Jaswant Kaur v. Personal Insurance Company of Canada, 2011 ONFSCDRS 67

Financial Services Commission of Ontario

Neutral Citation: 2011 ONFSCDRS 67

FSCO A09-002515

BETWEEN:

JASWANT KAUR

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Denise Ashby

Heard: July 22, 2011, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Iqbal S. Bedi for Mrs. Kaur

Ryan M. Naimark for Personal Insurance Company of Canada

Issues:

The Applicant, Jaswant Kaur, was involved in a motor vehicle accident on April 21, 2007. She applied for a caregiver benefit from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Personal refused payment of the benefit. The parties were unable to resolve their disputes through mediation, and Mrs. Kaur 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 are:

Is Mrs. Kaur entitled to participate in the resumption of the arbitration hearing, at a date to be set, by teleconference from her home in India?

Result:

If Personal advises Mrs. Kaur that it seeks to cross-examine her on or before September 12, 2011, Mrs. Kaur shall attend in person to give her evidence. If she is not required to give oral testimony, Mrs. Kaur may participate by teleconference.
The hearing is scheduled, peremptory to both Mrs. Kaur and Personal, on January 4 and January 5, 2012.

REASONS:

Mrs. Kaur resides in India. At the time of the accident on April 21, 2007, she was in Canada staying with her daughter and son-in-law, Mr. Bedi, due to the birth of their child and her grandson. She returned to Canada in 2009 following the birth of her second grandson.

On April 16, 2010, the Pre-hearing Arbitrator issued a decision pursuant to Rule 37.3 of the Dispute Resolution Practice Code (DRPC) in which he found that Mrs. Kaur’s attendance by telephone would not significantly prejudice Personal. The Arbitrator found that the exercise of arbitral discretion in determining the manner in which a hearing is held is guided by Rule 1.1 which provides: “These Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.” He declined to order an electronic hearing on the basis that he had no evidence before him regarding the cost of Mrs. Kaur’s attendance and whether it would in fact be the least expensive format. His decision was without prejudice to Mrs. Kaur renewing her request for an electronic hearing upon obtaining such evidence.

On May 28, 2010, Mr. Bedi wrote to the Commission providing information about the cost of Mrs. Kaur’s attendance at the hearing. These submissions were in support of Mrs. Kaur seeking to renew her motion to attend the hearing by telephone or, in the alternative, an order requiring Personal to pay for Mrs. Kaur’s travel expenses and those of a companion. Mr. Bedi renewed the motion before me at the commencement of the hearing.

On December 29, 2010, I issued a decision requiring Mrs. Kaur and Mr. Bedi to comply with certain terms relating to Mr. Bedi’s capacity to represent Mrs. Kaur prior to my determining the type of hearing. Those terms were met and this resumption was scheduled for July 22, 2011.

On May 24, 2011, I advised the parties that the Commission is able to hold hearings by video conference if the participants have internet access with certain minimal requirements and a computer that met other requirements. On June 24, 2011, Mr. Bedi advised that Mrs. Kaur was considering obtaining a computer that would permit her participation in the hearing by video conference.

On July 22, 2011, the hearing was resumed to deal with the issue of the manner in which it would be conducted. Mrs. Kaur participated by teleconference with the assistance of an interpreter who was present in the hearing room.

Mr. Bedi submitted that Mrs. Kaur should be permitted to participate by teleconference or video conference and not be required to attend in person due to the expense she would have to incur. He relied on the materials he submitted with his letter dated May 28, 2010. As well, Mr. Bedi advised that Mrs. Kaur will not call any witnesses at the hearing and will be relying on the medical evidence.

Although Personal took no position on the issue of how the hearing would be conducted, it sought to preserve its right to require Mrs. Kaur to attend for cross-examination. Personal advised that it had not yet determined whether to cross-examine Mrs. Kaur. However, in the event it did require her attendance, Personal expected it would be examining her on various documents.

Rule 37.1 of the DRPC provides:

The arbitrator may:

(a) hold an oral hearing;

(b) hold a written hearing;

(d) hold a hearing which combines one or more of the above formats.

Rule 81 provides an adjudicator with the discretion to set aside any time limit set out in the Rules for doing any act or serving any notice subject to the provisions of the Insurance Act and the Statutory Powers Procedure Act.

As Mrs. Kaur did not have a computer or internet access which met the minimal standards required for video conferencing, the opportunity to test the technology and the parties’ abilities to use it prior to the hearing was lost. Therefore, I ruled that I would not conduct the hearing by video conference.

Adjudicators have an obligation to preserve the integrity of the process. The DRPC provides for oral or electronic hearings or a combination of oral, written or electronic hearings. Usually, hearings conducted by teleconference are confined to issues of law. Expense Hearings are the most common example of combined written and electronic hearings. As well, in-person hearings may be concluded with final submissions being delivered at a teleconference or in writing. Similarly, Preliminary Issue Hearings, in which written factums and case law are submitted may be augmented with oral argument either by teleconference or in-person. In such proceedings, the Representatives and the Adjudicator have the same documents before them and share a common language. They are experienced with the procedural requirements of the hearing process.

In-person hearings in which oral evidence is received can be complicated. It is sometimes unclear which documents are being referred to. It is not uncommon for a Representative to approach a witness to assist the witness in finding the portion of the document that is being dealt with. Dealing with evidentiary issues is further complicated when an interpreter is required.

In the circumstances of this matter, Personal has the right to require Mrs. Kaur to present herself for cross-examination pursuant to Rule 41 of the DRPC. I have no evidence that Mrs. Kaur is familiar with the hearing process. She is represented by her son-in-law who is a lay person. Mrs. Kaur requires an interpreter. Although she participated by teleconference at the Resumption, there was no need for her to review or consider documents. The documents are in English. At an in-person hearing it is a simple matter to confirm that a witness has the right document before them. There is no means of ensuring this when a witness is not in the hearing room. If she has the documents, then there is no reasonable means of having them interpreted to her. I am not prepared to risk having the validity of her testimony undermined by procedural irregularities caused by a teleconference, if Personal requires her for cross-examination.

Rule 41.1 requires Personal to give Mrs. Kaur notice 30 days prior to the hearing date that she is required for cross-examination. Given the need for her to make travel arrangements including obtaining a visa, this is insufficient time. Therefore, Personal shall give her notice on or before September 12, 2011 if it requires Mrs. Kaur to be cross-examined. If Mrs. Kaur is not required for cross-examination, she may participate by teleconference.

Hearing Date:

The hearing date was set to resume again on January 4 and January 5, 2012. This date is peremptory to both parties to ensure that this matter is concluded without further delay.

August 12, 2011

Denise Ashby Arbitrator

Date