Allstate Insurance Company of Canada v. Tara Basra, 2013 ONFSCDRS 59

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2013 ONFSCDRS 59

Appeal P13-00003

Appellant

and

Respondent

BEFORE:

David Evans

Shawn Stringer for Allstate Insurance Company of Canada

Savannah Chorney for Mr.Tara Basra

By teleconference April 24, 2013

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Pursuant to Rules 50.2 and 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition, Updated August 2011), this appeal from the Arbitrator’s December 19, 2012 oral rulings made during an arbitration hearing is rejected on the basis that the appeal is from a preliminary or interim arbitration order that does not finally decide the issues in dispute.
If the parties are unable to agree on the legal expenses of this present appeal, an expense hearing shall be requested pursuant to Rule 79.1 of the Code, as set out below, within thirty days of the date of this decision.

May 10, 2013

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Tara Basra claims income replacement benefits and housekeeping and physiotherapy expenses from Allstate Insurance Company of Canada under the SABS–1996.¹ Allstate seeks to appeal Arbitrator Fadel’s rulings made during the arbitration hearing (resuming July 23 and August 12, 2013).

II. BACKGROUND

The Arbitrator’s rulings dealt with the application of deadlines. The Dispute Resolution Practice Code, Fourth Edition, sets a 30-day deadline before an arbitration hearing for serving and filing documents such as experts’ reports and assessments (R. 39), surveillance evidence (R. 40), witness lists (R. 41), and summaries of expert witness testimony (R. 42). Allstate appeals the Arbitrator’s exclusion of its surveillance under R. 40 when he did not exclude Mr. Basra’s expert witness under R. 42.

On December 17, 2012, at the start of the hearing, Mr. Basra successfully moved to exclude Allstate’s surveillance evidence for not providing the investigator’s handwritten notes as required in R. 40.1.

Allstate then moved to exclude expert reports Mr. Basra had served late. When the Arbitrator ruled that, while the surveillance and report deficiencies involved two different rules, he was prepared to grant an adjournment to cure the deficiencies in service, Mr. Basra withdrew his request to file those reports. The Arbitrator then confirmed the surveillance exclusion.

On December 19, 2012, Mr. Basra called Dr. Ogilvie-Harris to testify, who had prepared two expert reports. On examination in chief, Dr. Ogilvie-Harris testified that his first report of July 2012 contained a complete list of the legal instructions and documentation provided by Mr. Basra’s counsel and a CD of the medical research and materials he had relied upon. These materials had not been served upon Allstate. Likewise, his second report of November 2012 had a similar CD that was also not served. Allstate objected to Mr. Basra relying upon these reports and calling Dr. Ogilvie-Harris to testify at the hearing because of alleged non-compliance with the Code. The Arbitrator overruled the objection, noting that “If counsel would like in Cross-Examination, she can refer [Dr. Ogilvie‑Harris] to documents she felt he should have referred to, and we can get his comment on why he didn’t include that in the body of his report.”²

Allstate seeks leave to appeal these rulings and to stay the hearing.

III. ANALYSIS

The general timeline for “documents, reports (including experts’ reports) and assessments to be introduced at a hearing by either party” set out in R. 39.1 requires these to be “served on the other party at least 30 days before the first day of the hearing,” although R. 39.2 provides an exception “in extraordinary circumstances.”

Surveillance evidence is subject to its own 30-day rule. Rule 40.1(b) of the Code states that, if a party intends to rely on any portion of surveillance evidence, at least 30 days before the hearing the party shall provide “copies of all videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute.” Unlike R. 39, there is no exception for “extraordinary circumstances.”

The same 30-day timeline applies to providing the names of witnesses (R. 41) and the document setting out an expert witness’s opinion (R. 42.2). Non-compliance may lead to the witness’s exclusion, but the arbitrator may make “such other order as the arbitrator considers just” (Rules 41.3(b) and 42.3). While the reports of Dr. Ogilvie-Harris were served in time, Allstate alleges they were incomplete, and so R. 42 was not observed.

Allstate seeks leave to appeal because R. 50.2 provides that a party may not appeal a preliminary or interim order of an arbitrator until all the issues in dispute in the arbitration have been finally decided, unless the Director or his delegate orders otherwise. Rule 51.2(c), in turn, provides that an appeal from a preliminary or interim order that does not finally decide the issues in dispute may be rejected.

Delegate Makepeace, in Allstate Insurance Company of Canada and Torok, (FSCO P01-00021, May 29, 2001), held that the purpose of R. 50.2 of the Code is to

facilitate the most cost-effective resolution of disputes by minimizing the time and money spent on procedural or collateral matters. The decision whether to hear an appeal of a preliminary order is discretionary…. The over-arching principle guiding the exercise of the discretion is that the rule “should be broadly interpreted to produce the quickest, most just and least expensive resolution of the dispute.” The criteria to be considered include the apparent strength of the appeal, the importance or novelty of the issue raised, and whether rejecting the appeal or hearing it will prejudice either party.

Pursuant to these criteria, Allstate’s request to file an appeal is rejected at this time, without prejudice.

Allstate submits that if its appeal is not accepted, then there would be a full arbitration hearing that could still be the subject of an appeal on the same issue. If Allstate was successful, there would be a new arbitration hearing, so, Allstate submits, “Ensuring that a second hearing is not required would provide the quickest, most just and least expensive determination of the issues in dispute.” However, the same could be said of any decision about admitting or denying evidence into the record, leading to endless appeals and delays. Indeed, after the Arbitrator initially excluded the surveillance evidence, Allstate unsuccessfully asked him for an adjournment to instantly appeal his decision. As Director’s Delegate Blackman said in Nadesu,³ appeals should not “be seen as creating an express elevator between arbitration and appeal so that every interim or preliminary order can, on an expedited basis, be subject to immediate appellate review.”

Allstate submits that the appeal has strength, that the issue on appeal is both novel and important because of the allegedly differential treatment received by both sides, and that clarification is required “about whether all non-compliant evidence sought to be adduced by any party at the hearing should receive the same treatment.”

I disagree with this submission. First, considering an arbitrator’s discretion, it would not be appropriate to make some blanket ruling about how non-compliant evidence should be treated.

Second, the requirements for notice regarding expert testimony set out in R. 42.2 may well have been met in this case. Subject to the 30‑day timelines in Rules 39 and 41,

If a party intends to call an expert witness to present evidence at a hearing, that party must serve and file a document setting out the following:

(a) the full name, address and qualifications of the expert witness; (b) the subject matter of the testimony to be presented; and (c) the substance of the facts and opinion which the witness will present.

It is not clear how the reports of Dr. Ogilvie-Harris failed those requirements. Further, Allstate would have had the opportunity to question him on whether and how the missing material contributed to his opinions.

Finally, the Rules do not require equal treatment of all non-compliant evidence anyway. Thus, even if the reports did not comply with R. 42.2, R. 42.3 provides that “Where a party does not comply with the requirements of this Rule, an arbitrator may exclude a witness from the hearing or make such other order as the arbitrator considers just.” By way of contrast, as noted above, documents or reports that are filed late may be admitted only in exceptional circumstances, and there is no exception at all for late surveillance evidence (other than the general waiver in R. 81.1). The Rules thus treat non-compliant evidence differentially depending on whether it is viva voce, documentary, or surveillance. Allstate has drawn a false parallel between Dr. Ogilvie-Harris’s reports being possibly non-compliant in circumstances where he was testifying, and its non-compliance with providing the investigator’s notes. The Arbitrator had the specific power in R. 42.3 to make a non-exclusionary ruling that he considered just, which he did. There was no equivalent requirement for him to treat Allstate’s evidence the same way.

Therefore, I find that the appeal has little strength.

In conclusion, I find that accepting this appeal would not produce the quickest, most just and least expensive resolution of the dispute, that the apparent strength of the appeal is weak, that no important or novel issues are raised, and that hearing the appeal would prejudice Mr. Basra by further delaying a determination of his claims that have been pending since November 2009.

The appeal is therefore rejected.

IV. EXPENSES

If the parties cannot agree on the legal expenses of this appeal, pursuant to R. 79.1 of the Code an expense hearing shall be requested within thirty days of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as submissions on any disputed entitlement or quantum expense issues.

May 10, 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.
Transcript of Arbitration Hearing, December 19, 2012, at p. 24, lines 20-23.
Zurich Insurance Company Ltd. (Commercial Business) and Nadesu, (FSCO P11-00031, January 23, 2012).