Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 113
Appeal P13-00005
OFFICE OF THE DIRECTOR OF ARBITRATIONS
JEVCO INSURANCE COMPANY Appellant
and
BEATRICE JONES Respondent
BEFORE: David Evans
REPRESENTATIVES: Frank Benedetto for Jevco Insurance Company John Richard Thomson for Ms. Jones
HEARING DATE: By written submissions received by August 6, 2013
PRELIMINARY APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Leave to file fresh evidence in this appeal is refused and any references thereto in Ms. Jones’ Written Submissions on Appeal are struck.
August 23, 2013
David Evans Director’s Delegate Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Jevco Insurance Company appeals the preliminary issue decision of Arbitrator Alves dated January 21, 2013.
II. BACKGROUND
Ms. Jones was injured in a motor vehicle accident on December 14, 2005 and claimed statutory accident benefits from Jevco payable under the SABS–1996.1 A dispute arose about her entitlement to certain benefits. At the arbitration pre-hearing discussion, she sought production of Jevco’s entire file in relation to the accident. Jevco claimed solicitor/client or litigation privilege with respect to some documents.
Jevco appeals the Arbitrator’s order that it is required to produce documents showing the dates on which reserves were set and with respect to whom and the date(s) on which those reserves were adjusted, copies of surveillance reports prior to a determination by Jevco that it intends to rely on all or part of them, and certain investigative reports, notwithstanding that the reports were prepared in relation to potential tort claims and not claims for statutory accident benefits.
On March 28, 2013, I exercised my discretion to accept this appeal from a preliminary or interim arbitration decision and stayed the Arbitrator’s orders pending the appeal. I then set out time lines for written submissions.
This order concerns Ms. Jones’ request that fresh evidence be included in the appeal record.
III. ANALYSIS
As part of its reply submissions, Jevco objected to the inclusion of materials in Ms. Jones’ written submissions that were not part of the record before the Arbitrator. On June 17, 2013, I wrote to the parties as follows:
Further to the submissions I have received from the parties, I note that Rule 56.4 of the current Dispute Resolution Practice Code provides that “The appeal record includes the Notice of Appeal, the Response to Appeal, the written submissions of the parties, and the record of the arbitration hearing, including all arbitration exhibits….”
Thus, documents that were not before the Arbitrator are not a part of the appeal record.
The exception is if the further documents meet the “fresh evidence” rule. We have a number of cases on point. For instance, in Hayward and Royal & SunAlliance Insurance Company of Canada, (FSCO P11-00026, March 6, 2013), I rejected Mr. Hayward’s request to file additional evidence and provide viva voce evidence. See also M.M. and Aviva Canada Inc., (FSCO P11‑00030, December 10, 2012), which has a heading devoted to fresh evidence.
I note that it is also unusual for Respondents to seek to file fresh evidence.
The following criteria for admitting fresh evidence, as set out by the Supreme Court in Palmer v. The Queen, [1980] l S.C.R. 759, have been adopted on appeal in cases such as Plows and Jevco Insurance Company, (OIC P-000175, P-000588, May 22, 1992) and Budd and Personal Insurance Company of Canada, (FSCO P99-00032, January 8, 2000):
The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
The evidence must be credible, in the sense that it is reasonably capable of belief;
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; and
The evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Furthermore, as I discussed in Brookes and Aviva Canada Inc., (FSCO P09-00004, December 2, 2009), these criteria were set out when appeals were not limited to questions of law and specifically provided for a rehearing. Now, however, subsections 283(1) and (4) of the Insurance Act limit appeals to questions of law and the remedies do not include a rehearing. Therefore, these criteria should be more strictly applied.
Ms. Jones has included in her Factum of the Respondent a letter dated March 4, 2011 from the solicitors for the Insurer and a letter dated May 6, 2011 from the mediator involved in the mediation.
With respect to both letters, Ms. Jones submits that the letters could have been adduced at the motion hearing and were inadvertently not included in her arbitration submissions. She also submits that neither would have affected the result, although the March letter may have assisted the Arbitrator in determining solicitor/client privilege. That is why she also submits that the March letter is relevant in that it bears upon a decisive or potentially decisive issue in the motion. She submits that the May letter is also relevant (without further explication) but does not bear upon a decisive or potentially decisive issue in the motion.
Jevco does not dispute that the documents are reasonably capable of belief. Rather, it submits that both letters fail the first criterion, as they could have been adduced at the motion but for inadvertence: “Inadvertence alone might carry more weight if counsel were dealing with a long Hearing involving several documents and information. However, this motion dealt with a relatively pointed issue with limited documents and information.”
I find that the letter of May 6, 2011, as conceded by the moving party, fails most of the criteria. As for the letter of March 4, 2011, while it may have assisted the Arbitrator on the solicitor/client issue, it is also not determinative. Accordingly, leave to file fresh evidence in this appeal is refused and any references thereto in Ms. Jones’ written submissions on Appeal are struck.
I defer determining the expenses for this preliminary issue until after the appeal is heard.
August 23, 2013
David Evans Director’s Delegate Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.