Neutral Citation: 2014 ONFSCDRS 85 FSCO A08-001142

BETWEEN:

SUBASHINI YOGESVARAN Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Edward Lee Heard: By written submissions received August 30, 2013 Appearances: David S. Wilson for Ms. Yogesvaran Jonathan Schrieder for State Farm Mutual Automobile Insurance Company

A hearing in this matter was commenced by Arbitrator Miller. The hearing was conducted for four days, and then adjourned to continue later with six more hearing days scheduled by Arbitrator Miller. Arbitrator Miller never completed this hearing. In the four-day period during which the hearing was conducted, the examination-in-chief of the applicant, Subashini Yogesvaran, was completed, and her cross-examination was in process when the hearing was adjourned.

A pre-hearing discussion was later held before Arbitrator Killoran to determine how this matter would proceed after Arbitrator Miller did not complete the hearing. The parties considered whether the hearing would continue from its point of interruption, or whether some other process would be necessary.

ISSUES:

After the pre-hearing discussion, the parties were invited to provide submissions on the following issues:

Shall the new arbitrator be given for review a copy of the transcript of the incomplete hearing, with copies to the parties, pursuant to Rule 71 of the Dispute Resolution Practice Code?
Shall the rulings made by the arbitrator during the incomplete hearing be applied to the re-hearing?

RESULT:

This hearing shall be reheard from the beginning or recommenced de novo. The new arbitrator shall not be given a copy of the transcript of the incomplete hearing. In addition, State Farm shall not be permitted to use or introduce any part of the transcript of the incomplete hearing in any form in the rehearing of this matter.
Given my answer to question one, it is not necessary to answer question two.

ANALYSIS:

Written submissions were received by the parties in regard to the two questions posed at the resumption of the pre-hearing discussion.

1. Shall the new arbitrator be given for review a copy of the transcript of the incomplete hearing, with copies to the parties, pursuant to Rule 71 of the Dispute Resolution Practice Code?

At the pre-hearing discussion, at least one of the parties contemplated the possibility that this matter might be concluded in a hybrid process whereby a new arbitrator might be appointed to continue the hearing of the matter, proceeding from the point at which it had been interrupted and aided with the use of the transcript of what had previously occurred.

In its submissions, State Farm now requests a "fresh hearing", and argues that the new arbitrator should not be given a copy of the transcript of the incomplete hearing. In addition, to properly assess Ms. Yogesvaran's credibility and to make factual findings, the new arbitrator should be given the opportunity to observe the demeanour of Ms. Yogesvaran.¹

Ms. Yogesvaran, who apparently initially argued for the hybrid process, now suggests that Rule 71 of the Code may not provide for it, and having a procedure "reheard" means a hearing "started anew". Ms. Yogesvaran also submits that the new arbitrator should not be given the transcript of the incomplete hearing, and further, that State Farm should be prohibited from obtaining or using it in the rehearing of this matter.²

In addition, I note that the parties had initially agreed to provide a written list of all the procedural and interim rulings made by Arbitrator Miller during the four days over which the hearing had actually proceeded. At this point, neither party has provided any such document, and Ms. Yogesvaran has stated that it is not possible for her to provide such a document with any high degree of clarity.³

The parties appear to agree that the best way to proceed would be to start the hearing afresh. For many of the reasons cited in the parties' submissions (including the basic principle of natural justice, "He who hears must decide"), that is also my opinion. I also agree that Rule 71 suggests that an incomplete hearing may be "reheard" (i.e. commenced again from the start), but no explicit provision exists whereby a new arbitrator might continue a hearing from the point of interruption aided by a transcript of what had gone before.

Therefore, I am ordering this hearing to be reheard from the start and recommenced de novo. Further, the new arbitrator shall not be given a copy of the transcript of the incomplete hearing. In addition, State Farm shall not be permitted to use or introduce any part of the transcript of the incomplete hearing in any form in the rehearing of this matter.

2. Shall the rulings made by the arbitrator during the incomplete hearing be applied to the re-hearing?

Given my answer to question one, it is not necessary to address question two. The parties may resume the pre-hearing with me to set a date for the re-hearing of this matter.

The parties may resume the pre-hearing discussion before me to schedule further proceedings in this matter.

May 28, 2014

Edward Lee Arbitrator

Financial Services Commission of Ontario