Neutral Citation: 2008 ONFSCDRS 96

FSCO A07-001223

BETWEEN:

TAJENDAR SHARMA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

RULING

Before: John Wilson

Heard: June 9, 2008, in at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: Ms. Sharma in person Eric Grossman for Allstate Insurance Company of Canada

Issues:

The Applicant, Tajendar Sharma, was injured in a motor vehicle accident on November 21, 2001. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ Ms. Sharma 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 commenced on April 21, 2008, but was adjourned at the request of Mr. Grossman, counsel for Allstate, until June 9, 2008.

The issue is:

Is Allstate entitled to file the report of Dr. Brigham relating to catastrophic impairment, notwithstanding the failure to comply with Rule 39.1 of the Dispute Resolution Practice Code, Fourth Edition - Updated October 2003?

Result:

Allstate is not entitled to file the report of Dr. Brigham relating to catastrophic impairment.

EVIDENCE AND ANALYSIS:

At the outset of the resumed hearing in this matter, Mr. Grossman advised that he wished to file a further report as an exhibit. The report in question, written by Dr. Christopher Brigham of Brigham and Associates, deals with an analysis of the catastrophic issue in this arbitration in the context of the author’s view of the intentions of the authors of the original AMA Guides.

I am advised that Dr. Brigham did not examine Ms. Sharma, but relied on a paper review to provide context to Ms. Sharma’s claim.

Dr. Brigham’s report, which I have examined in the context of whether it should be admitted as evidence in this arbitration, essentially reviewed the conclusion of Dr. Oshidari, the CAT DAC examiner, but significantly, commented: “It is our hope that this will result in a better understanding of the appropriate application of the AMA Guides and the assessment of mental and behavioral disorder impairment.” Clearly the report is intended to be more than just a paper review of Ms. Sharma’s medical reports in the context of her catastrophic impairment claim.

Ms. Sharma’s objection to the admission of the report was that it was not served and filed within the time lines provided for in the Evidence Act, R.S.O. 1990, C. E.23. While she did not specify which section of the Act that she relied upon, section 12, dealing with expert evidence, states:

Expert evidence

Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding

Deadlines for the filing of medical reports are dealt with in section 52 of the Evidence Act.

(1) In this section,

“practitioner” means,

(a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991,

(b) a drugless practitioner registered under the Drugless Practitioners Act,

(c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).

Medical reports

(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action.

While Rule 53.03(1) of the Rules of Civil Procedure deal with the filing of reports in court matters, Rule 39.1 of the Dispute Resolution Practice Code addresses that issue in the context of arbitrations.

Rule 39.1 of the Dispute Resolution Practice Code reads as follows:

39.1 Subject to Rule 39.2, all documents, reports (including experts’ reports) and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing.

39.2 In extraordinary circumstances, a party may seek an arbitrator’s permission to serve a document, report or assessment on the other party for use at a hearing less than 30 days before the first day of hearing.

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:

(a) would not be admissible in a court by reason of any privilege under the law of evidence; or

(b) is not admissible under the Insurance Act; or

(c) 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.

The report in question appears to have been served on Ms. Sharma on May 28, 2008, significantly less than the 30 days provided for in Rule 39.1. Indeed, the arbitration process was already under way when the report was filed. Mr. Grossman now requests a dispensation, pursuant to Rule 81, to allow him to file the report and rely upon it as part of Allstate’s case in this matter.

In Mr. Grossman’s mind I should exercise my discretion to allow the report due to an unforeseen change of circumstances, namely the release of the Court of Appeal decision in Monks v. ING.²

Mr. Grossman interprets the decision as standing for the proposition that he is now not entitled to interview the CAT DAC assessors as preparation for their testimony, and in the absence of a properly prepared DAC witness, it is incumbent upon him to present expert evidence that supports the Insurer’s position on catastrophic impairment.

In Monks, E.A. Cronk J.A. noted:

During a searching cross-examination at trial, Dr. Besemann acknowledged his awareness of and support for the neutrality provisions of the guidelines, including the requirement that communications with assessors - like Dr. Besemann - involve all parties to an assessment. But he also confirmed that he had met with ING’s trial counsel to prepare for trial, without the knowledge or involvement of Ms. Monks’ counsel. Further, he was confronted at trial with the fact that, unbeknownst to Ms. Monks’ counsel, he had received documentation from ING’s counsel after the date of his assessment that included “insurance” and “legal” files.

She concluded:

Given this evidence, it was open to the trial judge to conclude that Dr. Besemann’s testimony on cross-examination included an implicit acknowledgment that the neutrality provisions of the guidelines were breached.

According to Mr. Grossman, these comments changed the law and the practice with regard to the treatment of DAC assessors in the context of a hearing or arbitration.

A change in the law can have important ramifications for any party to a court action or an arbitration. Changes can provide a compelling reason to suspend the application of principles such as res judicata or to exercise discretion in favour of a party, where there may be some prejudice arising from the change in law.

Implicit in Mr. Grossman’s request is a claim that his client was prejudiced by the changes in law restricting his access to expert DAC assessors.

Dispensation from the rigourous application of a rule may be appropriate if there are new facts or circumstances that were unknown to the parties. This has been addressed by the courts in the context of the application of res judicata. In Arnold v. National Westminster Bank plc ([1991] 2 A.C. 93, p. 110), the House of Lords adopted the words of Browne-Wilkinson V.C. of the Chancery Division in stating:

In my judgement a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel can be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from a subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not possess. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case.

This approach has been specifically adopted in Ontario by the Court of Appeal in Robb v. St. Joseph Health Care (2001) O.J. No. 606, and cited by Laskin J.A. in Minott v. O’Shanter Development Co. 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321.

I accept that pursuant to Rule 81 of the Practice Code I have a discretion to modify the time lines for the service and filing of expert reports and other documentary evidence to be used in an arbitration proceeding. In this matter, however, I do not find it appropriate to exercise that discretion.

The decision of Lalonde J. at first instance in Monks³ is dated June 15, 2005. The court of Appeal rendered its decision on April 14, 2008.

Both the Monks decision at first instance, and the decision at the appeal level are decisions of tribunals created pursuant to section 96 of the Constitution Act 1867.

It is trite law that, as an arbitrator working in an alternative, legislatively derived system, I am bound by the decisions of the superior courts (section 96 courts) which have a supervisory function over all administrative tribunals in Ontario.⁴ In the absence of competing, contradictory jurisprudence from the superior courts, an arbitrator should at the very least be guided by the jurisprudence emanating from the superior courts of the province.

In 2005 with the release of Lalonde J.’s decision in Monks, there was convincing jurisprudence at the superior court level supporting the proposition that parties should not offend the neutrality of DAC assessors by providing supplementary documents or interviewing them privately as preparation for testimony in an arbitration.

The Court of Appeal decision of April 2008 in Monks merely affirmed this jurisprudence, first enunciated in 2005. However unexpected that affirmation may have been in the minds of Mr. Grossman and his client, no law changed in April 2008. Consequently, there are no changed circumstances to justify the waiver of the time requirements for the expert report on catastrophic impairment. Had Allstate felt the need for a further, non-independent expert assessment, following the issuance of Lalonde J.’s first instance judgement in Monks, it had ample time to do so. It must now live with the consequences of its dilatory conduct.

Even if I am wrong on the issue of a change in law, I would be concerned about the nature of the report itself, and its admission in the context of expert evidence.

As noted earlier, Dr. Brigham did not examine Ms. Sharma. In addition, he framed his report in the following words: “It is our hope that this will result in a better understanding of the appropriate application of the AMA Guides and the assessment of mental and behavioral disorder impairment.” What Dr. Brigham offers in his report is a review of the evidence, together with an analysis of how the AMA Guides should be properly applied.

Expert opinion evidence, including Dr. Brigham’s report, is meant to assist the tribunal in reaching an understanding of processes that are beyond the knowledge and expertise of the average lay-person.⁵

While there is a general agreement about the utility of expert evidence in specific circumstances, there has been some difficulty defining the exact parameters of its use in the hearing process.

McIntyre J., speaking for the Supreme Court of Canada in The Queen v. Beland and Phillips 1987 CanLII 27 (SCC), 36, C.C.C. (3d) 481, outlined his view of the function of an expert witness.

The function of the expert witness is to provide for the jury or other trier of fact an expert’s opinion as to the significance of, or the inference which may be drawn from, proved facts in a field in which the expert witness possesses special knowledge going beyond that of the trier of fact. The expert witness is permitted to give such opinions for the assistance of the jury. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received.

Essentially the same approach to expert testimony was taken in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, which, in a decision written by Sopinka J., set out the general criteria for the admission of expert testimony in the Canadian judicial process. Summarized briefly, an expert must be properly qualified, the evidence must be relevant, the expert evidence must be necessary to assist the trier of fact, and there must be no other exclusionary rule that would prevent its admission.

In an article on expert evidence published in the Alberta Law Review, Michell and Mandhane observed:

Mohan also specifies that an expert’s opinion must be necessary in the sense of providing information “which is ... outside the experience and knowledge of a judge or jury.” Merely establishing that the evidence would be “helpful” to the trier of fact is insufficient.

The authors further noted:

The Supreme Court expressed concern that expert evidence may be “misused” and may “distort the fact-finding process”; held that the need for expert evidence should be “assessed in light of its potential to distort the fact-finding process”; and warned that “experts [must] not be permitted to usurp the functions of the trier of fact.” The Court worried that “[t]oo liberal an approach” to the admission of expert evidence would lead trials to degenerate into “nothing more than a contest of experts,” and convert the trier of fact into a “referee in deciding which expert to accept.”⁶

I am not convinced that Dr. Brigham’s report necessarily provides information that is outside the experience and knowledge of an arbitrator in an accident benefit matter. Sifting the evidence and interpreting the AMA guidelines in the context of the Ontario accident benefit scheme are precisely the core functions of an arbitrator⁷ and not that of an expert witness. Without even addressing the potential issue of the fairness of Dr. Brigham’s report, I am prepared to find that in its pith and substance it usurps the key role of the arbitrator by proffering a specific interpretation of the AMA guidelines, and applying the medical evidence, as he sees it, to that interpretation. This is precisely the type of distortion of the fact-finding process that Mohan attempted to avoid.

Having found that the required “extraordinary circumstances” to waive compliance with the requirements of Rule 39.1 do not exist, I see no reason to relax the requirements of Rule 39.1 to allow a potentially inappropriate report to be filed as evidence in this arbitration.

June 18, 2008

John Wilson Arbitrator

Date

Financial Services Commission of Ontario