Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 91

FSCO A10-001436

BETWEEN:

D'ARCY MARSH

Applicant

and

INTACT INSURANCE COMPANY

Insurer

Before: William J. Renahan

Heard: By telephone conference call on August 30, 2011. Written submissions were received on September 28, 2011.

Appearances: Robert Ben for Mr. Marsh

David Murray for Intact Insurance Company

Issues:

The Applicant, D’Arcy Marsh, was injured in a motor vehicle accident on February 19, 2003. He applied for and received statutory accident benefits from Intact Insurance Company payable under the Schedule.¹ The parties were unable to resolve their disputes about Mr. Marsh’s entitlement to further accident benefits through mediation, and Mr. Marsh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Applicant applied for an adjournment of the hearing. The Insurer opposed.

Result:

The hearing is adjourned to October 1, 2, 3, 4, 9, 10 and 11 and November 19 and 20, 2012.

EVIDENCE AND ANALYSIS:

Facts:

At the outset of the motion, the parties’ representatives and I engaged in some discussion concerning some elements of the factual background to this application for an adjournment. The discrepancies in the information were resolved and I proceeded on the following factual basis.

The hearing of the preliminary issue of whether the Applicant suffered a catastrophic impairment was scheduled for eight days starting September 26, 2011. Through no fault of the parties or myself the hearing did not start until the afternoon of September 27. Before I opened the hearing, the Applicant asked for an adjournment of the hearing on the grounds that because of the delay in starting the hearing, his medical witnesses were no longer available to testify at the times he wanted them to testify. Counsel for the Applicant intended to call three or four medical witnesses before calling the Applicant to testify. He wanted a psychologist who had treated the Applicant and provided an assessment to testify first. The Applicant agreed to exclude himself from the hearing while the medical witnesses gave their testimony.

Law:

The few cases that deal with this issue note that usually the claimant testifies first and that is preferable. The decisions have gone both ways. In Vanderloo v. Dodge,² Haines J. was “reluctant to interfere with the responsibility which . . . is borne by counsel to call the witnesses in the order which they think is most appropriate.” In Mizzi v. DeBartok,³ Dunnet J. wrote that the plaintiff was a key witness and “He is claiming damages and should have the opportunity to tell his story however best he can at the outset of the trial.”

Analysis:

I do not agree with the Insurer that the applicant is always the best person to provide a background to his case. Some physical injuries result in significant psychological impairments. The claimant may not understand his psychological impairment or express it as well as a psychologist who has assessed him. The claimant’s psychological impairment may not be clear after he testifies. Therefore, it sometimes helps to understand the psychological impairment before the party testifies. The psychologist’s testimony may provide a background for the claimant’s testimony.

Nor do I agree that the Insurer is prejudiced in its cross-examination of a medical expert without having admissions gained previously from the testimony of the claimant. The claimant has usually undergone multiple assessments before the hearing which the parties have exchanged and the insurer is aware of the facts on which the expert opinions are based. If the subsequent testimony of the claimant reveals relevant and probative facts which the expert assessor was not aware of, the expert’s opinion may be less reliable. A hearing arbitrator may be reluctant to allow the applicant to recall the expert to comment on the new evidence where the applicant has chosen to testify after his experts. If anyone is prejudiced, it may be the applicant.

The Practice Note⁴ on adjournments directs me to consider “. . . valid reasons relating to the hearing itself, such as an imminent settlement, or medical or other critical evidence that is unavoidably delayed.” The evidence of the psychologist in this case is critical evidence that is unavoidably delayed.

According to Rule 1.1 of the Code, the “Rules will be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.” Although adjourning this hearing does not produce the quickest and least expensive resolution of the dispute, I believe that it produces the most just result given what I believe is the important role counsel play in this process and their responsibility to present their witnesses in the order which they think is best.

EXPENSES:

The parties did not make any submissions with respect to expenses. This matter is reserved to the hearing arbitrator.

October 18, 2011

William J. Renahan

Arbitrator

Date