Rita May Le-Blanc v. State Farm Mutual Automobile Insurance Company, 2009 ONFSCDRS 75

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 75

FSCO A08-001195

BETWEEN:

RITA MAY LE-BLANC

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Robert A. Kominar

Heard: April 6, 2009

Appearances: Rizwan Wancho for Mrs. Le-Blanc

Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Rita May Le-Blanc, was injured in a motor vehicle accident on August 14, 2006. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement and housekeeping benefits and denied various costs of examinations. The parties were unable to resolve their disputes through mediation, and Mrs. Le-Blanc applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in dispute were identified and agreed to as follows:

Is Mrs. Le-Blanc entitled to receive a weekly income replacement benefit pursuant to sections 4 and 5 of the Schedule in the amount of $400 per week from July 7, 2007 and ongoing?
Is Mrs. Le-Blanc entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule in the amount of $100 per week from April 7, 2007 to August 14, 2008?
Is Mrs. Le-Blanc entitled to payments for the cost of examinations, pursuant to section 24 of the Schedule in the amount of $2,122 for the preparation of rebuttal reports and treatment plans by Rehab Centre?
Is State Farm liable to pay Mrs. Le-Blanc’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Le-Blanc liable to pay State Farm’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mrs. Le-Blanc entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mrs. Le-Blanc’s claims for income replacement benefits, housekeeping and home maintenance benefits, payment for the cost of examinations, interest and expenses are dismissed.
State Farm is entitled to its expenses for the arbitration hearing. The parties are encouraged to resolve the issue of quantum of expenses between themselves within 30 days of the date of this decision. If they cannot reach an agreement within that time frame an expense hearing may be arranged for expenses to be assessed.

EVIDENCE AND ANALYSIS:

This arbitration was scheduled for hearing on April 6, 7, 8 and 9, 2009 at the offices of the Financial Services Commission of Ontario. These dates were established at the pre-hearing which took place on October 16, 2008. The pre-hearing letter records that both Mrs. Le-Blanc and Mr. Wancho, her paralegal representative, were present at the pre-hearing and participated in setting these arbitration dates.

A settlement discussion was convened in the normal course by an arbitrator on March 24, 2009, at which time the issues in dispute between the parties did not resolve. On March 25, 2009 Mr. Wancho wrote to the Commission requesting that the arbitration be adjourned.

One specific reason which Mr. Wancho cited in support of this adjournment request was that he needed to present evidence at the hearing from Dr. Dar, whom I understand to be Mrs. Le-Blanc’s family physician. As of March 25, 2009 Mr. Wancho had not obtained a medical report related to Mrs. Le-Blanc’s claims for accident benefits from Dr. Dar. Nor had he secured her agreement to attend the hearing or summonsed her to appear as a witness in the arbitration. There is a copy of correspondence in the Commission’s file, sent from Mr. Wancho to Dr. Dar which is dated January 13, 2009, approximately 3 months after the pre-hearing, requesting, ostensibly for the first time, that she prepare a report for the purposes of arbitration and which explicitly advises her that she would not be required to give oral evidence at the hearing unless the Insurer wished to cross-examine her.

Based on the material in front of me, and on Mr. Wancho’s submissions, I conclude that Dr. Dar never prepared a report, nor is there any record that she ever agreed to do so. Mr. Wancho’s correspondence requesting the adjournment states that his office was aware that Dr. Dar was “out of the country” for some unspecified period of time after January 13, 2009. No further information was provided to me as to the dates of Dr. Dar’s absence from Canada. I have no knowledge whether she was absent for a week, a month or even whether she has returned to date.

I decline to place any reliance on such vague submissions and I am unable to draw the conclusion that Dr. Dar’s absence from Canada is in any way connected with her not preparing a report for Mrs. Le-Blanc. I note that Dr. Dar was identified in the pre-hearing letter as a prospective witness for the Applicant, and from this I draw the inference that the salience of her evidence, in some form, was recognized by Mrs. Le-Blanc and Mr. Wancho at least as far back as October 16, 2008. There is no good reason to believe that the importance of Dr. Dar’s involvement in this case was something that rose to consciousness on the Applicant’s side of the case just prior to the hearing starting.

In addition to the issues related to Dr. Dar, Mr. Wancho further cited in support of his request for an adjournment that two other medical witnesses were unable to present evidence at the hearing: Dr. Afshin Rayan (physiatrist) and Dr. Roy Raghunan (psychologist). Dr. Raghunan was identified as a witness for the Applicant in the pre-hearing letter. I have no information in the material before me which clarifies what role Dr. Rayan was to play in this arbitration. Like Dr. Dar, neither of these witnesses was summonsed by the Applicant to testify at the arbitration. Mr. Wancho did not provide me with any information which could clarify what the problem was with the attendance of these witnesses, other than the vague comment that they said they were unavailable. A summons to witness should have been the first response to such reticence in attending an arbitration. This route was not followed. Nor does it seem that any attempts were made to seriously follow up with these medical professionals by Mr. Wancho’s office.

The final ground cited in support of the adjournment by the Applicant is that she had not received a complete accident benefit file, including adjuster’s notes.

The adjournment request was contested by State Farm and submissions on the matter were heard by Arbitrator Sampliner on April 2, 2009. He denied the request for an adjournment in a letter dated April 3, 2009, for the following reasons:

Mrs. Le-Blanc and her representative had many months to either obtain a medical report from Dr. Dar or to summons her to testify at the hearing if they were not getting co-operation from her. The arbitrator specifically cited in support of this decision Practice Note 9 of the Dispute Resolution Practice Code, which contains the Commission’s policy on adjournments. The relevant portion of this Practice Note states that adjournments will normally be refused in a number of circumstances, one of which is: “where the parties have not made early arrangements to ensure availability of documents or the attendance of witnesses.”
Apparently Mr. Wancho orally argued before Arbitrator Sampliner that he also needed more time to obtain further unspecified medical reports supporting Mrs. Le-Blanc’s entitlement to income replacement benefits, post 104 weeks of disability, to properly represent her in a hearing. The adjournment arbitrator concluded, once again, that Mrs. Le-Blanc and Mr. Wancho had an adequate amount of time to prepare for this aspect of their case. I note that the argument was not that these proposed reports were delayed in any sense but that they had not even been requested from anyone yet. In this regard I note that Practice Note 9 also provides that adjournments will normally be refused “where parties have not made early arrangements for further medical examinations, assessments or follow-up.”
Mr. Wancho further submitted that State Farm had not filed its arbitration brief 30 days prior to the hearing as required by the Dispute Resolution Practice Code. The Insurer responded by pointing out that the rules allow for service on the following Monday, when the time for service falls on Saturday, Sunday or a statutory holiday. State Farm argued that service was completed in this specific case, as allowed by the rules, on March 9, 2009. The brief is clearly marked as having been received by the Commission on that date. The adjournment arbitrator declined to grant an adjournment noting that the hearing arbitrator ultimately must decide what evidence will be admitted at the hearing and how evidence will be scheduled within it.
Finally Mr. Wancho argued that since he had not been provided with what he regarded to be the full accident benefits file, including adjuster’s notes, before March 27, 2009 it was unfair to require Mrs. Le-Blanc to proceed to hearing. The adjournment arbitrator noted that these adjuster’s notes, if relevant at all, would likely relate only to a claim for a Special Award and that the hearing arbitrator was in a better position to deal with any aspect of the case that turned on the timing of receipt of the adjuster’s log notes. In this regard, I note, although not specifically mentioned by Arbitrator Sampliner in his reasons for denying the adjournment request, that no claim for a Special Award was asserted by Mrs. Le-Blanc according to the pre-hearing letter. Nor is there any documentation asking that this issue be added after the pre-hearing letter was issued.

In conclusion, Arbitrator Sampliner found that Mrs. Le-Blanc and Mr. Wancho had not satisfied him that an adjournment at the late date it was requested was warranted or in compliance with the Commission’s policy on adjournments. In fact, if anything, the circumstances here suggest that this is exactly the type of situation where adjournments should not be granted. Mr. Wancho advised Arbitrator Sampliner that he would likely renew his request for an adjournment at the commencement of the arbitration on April 6, 2009.

On the morning of April 6, 2009 I opened the arbitration proceedings. Mr. March and Mr. Kope were present on behalf of State Farm. Mr. Wancho was present, but Mrs. Le-Blanc was not. I asked Mr. Wancho where Mrs. Le-Blanc was and he advised me that he had told her to stay at home as he was confident that I would reverse Arbitrator Sampliner’s decision and grant the request for an adjournment. Mr. Wancho also stated that he had received and read Arbitrator Sampliner’s letter explaining the reasons for declining the adjournment request. In this regard I point out that Practice Note 9 reads as follows (emphasis added):

Every request for an adjournment receives a written response from the Commission. No adjournment is granted without written confirmation to the parties and their representatives. If you have not received written confirmation of your adjournment request prior to the scheduled date of the proceeding, you are required to attend at the proceeding on the originally scheduled date to speak to an arbitrator on the issue of the adjournment request.

At the outset of the proceedings Mr. Wancho renewed his request for an adjournment of the arbitration. At that point I asked him whether he had any new grounds to raise, or submissions to make, beyond those which he had presented to Arbitrator Sampliner. He responded that he did and I allowed him to make his submissions on the adjournment again.

Mr. Wancho repeated what I believe to be substantially the same submissions he made to Arbitrator Sampliner and I find that he did not in fact raise any new grounds to support the adjournment request. However he did argue that the adjournment should be granted because the evidence and witnesses which he required were “unavoidably delayed.” The relevance of this claim is that Practice Note 9 provides that adjournments may be granted based on “medical or other critical evidence that is UNAVOIDABLY delayed.” (Emphasis in original)

However, I have no basis to conclude, on even a bare balance of probabilities, that the evidence which Mr. Wancho stated that he required was “unavoidably” delayed. Rather, I agree with Arbitrator Sampliner that, in fact, the most reasonable inference to draw from Mr. Wancho’s submissions on this matter is that he could have completely avoided this result had he properly prepared his case for arbitration.

In support of this conclusion I rely on the following uncontested facts:

Dr. Dar’s evidence was identified as being crucial to the Applicant as far back as the pre-hearing which occurred on October 16, 2008. The earliest record in the material before me of “any” contact with Dr. Dar about this arbitration was January 13, 2009.
There is no material before me which confirms or even suggests that Dr. Dar agreed to provide the report which Mr. Wancho states that she was preparing.
There is no material before me to clarify what dates Dr. Dar was “out of the country” and when Mr. Wancho’s office learned about this. Nor is there any material which would support drawing the inference that her absence from Canada is related to a report not having been prepared.
There is correspondence from Mr. Wancho telling Dr. Dar that the Applicant would not be calling her as a witness, notwithstanding that Mr. Wancho submits that she has always been a “crucial” witness for Mrs. Le-Blanc.
Dr. Dar was never summonsed to give evidence at the hearing on behalf of Mrs. Le-Blanc even though Mr. Wancho ought reasonably to have known that he was not going to obtain a medical report from her in time to file it in this arbitration.
Mr. Wancho did not make any efforts to request an adjournment until after a settlement discussion failed, even though he was well aware before the date of the settlement discussion that the evidence he needed to proceed to a hearing would not be available to him.
Dr. Raghunan and Dr. Rayan were also not summonsed to give oral evidence at the hearing. Dr. Rayan was not identified as a potential witness in the pre-hearing letter, but both of these doctors were identified in a letter dated March 17, 2009 from Mr. Wancho to Mr. March as being the Applicant’s hearing witnesses. However that letter also states that Mr. Wancho did not necessarily intend to call them in person but rather rely on their reports. From this I infer that there were reports which these doctors prepared which could have been tendered in the arbitration if Mr. Wancho chose to do so. He failed to summons the doctors and he also failed to tender their reports in the arbitration.
Despite knowing that Arbitrator Sampliner had denied the adjournment request Mr. Wancho explicitly instructed Mrs. Le-Blanc not to attend the first day of the arbitration. Mr. Wancho confirmed to me that he had spoken to Mrs. Le-Blanc after the adjournment was denied to tell her this. When I asked him if there were any other reasons for her not attending to give evidence on her own behalf, Mr. Wancho answered that there were not. He assumed, quite contrary to the Commission’s adjournment policy, that an adjournment would ultimately be granted by me. I agree with Mr. March’s submission that the most likely reason for this was that Mr. Wancho had strategically concluded that he would be more likely to obtain an adjournment if “no” evidence were available on the first day of the hearing, rather than if only “some” evidence was unavailable.
The argument that the adjuster’s notes were provided late to Mrs. Le-Blanc does not relate to any substantive issue in the arbitration. As I have noted above there was no claim for a Special Award recorded in the pre-hearing letter. Neither was there any correspondence asking the pre-hearing arbitrator to amend the issues. Notwithstanding that a hearing arbitrator may consider the issue of a Special Award whether or not it has been pleaded; this is irrelevant to Mr. Wancho’s request for an adjournment. In order to obtain a Special Award Mrs. Le-Blanc would first have to be found entitled to some substantive benefits. The reality here is that she had absolutely no evidence, including her own testimony, to present at the arbitration related to any substantive benefits. In addition it would have been open to Mr. Wancho, within the hearing, to request additional time to review the adjuster’s notes due to the date of delivery. He chose not to do this. I find it patently unreasonable for him to have declined to present what evidence the Applicant did have within her control because he thought he should have more time to review these documents.

It is trite law that an accident benefits case is civil in nature and thus the Applicant has the burden of proof to demonstrate entitlement to the benefits claimed on a balance of probabilities. It is also trite to observe that the Applicant has the responsibility of preparing her case for an arbitration hearing. If her legal representative fails to do so, she remains responsible as she chose to engage his services. It is not the Insurer’s job to prepare her case for her.

During his submissions to me Mr. Wancho suggested that, in his view, it was State Farm’s fault that he was unprepared for the hearing, because they did not clarify early enough whether they would be calling their witnesses live or simply relying on medical reports. I fail to understand the logic of Mr. Wancho’s submissions here. It makes absolutely no sense for the Applicant to claim that she cannot present the evidence which supports her case, or indeed could not even have gone out in advance of the arbitration and secured that evidence, “because” she didn’t know exactly how the Insurer was going to respond to her case. This is a complete non sequitur in an adversarial context. This is especially the case when it comes to considering Mrs. Le-Blanc’s personal testimony. Even if there were good reasons to explain why the professional medical evidence was unavailable, which I reiterate that I find not to be the case here, nothing, other than strategic last minute manoeuvring, justifies Mrs. Le-Blanc’s failure to appear and testify on her own behalf when the hearing commenced. Strategic manoeuvring of this sort is strongly discouraged in the arbitration context, whether it is the Applicant or the Insurer that engages in it.

Burdens of proof exist largely to deal with such problems. Even if the Insurer ultimately chose to offer no evidence in response to the Applicant’s case, that does not relieve the Applicant of the legal responsibility of meeting the evidentiary burden of proof, or for being adequately prepared for the hearing.

Mr. Wancho further argued that there would be no prejudice to State Farm in granting the adjournment and in fact went on to offer to personally pay the costs associated with any adjournment. Although the imposition of costs is one remedy which I addressed my mind to here, I find that it is not the appropriate response by the Commission when all of the material and submissions before me lead to the conclusion that the Applicant and her representative simply chose not to prepare adequately for the hearing. It is the consistency in the lack of preparation that is most striking here. I find that the most plausible inference to draw from the facts is that Mr. Wancho expected this case to settle at some point and that he never really contemplated actually preparing for a hearing.

Although settlement is something which the Commission strongly encourages, and appropriately so in my view, the reality is that arbitration is an adjudicative process, one of the goals of which is to bring fair closure to disputes for both parties on a timely basis. As I pointed out in Mahadeo and Aviva,² legal representatives cannot justify their failure to be prepared for a hearing because they anticipated that the case would settle. It is completely unfair to Insurers to expect them to devote time and resources to responding to arbitration cases if Applicants are allowed to “suggest” they will be obtaining evidence which supports their claims, but never do.

It is difficult to understand how an Insurer should be expected to reasonably respond to claims such as Mrs. Le-Blanc’s. If Dr. Dar’s evidence was so pivotal, one would have thought that it would have been secured long ago and also that State Farm would have benefited from reading her report early on, while being asked to entertain proposals to settle. Apparently this was not really the case and Dr. Dar’s evidence suddenly became necessary once settlement discussions failed and a hearing became imminent. I emphasize that this smacks of the Applicant looking to “bolster her case” before a hearing and that it is not something which the arbitration process at the Commission encourages.

In conclusion, I adopt Arbitrator Sampliner’s view that an adjournment of this arbitration was not warranted. No new arguments beyond those which appear to have been presented to Arbitrator Sampliner were presented to me and I endorse his rationale for declining to grant the adjournment when the request was reprised at the start of the hearing.

The Applicant has the civil burden of proof in these proceedings and when I asked Mr. Wancho if there was any evidence that would be presented on behalf of Mrs. Le-Blanc he responded that there was none. That being the case the Applicant has failed to meet the civil burden of proof and therefore her claims for income replacement benefits, housekeeping benefits, cost of examinations, interest and expenses are dismissed.

EXPENSES:

I find that State Farm is entitled to its expenses in this arbitration, pursuant to the provisions set out in the Expense Regulation. I encourage the parties to attempt to resolve the issue of expenses within 30 days of receiving this decision. In the event that expenses cannot be resolved within that time, an expense hearing can be arranged through the Case Administrator and I shall assess them.

June 15, 2009

Robert A. Kominar

Arbitrator

Date