Neutral Citation: 2011 ONFSCDRS 42 FSCO P09-00015V

BETWEEN:

PERSONAL INSURANCE COMPANY OF CANADA Applicant/Insurer

and

BAVANI THEVARANJAN Respondent/Insured

REASONS FOR DECISION

Before: Fred Sampliner Heard: At the offices of the Financial Services Commission of Ontario in Toronto on April 26, 2010 and July 8, 2010. The parties filed written submissions on the expenses of this proceeding on September 14 and 15, 2010, and made oral submissions by teleconference on September 17, 2010 Appearances: David S. Wilson for Ms. Thevaranjan Michael Chadwick for Personal Insurance Company of Canada

Issues:

The Applicant, Bavani Thevaranjan, has been receiving income replacement benefits from Personal Insurance Company of Canada (“Personal”) as a result of the injuries she sustained in a motor vehicle accident on April 22, 2004. Personal applied to vary/revoke the June 26, 2007 Order I made under which Ms. Thevaranjan continued receiving income replacement benefits of $263.51 per week under Part II of the Schedule.¹ The Director of Arbitrations assigned me to hear Personal’s Application For Variation/Revocation (“Application”) proceeding at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Personal requested permission to withdraw its Application during Ms. Thevaranjan’s cross-examination of Personal’s first expert witness. Ms. Thevaranjan opposed Personal’s withdrawal, instead requesting dismissal of the Application with terms attached for production of specific documents.

The issues are:

Should Personal’s Application for Variation/Revocation be dismissed or withdrawn?
What terms should be attached to the termination of this Application?
What amount of Ms. Thevaranjan’s expenses is Personal required to pay?

Result:

Ms. Thevaranjan must file written submissions of no more than five (5) pages double spaced print and attached case law within ten (10) business days of this decision to support her request for dismissal and the production of Dr. Shapiro’s and Dr. Duhamel’s clinical notes and records. Personal must file its response of no more than five (5) pages double spaced print with attached case law ten (10) business days after Ms. Thevaranjan’s filing. Ms. Thevaranjan may file one (1) page of written submissions respecting the contents of Dr. Kelly’s addendum report within five (5) business days of Personal filing it.
Personal’s responsive submissions shall attach Dr. Paul Kelly’s written addendum statement explaining why he changed his opinion.
Expenses are deferred.

EVIDENCE AND ANALYSIS:

The Hearing Process:

The parties’ opening submissions, introduction of documents and other procedural matters occupied considerable time during the first hearing day. Ms. Thevaranjan’s cross-examination of Personal’s first witness, Mr. John Haratsis, commenced during that afternoon. Scheduling conflicts and the parties’ problems obtaining additional documents delayed our resumption of the hearing until July 8, 2010, when Mr. Haratsis was set to re-appear to complete his evidence.

On July 7, 2010, Personal notified Ms. Thevaranjan that it would ask permission to withdraw its Application because its psychological expert, Dr. Paul Kelly, had changed his opinion about Ms. Thevaranjan’s disability during the intervening two months. At the opening of the July 8, 2010 hearing, Personal submitted that Dr. Kelly’s agreement Ms. Thevaranjan suffered a work disabling pain disorder as a result of the April 22, 2004 motor vehicle accident prompted it to seek withdrawal of its Application. While Dr. Kelly’s report, filed as an exhibit, supports Personal’s Application, there is no evidence he changed his mind.

Dismissal or Withdrawal:

Ms. Thevaranjan maintains this Tribunal should dismiss Personal’s Application under Rule 68 of the Dispute Resolution Practice Code (“DRPC”). She insists that her success proving her entitlement to income replacement benefits at arbitration hearings in 2006² and 2007³ and confirmed in a 2009⁴ appeal decision, should bear greater consequence for Personal in this Application.

Black’s Law Dictionary⁵ defines “dismissal” as the termination of an action or claim without further hearing, especially before the trial of the issues. The Statutory Powers and Procedure Act (“SPPA”) provide adjudicators at this Tribunal with authority to dismiss proceedings where:

4.6(1) Subject to subsection (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

Under Subsection 4.6(2) of the SPPA, the tribunal must give notice of its intention to dismiss the proceeding as a precondition for a dismissal.

Rule 68 of the DRPC essentially duplicates the SPPA provisions in granting authority to dismiss a proceeding without further hearing where it is frivolous, vexatious or commenced in bad faith. The provision requires the Tribunal to deliver a notice of intention to dismiss the proceeding to both the parties beforehand.

Procedurally, Ms. Thevaranjan had not requested and this Tribunal had not issued the required notice under Rule 68.2 of the DRPC at the time of her dismissal request. Personal had no adequate opportunity to prepare its response, and I therefore decline to formally rule on Ms. Thevaranjan’s dismissal request until the parties have the opportunity to make submissions in conformity with timelines I have ordered. This decision shall operate as the parties’ notice under Rule 68.2, and I ask counsel to consider my comments.

Adjudicators acting under the authority of Rule 68 have dismissed claims when there is frivolous, vexatious or bad faith claims or behaviour. Examples are situations where a party fails to appear at prehearings⁶ or the hearing⁷, disobeys an order⁸ or has abandoned participation in the process.⁹ Ms. Thevaranjan did not allege Personal’s Application meets any of the three situations, refer to evidence or behaviour demonstrating the Application meets these criteria or cite case law. I need to know the factual basis and legal theory behind Ms. Thevaranjan’s position.

The parties clearly had not presented much evidence before Personal’s request. While an adjudicator can dispose of a claim or portion of a claim after considering the evidence and hearing submissions, the parties made reference to only a few documents in the exhibit books and they had scheduled other witnesses in addition to the one we did not complete. Consequently, it is difficult for me to accept that Personal’s Application can be dismissed on its merits.¹⁰

The second method for terminating an Application is specifically provided for in a withdrawal under the DRPC Rules of Procedure. Subrule 70.1(c) and subrule 70.3 provide for a party to seek permission to withdraw all or part of a dispute during a hearing upon such terms and conditions as the adjudicator considers just. Ms. Thevaranjan’s request to attach terms to the termination of this legal action is a specific remedy provided for in the withdrawal provisions, and respects her position that terms will preserve the principles of natural justice and this Tribunal’s processes.¹¹

Withdrawal is not a right. However, Personal’s request does not appear to be an abuse of process, such as “forum shopping”¹² or a refusal to participate in a hearing¹³ that would cause rejection of the withdrawal request. I am inclined to view withdrawal as the appropriate mechanism to terminate the Application because the Rules specifically mention this is appropriate during a hearing where terms may attach.

Terms:

In my view, the more important issue concerns the terms for the termination of this legal action. Ms. Thevaranjan requests an order that Personal produce three items. She wants documentary evidence that Dr. Kelly changed his opinion and an order that Personal meet its undertaking to obtain the complete clinical notes and records of Dr. Paul Duhamel and of Dr. Judith Shapiro. Ms. Thevaranjan is adamant that allowing Personal to end this process in the midst of a hearing based on an undocumented turnaround in an expert’s opinion and failure to meet its undertaking commitment would be an abuse of this process.

Personal responds that it is unable to fulfill its undertakings because Dr. Duhamel and Dr. Shapiro do not co-operate, despite its best efforts. Personal contends that the physicians’ records and Dr. Kelly’s evidence is moot and irrelevant now that the legal process has ended.

The principle that this Tribunal’s jurisdiction over the parties is maintained until a final order issues is well-established, and I reject Personal’s submission that the production issues are moot. In my view, this Tribunal has a duty to ensure that the submissions made in furtherance of a withdrawal request during the midst of a hearing are founded in fact before ruling on the terms and conditions of the relief. Otherwise, parties could make claims and terminate a proceeding without risk if they did not like the progress of the adjudication.¹⁴

Personal’s withdrawal request is entirely based on the unproven assertion that Dr. Kelly changed his opinion days before the resumption of the hearing. I am of the opinion that it is both relevant and reasonable that Personal provide Ms. Thevaranjan with a written statement from Dr. Kelly setting out his reasons why he no longer supports his original opinion. I expect Dr. Kelly to be brief in his reasons, but fairly set out the factual basis on one or two pages.

Ms. Thevaranjan’s insistence that she have an opportunity to review the clinical notes and records of Dr. Duhamel and Dr. Shapiro must balance Personal’s undertaking commitment to the relevance of this material in the adjudication process. Clinical notes and records are used to test the basis of an expert’s evidence on cross examination. However, I agree with Personal that this material is not relevant when the expert does not testify. Ms. Thevaranjan did not state her reasons or provide case law to support her position the clinical notes and records remain relevant when the expert evidence is no longer an issue.

EXPENSES:

Personal has agreed to pay Ms. Thevaranjan’s expenses. I received both parties’ written materials and heard counsels’ submissions.

The parties are directed to provide me with their brief submissions and/or materials respecting additional expenses to address the issue in the final order.

April 19, 2011

Fred Sampliner Arbitrator

Financial Services Commission of Ontario