Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 84

FSCO A02-001632

BETWEEN:

EDGARDO CORTEZ

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Lawrence Blackman

Heard:

March 26, 2007, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received April 23, 2007.

Appearances:

Mr. Edgardo Cortez, representing himself Mr. Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Edgardo Cortez, was injured in a motor vehicle accident on March 14, 2002. He applied for statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ The parties were unable to resolve their dispute as to the Applicant's entitlement to certain statutory accident benefits and Mr. Cortez applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").

The arbitration hearing in this mater commenced before me on Monday, March 26, 2007. The hearing was scheduled for four days. The Applicant, Mr. Cortez, was unrepresented. Wawanesa Mutual Insurance Company ("Wawanesa") was represented by its counsel, Mr. March. An interpreter in Spanish and English, Ms. Elizabeth Vago, of Able Translations Inc., also attended.

Mr. Dan Toman, a reporter with Victory Verbatim Reporting Services Inc., also attended the hearing, at the Insurer's request. Wawanesa submitted that as it had arranged for and was paying for Mr. Toman's services, it alone had a right to order a transcript from his reporting service.

I asked Mr. Toman to wait outside the hearing room pending my addressing preliminary procedural issues. Mr. Toman then returned to the hearing room to clarify his status.

In response to my questions, Mr. Toman indicated he had started at Victory Verbatim in August 2006 and had received in-house training. He had no prior training in this field. Although Victory Verbatim had reporters certified with the Government, he himself did not have any designation or certification. In response to my question from whom he would take direction in this proceeding, Mr. Toman indicated the arbitrator. In response to my question who could order a copy of the transcript, Mr. Toman indicated either party.

I indicated that I was satisfied with Mr. Toman's answers to my questions and was prepared to have him record these proceedings upon taking an oath to report the evidence and proceedings faithfully, as required by subsection 22(3) of the Insurance Act.

Mr. March, however, objected to my asking questions of his reporter and was not prepared to have the reporter attend under the conditions I proposed, namely that I retain authority and that either party could order a transcript. I granted Mr. March a recess to take instructions.

Upon his return, Mr. March submitted that Rule 74.1 of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003) (the "Code”) entitled Wawanesa to have a court reporter present and that he was uncomfortable with the conditions I proposed. He wished to have an opportunity to prepare formal submissions. Ultimately, I adjourned the matter to May 7, 2007, asking that Wawanesa serve and file written submissions by April 20, 2007 as to the status and responsibilities of a court reporter retained by a party, including the authority of the arbitrator and who may order a transcript.

Accordingly, the preliminary issue is:

What is the status and responsibilities of a court reporter retained by a party, including the authority of the arbitrator and who may order a transcript?

Result:

A person retained by a party has no formal reporting status unless so designated by the Tribunal exercising its discretion in accordance with subsection 22(3) of the Insurance Act, R.S.O. 1990, c. I.8. The conditions set by Wawanesa, specifically its measure of control over the proposed stenographer and its purported exclusive right to order a transcript, are not acceptable and, as a result, I decline to exercise my discretion to administer the requisite oath to the person proposed to record this proceeding.

SUBMISSIONS:

In its written submissions, Wawanesa sought an order "confirming the status of the court reporter, Mr. Dan Toman." Wawanesa specifically states that the reporter has been "retained by the Insurer to attend the Arbitration to record proceedings on behalf of the Insurer" (emphasis added). It states that there is "no evidential issue, fact or circumstance" in this matter that leads to a review and consideration of Mr. Toman's status and that it would be appropriate for such an issue to arise prior to the hearing.

As noted by Wawanesa, my duties under section 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the "SPPA"), include the power to make such orders or give such directions as I consider proper to prevent abuse of the process. Respectfully, preventing abuse includes the duty to maintain a fair, neutral and impartial proceeding, which includes the arbitral responsibility, at the beginning of the arbitration hearing, to address the status of any proposed stenographer.

This adjudicative obligation is reinforced by the requirements of subsection 22(3) of the Insurance Act, entitled "employment of a stenographer," which states that:

The evidence and proceedings in any matter before a person referred to in subsection (1) [which includes every arbitrator] may be reported by a stenographer who has taken an oath before the person to report the evidence and proceedings faithfully.

The use of the word "may," rather than the mandatory "shall," clearly denotes that arbitral discretion must be exercised in determining whether it is appropriate to designate a person as the tribunal stenographer.

This arbitral obligation is further reinforced by section 20 of the SPPA which provides that the tribunal shall compile a record of any proceeding in which a hearing has been held. That record shall include the transcript, if any, of the oral evidence given at the hearing. Thus, the tribunal must determine whether there is indeed a transcript which shall form part of the record.

Returning to the substance of its motion, Wawanesa submits that where a party requests and pays for the reporting service, neither the other party nor the hearing arbitrator have the authority to order transcript evidence from what it termed, in the circumstances of this case, "the Insurer's Court Reporter,' unless the paying party consents. Wawanesa states that the court reporter in this case is:

. . . retained specifically by and for the Insurer. The only responsibility the Reporter has to the Tribunal is that of honesty and professionalism. The recordings prepared by the Reporter are not relevant unless the Insurer orders and relies on the transcript evidence during the hearing. No law extends authority to an arbitrator or the applicant that would enable them to direct the Insurer's Court Reporter to produce a transcript without the consent of the Insurer.

Wawanesa states that the hearing arbitrator maintains authority over the Reporter's attendance and involvement in the arbitration. However, Wawanesa submits that the arbitrator has no authority or jurisdiction "to control the non-party reporting service prior to the transcripts being ordered by the party which retained the reporting service." Further, the Insurer, in listing the requisite attributes of a proposed stenographer, does not mention neutrality and independence.

Wawanesa notes, correctly, that the Legislature has not provided for Commission proceedings to be recorded by a stenographer and has decided that transcripts of testimony at Commission arbitrations "are not a mandatory tool of the process." Wawanesa provides a review as to the reporting services of a number of adjudicative bodies. The essence of Wawanesa's submission is that where an adjudicative body does not provide reporting services and allows a party to arrange for the attendance of a stenographer, in the absence of any express statement to the contrary, only the party arranging for the stenographer can order a transcript.

Wawanesa submits that Rule 74 of the Code provides a clear, unambiguous, complete procedure regarding reporting services.

Rule 74.1 makes it clear that the Commission does not provide reporting services and that parties who want a record of the proceedings must make their own arrangements for the attendance of a reporting service and must pay for same. The provision repeats subsection 22(3) of the Insurance Act that a hearing "may" be recorded by a court reporter who has taken an oath or affirmation to report the evidence and proceedings faithfully.

Rule 74.2 sets out the obligations incumbent on the party hiring a reporting service to inform the other parties and the adjudicator, and attend to the necessary arrangements, including paying the reporting service. Rule 74.3 relates to ordering all or a portion of the transcript of a proceeding. No where in that provision is the right to order a transcript restricted to the party arranging and paying for the court reporter. Rather, the provision states that:

Where a party orders all or a portion of the transcript of a proceeding, the party must:

(a) inform the other parties and the adjudicator;

(b) provide a copy of the transcript to the other party and the adjudicator; and

[emphasis added]

Thus, once a party arranges for a court reporter, and that court reporter is accepted by the tribunal, "a" party, not "the" party arranging and paying the court reporter, may order the transcript of the proceeding.

Wawanesa submits that there are no reported cases at FSCO in which an arbitrator has ordered production of a transcript which has yet to be ordered by the party retaining the reporting service. The Insurer provided two Commission cases it considered relevant.

In Plummer and Farmers 'Mutual Insurance Company (FSCO A04-001327, January 19, 2005), Arbitrator Ashby declined to require Mr. Plummer to order and disclose his transcript from the examination for discovery in a related court tort action. The Arbitrator was of the view that as arbitration at the Commission did not provide for examinations for discovery, it would give an unfair advantage to Farmers' Mutual (which would not be subject to such discovery) to provide production of Mr. Plummer's discovery from another proceeding.

In Ms. Z and Dominion of Canada General Insurance Company (FSCO P00-00023, September 11, 2001), Director's Delegate Makepeace, in deciding the insurer should provide the full transcript of the arbitration hearing, stated that:

Although there is no requirement that an arbitration hearing be recorded, a court reporter who records a FSCO hearing is under a professional and legal obligation to the tribunal. The official role of the court reporter is reflected in s. 22(3) of the Insurance Act . ...

[emphasis added]

I agree.

The Delegate further noted that the Insurance Act says nothing about how reporters are to be hired and does not preclude the Commission from appointing and paying reporters, although the Commission did not currently fund court reporter services. The Delegate, however, concluded:

That a court reporter is hired by a party does not alter the reporter's duty to the tribunal.

I further agree.

The Delegate noted Dominion's submission that no Rule expressly required a party relying on a transcript of cross-examination to pay for preparation of transcripts of examination-in-chief and re-examination as well. The Delegate responded by saying:

Dominion's position misunderstands the role of transcripts in FSCO appeals. They must be used fairly. Adjudicators should not allow a party to rely on partial transcripts where that would create an inadequate record . . . . In some cases, fairness requires that a full transcript be prepared.

I find that Wawanesa misunderstands the role of a tribunal stenographer. Arranging for and paying for the services of a reporter does not make either the reporter or the transcript from the proceeding the property of the paying party.

Subsection 22(3) of the Insurance Act requires the stenographer to "report the evidence and proceedings faithfully." That entails both neutrality and impartiality; that the reporter looks only to the Tribunal for instructions. Wawanesa, however, refers to the stenographer as the "Insurer's Court Reporter" who is retained "for the Insurer." That is inconsistent with the status Wawanesa seeks for the proposed stenographer.

My authority regarding the employment of a stenographer is set out in section 22 of the Insurance Act. The employment of a stenographer is conditional upon the stenographer taking an oath to report the evidence and proceedings faithfully. I agree with Delegate Makepeace that this is a professional and legal obligation to the tribunal. It is not an obligation to the party which retained the stenographer. Neither the tribunal nor the proceedings can be seen as neutral, independent or fair where the court reporter's master is the hiring party and arbitral authority is subject to the consent of that paying party.

Further, using the words of Arbitrator Ashby in a different context, it would give an unfair advantage to the party retaining the stenographer if only it could order the transcript. As noted, the Commission does not consider it mandatory to have a court reporter. Whatever may have been reason for that decision, be it cost effectiveness or otherwise, the ability of a party to arrange for a tribunal stenographer is not an unfettered right. It is subject to the tribunal's duty to reasonably and fairly protect the integrity of its process.

What Wawanesa is proposing in this case is that the role of their stenographer is akin to a junior lawyer, student-at-law or law clerk taking notes, albeit extremely professionally, purely for the benefit of one counsel and that counsel's client. Such a role is an honourable one, and I have no hesitation in allowing Mr. Toman or some other like individual into the hearing room to perform that task. He shall sit beside counsel as part of Wawanesa's legal team. He will not be sworn in. His notes will not be producible. His notes form no part of the record nor do they have any official or formal status. They are purely Wawanesa's property and purely for Wawanesa's benefit. They may be as partial and incomplete as Wawanesa feels is appropriate, highlighting whatever aspects of the evidence Wawanesa feels is helpful to its cause. To avoid any misunderstanding as to the status of the stenographer, the proceeding may not be taped, as is usual with a stenographer who has been sworn. Rather, a lap top or a writing utensil may be used. The stenographer shall be subject to my authority similar to any other legal representative or their assistant.

May 4, 2007

Lawrence Blackman Arbitrator

Date