Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 125

FSCO A10-002372

BETWEEN:

LAAVANYAN SANGARALINGAM

Applicant

and

INTACT INSURANCE COMPANY

Insurer

Before: Arbitrator John Wilson

Heard: June 29, 2012, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: David S. Wilson for Mr. Sangaralingam William M. Sproull for Intact Insurance Company

Issues:

The Applicant, Laavanyan Sangaralingam, was injured in a motor vehicle accident on March 5, 2005. He applied for and received statutory accident benefits from Intact Insurance Company (“Intact”), payable under the Schedule.

The parties were unable to resolve their disputes through mediation, and Mr. Sangaralingam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Sangaralingam required to make himself reasonably available for a further catastrophic psychiatric examination by Dr. Gnam in place of that already conducted by the late Dr. Shapiro?

Result:

Absent the consent of Mr. Sangaralingam, there should be no new psychiatric examination to replace that done by Dr. Shapiro.

EVIDENCE AND ANALYSIS:

The late Dr. Serge Shapiro conducted a psychiatric assessment of Mr. Sangaralingam in the context of a catastrophic assessment conducted by Dr. Rehan Dost, Ranya Ghatas and Dr. Shapiro.

Dr. Shapiro’s report was issued on April 15, 2010 and found that Mr. Sangaralingam was rated as “mild to moderate” across all four spheres of function as defined in the AMA Guides. Consequently it was Dr. Shapiro’s opinion that Mr. Sangaralingam was not catastrophically impaired.

Dr. Shapiro subsequently reviewed a rebuttal report by Drs. Kaplan and Armilio and issued a further report dated November 9, 2010 in which he reiterated his previous opinion as to catastrophic impairment.

Dr. Shapiro is said to have passed away around September 10, 2011.

A motion in this matter was heard on Friday, June 29, 2012. The relief requested related to Intact’s request to schedule a new psychiatric assessment by Dr. Gnam in place of that already conducted by the late Dr. Shapiro.

Mr. Sangaralingam was not inclined to consent to a further examination. Intact therefore requested that the arbitration be stayed pending his attendance at the proposed examination.

As noted earlier, Dr. Shapiro’s assessment formed part of a multidisciplinary evaluation. At the beginning of his report, Dr. Shapiro observed:

Please note that the formulation of a final consensus team opinion concerning the SABS threshold definitions for catastrophic impairment requires several steps of which this is only the first. After completions (sic) of individual clinical evaluations, the team members will then review all other team reports; this will lead to development of a list of traumatic impairments, and ratings of severity, to be applied to the SABS. The final opinion as to whether the Evaluee has sustained catastrophic impairment according to the clause(s) of the SABS requested by the referring party, will be presented in a consensus summary report that will reflect the consensus views of the team.

Thus Dr. Shapiro’s psychiatric evaluation was intended to form only part of a composite opinion as to capacity that depended on interaction between the various assessors to reach a consensus opinion.

What is being proposed here is that a contributing element to the consensus opinion be withdrawn and replaced by a new report by Dr. Gnam, without any further interaction with other assessors. Thus the resulting report would be qualitatively different from that already relied upon by Intact.

Intact suggests that, given Dr. Shapiro’s demise, a new psychiatric assessment should be both reasonable and virtually automatic. I disagree.

Unlike counsel for Intact I do not accept that the decision of the Divisional Court in Certas Direct Insurance Company v. Gonsalves¹ gives an insurer carte blanche to request I.E.’s at any point in the process, without any evidence of compliance with the Schedule. Rather it focuses on fairness issues — that of not permitting a party to respond to a new report filed on the last possible date before arbitration. In this matter, even the fairness analysis points in a different direction.

Mr. Sangaralingam points out that of the two parties, he stands to be most prejudiced by the death of Dr. Shapiro, since his report may be admitted, but the maker of the report will not be available for cross-examination. Mr. Sangaralingam is prepared, however, to waive that right to cross-examine the maker of the report.

More importantly, Mr. Sangaralingam states that Intact has brought no affidavit or viva voce evidence in support of its motion to support the contention that the proposed examination is in accordance with the pre-conditions set out in section 44(1) of the Schedule, and that the examination is “not more often than is reasonably necessary.”

While it may seem pedantic to insist on an evidentiary base for a decision when counsel in his submissions made the point that an inference can be drawn from the documents and his own submissions that the request for a further examination was in order, I do not accept that such an inference should be drawn.

As for the wisdom of relying on counsel’s submissions as an evidentiary base, I defer to the commentary on Rule 4.02(2) of the Rules of Professional Conduct which states:

A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer’s own credibility in issue.

I find, therefore, that Intact should have not relied on counsel’s submissions in support of its motion, and should properly have provided proper evidentiary support for its request.

Although that alone would deal with the present motion, I should comment that it is not self-evident that the death of Dr. Shapiro requires a new report. The assessment process was completed and an opinion rendered. Assuming compliance with the disclosure and timing requirement, the report would be admissible.

A further assessment as proposed would of necessity be different since it would not involve the consensus process followed by Dr. Shapiro. It would of course also allow Intact a “second kick at the can” to correct any weaknesses that might in retrospect have been apparent in Dr. Shapiro’s assessment process.

There is no question that under the rules of evidence applicable to arbitrations, Dr. Shapiro’s report would be admissible in the process. Indeed copies have been provided to opposing counsel well before the deadlines set in the Dispute Resolution Practice Code.

The Dispute Resolution Practice Code at Rule 42.1 envisages the routine filing of reports, with the authors being made available for cross-examination on request. While the lack of cross-examination might potentially prejudice Mr. Sangaralingam, he has indicated that he will waive that option.

Intact had also referred to the need for a psychiatric assessor to be informed of new surveillance and other evidence purporting to show the presence of Mr. Sangaralingam in a workplace. While such evidence, if true, may adversely affect the credibility of Mr. Sangaralingam, and may properly be put to the Applicant’s experts in cross-examination, the appropriate response is not necessarily to commission a new psychiatric report. Indeed, it would be unlikely to change the negative impression Dr. Shapiro had of entitlement in his report.

Rather, the new evidence of employment adverted to by counsel for Intact, can be provided to and considered by the presiding arbitrator, who is tasked with the ultimate decision of whether or not Mr. Sangaralingam meets the criteria for catastrophic impairment.

Consequently, for all the above reasons, I find that, absent the consent of Mr. Sangaralingam, there should be no new psychiatric examination to replace that done by Dr. Shapiro.

Given my finding, there is no need to consider the request to stay this matter.

EXPENSES:

Should the parties be unable to agree on the issue of expenses I may be spoken to on that issue, provided notice is given on a timely basis.

August 16, 2012

John Wilson Arbitrator

Date