its new request for clinical notes and records on Mr. Severiano’s testimony at the initial hearing. The extent to which this evidence is to be used in the new hearing remains to be determined. In this context, I agree with Ms. Amendola that the medical productions sought in relation to Mr. Severiano’s previous testimony ought to await a determination as to the use of the transcript from the initial hearing.
EXPENSES:
The parties did not address the issue of expenses of the pre-hearing. This matter is reserved to the hearing arbitrator.
August 22, 2007
Eban Bayefsky Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 160
FSCO A04-000077
BETWEEN:
JOHN SEVERIANO Applicant
and
TTC INSURANCE COMPANY LIMITED Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The TTC is not entitled to add the issue of the quantum of Mr. Severiano’s income replacement benefits to the arbitration.
The TTC is not entitled to production of the clinical notes and records of Dr. Fiorini, Men’s Withdrawal Management Centre – Addiction Services (Hamilton Health Sciences), Ozanam House, or the Centre for Addiction and Mental Health.
The TTC is not entitled to production of Mr. Severiano’s hiring hall, disability insurance or extended health records for the three years prior to the July 12, 2001 accident.
The TTC is not, at this time, entitled to production of the pre-accident clinical notes and records of Dr. Frederick Samuel Harris, Dr. Daniel Wong or Dr. Roland Wong.
August 22, 2007
Eban Bayefsky Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- See, for example, Tharmarajah and Co-operators General Insurance Company (FSCO A05-002022, April 30, 2007), Halliday and Certas Direct Insurance Company (FSCO A05-002715, February 9, 2007), Graham and State Farm Mutual Automobile Insurance Company (FSCO A04-002268, July 26, 2005) and Carby and Co-operators General Insurance Company (OIC A-950220, January 12, 1996).