Terry Morrow v. Economical Mutual Insurance Company, 2012 ONFSCDRS 87

Neutral Citation: 2012 ONFSCDRS 87

FSCO A11-002745

BETWEEN:

TERRY MORROW Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

DECISION ON PRELIMINARY ISSUES

Before: Judith Killoran

Heard: May 28, 2012, in Ottawa, Ontario

Appearances: Raymond Murray for Mr. Morrow Lee Samis for Economical Mutual Insurance Company

Issues:

The Applicant, Terry Morrow, was injured in a motor vehicle accident on November 16, 2007. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Morrow applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

ADJOURNMENT REQUEST

The hearing before me was scheduled to proceed on May 25, 26, 27, and 28, 2012. The issues in dispute which were identified and agreed to at the pre-hearing on October 17, 2011 were as follows:

Did Mr. Morrow sustain an impairment within the meaning of section 2(1.2) (f) and (g) or section 2(1.2) (g) of the Schedule as a result of the accident?
Is Economical liable to pay a special award, pursuant to subsection 292(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Morrow?
Is either Economical or Mr. Morrow liable to pay the other’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Morrow entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

At the outset of the hearing, the parties requested an adjournment of the substantive issues to allow sufficient time for a global mediation to address all issues in dispute, including those in a parallel proceeding which involves the same insurer. However, the parties requested that I rule on some preliminary issues, involving productions and witnesses, in the event that they proceed to hearing.

I adjourned the hearing, on consent, to June 25, 26, 27, 28, and 29, 2012. I found the submissions of the parties to be compelling regarding their desire not to duplicate resources and proceedings and to move forward in the most just, expeditious fashion to resolve all disputes. The parties indicated that they are available for a global mediation on June 6, 7, 8, 11, 12, 15 and 21, 2012. A case administrator from FSCO will be following up with the parties to monitor their progress.

I also found that it was important to hear submissions on a number of production and witness issues to contribute to the streamlining of the hearing in June, if the parties should find it necessary to proceed. The parties agreed to the terms of a standstill agreement with respect to evidence or documents for the potential hearing. That is, the parties agreed that if there was any dispute about evidence or documents as of May 25, 2012, applications for leave or extensions would only apply with respect to requests and issues in dispute as of May 25, 2012.

The parties agreed and I ordered that the following issues shall be added to the subject matter of the arbitration scheduled for June, as follows:

Is Mr. Morrow entitled to attendant care benefits from November 16, 2009 to July 25, 2011 in the amount of $4,719.64 monthly pursuant to the Attendant Care Needs (Form 1) by Cameron St-Germain dated March 31, 2009; and from July 26, 2011 and ongoing in the amount of $2,845.29 monthly pursuant to the Functional Re-Assessment of Attendant Care Needs (Form 1) by Cameron St-Germain dated July 26, 2011?
Is Mr. Morrow entitled to housekeeping and home maintenance benefits in the amount of $100 weekly from November 16, 2009 and ongoing?

WITNESS LISTS

Mr. Morrow confirmed his witness list for the arbitration hearing, as follows:

Terry Morrow – the applicant
Lynn-Marie Marchand – spouse of Mr. Morrow
Dr. Andrew Payne - psychologist
Dr. Ken Reesor - psychologist

Economical confirmed its witness list for the hearing, as follows:

Dr. Ken Suddaby - psychiatrist
Mr. Bruce Webster – chartered accountant – Economical will confirm within 7 days whether it intends to call Mr. Webster.
Dr. Alborz Oshidari - physiatrist and Mr. Ray Ramsarran - accident benefit claims specialist for Economical. Economical reserves the right to call both but was not willing to confirm whether it would call either.
Surveillance Investigators - Mr. Mike Trudell, Ms. Meredith Westlake, and Mr. Craig Campbell (Forensic Investigations Canada). Economical will confirm within 7 days whether it intends to call them as witnesses and Mr. Morrow will confirm whether he requires them to attend for the purposes of authentication and cross-examination.

Economical undertook to report back to Mr. Morrow, within 7 days, with respect to the following requests:

Economical will advise whether it plans to file Dr. Hirschberg’s report. If so, Mr. Morrow requests that Dr. Hirschberg be made available for cross-examination.
Economical will advise if it is filing Bruce Webster’s report without calling him as a witness.
Economical will advise if it has any issues with the filing of Cameron St-Germain’s report.
Economical will advise whether it objects to the filing of a second addendum to Dr. Reesor’s report.
Economical will advise whether it intends to call the surveillance witnesses. If not, Mr. Morrow will advise whether he requires them for the purposes of cross-examination.

Dr. A. Oshidari

Dr. Oshidari, a physiatrist, has been qualified in other proceedings, as an expert in physical impairments. He examined Mr. Morrow on the insurer’s behalf for the purpose of determining his physical impairments. However, Economical disclosed less than 30 days in advance of the hearing that it was not calling him. Economical submitted that if Mr. Morrow wants to make his case, his responsibility is to lead evidence from Dr. Oshidari.

Mr. Morrow submitted that Economical is obliged to call Dr. Oshidari for the purposes of cross-examination, even if Economical decides not to rely on his reports. Mr. Morrow notes that Dr. Oshidari’s report is in Economical’s arbitration brief. It was not until Thursday, May 24, 2012 that Mr. Morrow claimed that he was informed that Economical was not calling Dr. Oshidari and not filing his report.

Economical submitted that if it does not call Dr. Oshidari, Mr. Morrow has other options such as treating him as an adverse witness. Mr. Morrow responded that he relied on the expectation that he would be called as an expert witness by Economical. Otherwise, he would have retained a physiatrist. In Mr. Morrow’s opinion, the rules of natural justice would be violated if Economical did not make Dr. Oshidari available for the purposes of cross-examination.

At the pre-hearing on October 17, 2011, Economical listed Dr. Oshidari as its expert witness and it was not until days before the arbitration hearing that Economical informed Mr. Morrow that he would not be called. Economical has an obligation to make Dr. Oshidari available even if it is not relying on his report. Mr. Morrow has prepared for the arbitration hearing with the expectation of his availability for cross-examination.

I order that Economical make Dr. Oshidari available for the purposes of cross-examination by Mr. Morrow at the arbitration hearing.

Mr. Ray Ramsarran – Accident Benefits Claim Specialist

Economical reserved the right to call Mr. Ramsarran if there is evidence to which Economical needs to respond. However, Economical objected to making arrangements to guarantee Mr. Ramsarran’s availability for the purposes of cross-examination.

Mr. Morrow submitted that Economical should have arranged to have Mr. Ramsarran available as a witness to be cross-examined, especially as the particulars of the special award claim were pleaded in the Application for Arbitration. Mr. Murray pointed out that he cannot call Mr. Ramsarran or prepare him as his witness in chief as Mr. Ramsarran is a party to the matter.

I order Economical to make Mr. Ramsarran available for the purposes of cross-examination at the arbitration hearing. His evidence is relevant and possibly essential with respect to the issues in dispute.

Production of Economical’s file

The Applicant requested his complete file from Economical until the date of the Application for Mediation. A special award claim was made in the Application for Arbitration dated August 10, 2011. Numerous letters were sent on the Applicant’s behalf requesting the file in 2011 and 2012. On April 27, 2012, 30 days before the date of the arbitration hearing, Economical produced to Mr. Morrow a heavily redacted file with no dates or explanations for the redactions.

Economical submitted that the productions which were requested needed to be related to a benefit in dispute. However, the parties have now confirmed that the claims for housekeeping and attendant care are to be added to the arbitration hearing. Further, Mr. Morrow submitted that the claims for a catastrophic designation and a special award warrant an overall assessment of the entire file and how it was handled. I agree.

I order that Economical shall provide to the Applicant its complete file until the date of mediation, less any reserve information, subject to any claims of privilege. If Economical makes any claims of privilege, it shall provide details of the privilege claimed.

I remain seized of this matter and I intend to preside at the substantive hearing which is scheduled for June 25, 26, 27, 28, and 29, 2012 in Ottawa.

Judith Killoran Arbitrator

Date

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.