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

Neutral Citation: 2015 ONFSCDRS 123

FSCO A11-003590 FSCO A11-003586

BETWEEN:

ANANTH SANMUGARAJAH Applicant

and

NORDIC INSURANCE COMPANY OF CANADA Insurer

Before: Dana M. Hirsh Heard: May 14, 2015, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on April 23 & 30, 2015. Appearances: Robert Plate for Mr. Sanmugarajah Darrell March for Nordic Insurance Company of Canada

Introduction:

The Applicant, Ananth Sanmugarajah, claims to have been injured in motor vehicle accidents on November 9, 2006 and February 2, 2007. He applied for and received statutory accident benefits from Nordic Insurance Company of Canada (“Nordic”), payable under the Schedule.¹ Disputes arose between the parties concerning certain benefits and they were unable to resolve these disputes through mediation. Mr. Sanmugarajah subsequently applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing commenced before Arbitrator James Robinson on April 22, 2014, and resumed on January 26, 2015. To date, there have been a total of approximately 8 days of hearing. The hearing is scheduled to resume again on June 15, 2015 before Arbitrator Robinson.

The crux of this interlocutory motion is whether or not a party who is relying upon an expert report has an obligation to produce that expert for cross-examination by opposing counsel on that report when requested to do so. During the main hearing, counsel for the Applicant, David Wilson, took the position that the Applicant was not required to make three of his expert witnesses (Dr. Harold Becker, Dr. Henry Rosenblat, and Sandy Sarkissian) available for cross-examination on their reports, and that Nordic was required to summons those witnesses to ensure their availability. Mr. Wilson also seeks a declaration that Nordic has an obligation to produce Dr. Maria Nesterenko for cross-examination on her report.

Issues:

Whether the Applicant has an obligation to produce Dr. Harold Becker, Dr. Henry Rosenblat, and Sandy Sarkissian for cross-examination on their reports.
Whether the refusal of the Insurer to advise whether Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian had been summoned by the Insurer, or to provide information regarding such notice, if any, should result in an order that they are not required to attend the hearing.
Whether Nordic has an obligation to produce Dr. Nesterenko for cross-examination on her report.
Whether either party is entitled to expenses of this motion.

Result:

The Applicant has an obligation to produce Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian for cross-examination on their respective reports.
The refusal of the Insurer to advise whether Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian had been summonsed by the Insurer, or to provide information regarding such notice does not relieve the Applicant of the obligation to produce these witnesses for cross-examination on their reports.
Nordic has an obligation to produce Dr. Nesterenko for cross-examination on her report.
The decision on the expenses of this motion is reserved to the hearing arbitrator.

EVIDENCE AND ANALYSIS:

Background

Normally, a hearing arbitrator would deal with such evidentiary issues as those raised in this motion. In this case, by letter dated April 13, 2015, Arbitrator Robinson ordered that any arbitrator could deal with these issues.² I have made orders that I deem appropriate based on the material filed, as well as the brief oral submissions the parties made before me on May 14, 2015. Given the interlocutory nature of this motion, I refer only to the relevant evidence and case law that I find to be persuasive. Any other issues arising with respect to this matter shall be dealt with by the hearing arbitrator.

Applicant’s Position

The Applicant takes the position that no obligation falls upon the party who is relying upon the report of an expert to ensure the availability of the expert. Moreover, he takes the position that the Insurer failed to comply with Rule 41 of the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014) (the “Code”). Rule 41.1 of the Code provides that each party must provide the other parties with the names of witnesses that the party intends to call and the names of persons the party requires to attend for cross-examination on a report, at least 30 days before the first day of the hearing.

Counsel for the Applicant submits that given the consumer protection nature of the legislation, it would be unfair for the Insured to bear the cost of ensuring that an expert witness is available should the other party wish to cross-examine the expert on a report.

Insurer’s Position

The Insurer submits that “[i]t is trite law that a party who intends to rely on a medical report in support of his case at trial bears the onus of producing the author of that report to be cross-examined by the opposing party.”³ The Insurer takes the position that because Rule 41 is silent on this issue, it is logical to import the foregoing principle of law into administrative proceedings, including FSCO. The Insurer states that sections 12 and 23 of the Statutory Powers Procedures Act, R.S.O. 1990, c.S.22 expressly permit a tribunal to order the attendance of witnesses.

1. Cross-examination of Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian on their Reports

(a) Rule 41 of the Code

On March 19, 2014, Applicant’s counsel, Mr. Wilson, wrote to the Insurer and said, among other things:

With respect to our expert witnesses, we will likely be calling Dr. Harold Becker, Dr. Henry Rosenblat, and Sandy Sarkissian to give evidence. We may, however determine that we will rely upon their reports. A decision in this regard will not likely be made until a week or two before the hearing. I regret not being able to be more precise.⁴

In response to Mr. Wilson’s correspondence, by letter dated March 26, 2014, counsel for the Insurer acknowledged receipt of the Applicant’s witness list, and demanded that his expert witnesses be made available for cross-examination purposes.⁵

Rule 41.2 of the Code provides that every party must notify a potential witness of the intention to call him or her to give evidence at the hearing at least 30 days before the first day of the hearing [emphasis added]. Since Mr. Wilson indicated in his letter to Nordic that he would likely be calling Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian, he should have notified them of the intention to call them at least 30 days before the first day of the hearing. I am unable to determine from the evidence before me whether or not he complied with this obligation.

Rule 41.1 of the Code requires a party to name the persons it requires to attend for cross-examination on a report. In his letter of March 26, 2014, Mr. March did not identify particular persons that the Insurer required to attend for cross-examination. Instead, he provided a general statement that the Insurer intends to cross-examine all expert witnesses on their reports. That being said, it is clear from Mr. March’s letter that he required Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian to attend for cross-examination purposes. Nordic was entitled to expect that they would be available for cross-examination. A change of mind by the Applicant just prior to or during the hearing should not have the effect of denying Nordic the right to cross-examine.

(b) Obligation to Produce an Expert Witness for Cross-Examination on a Report

The parties did not provide me with any FSCO decisions directly on point that deal with whose obligation it is to produce an expert witness for cross-examination on a report. That being said, both the Code and case law provide some guidance. The mere fact that Rule 41.1 differentiates between a party providing the names of witnesses that the party intends to call and the names of persons that the party requires to attend for cross-examination on a report provides some indication that it is the party relying on the report that bears the obligation of producing the witness for cross-examination on the report.

The parties rely on decisions of the Ontario courts which deal primarily with section 52 (or an earlier version) of the Evidence Act⁶, a section that provides for the production of written reports of medical practitioners, with leave of the Court.

Both parties refer to an Ontario Court of Appeal decision, Kapulica v. Dumancic⁷ (“Kapulica”). In Kapulica, Kelly, J.A. states as follows:

… the party tendering [a medical report] constitutes the medical practitioner who signs it his witness as fully as if he had produced him in Court and examined him under oath: consequently, that medical practitioner, if in the same trial brought into Court and placed in the witness-box, continues to be the witness of the party who tendered his report. He is subject to cross-examination not only upon his evidence given orally but also on the evidence given by means of the medical report in the same manner as he would have been if he had given oral testimony in the words of the report. The only restriction with respect to the cross-examination of the medical practitioner whose signed report has been admitted lies in the responsibility of the opposite party to bring that medical practitioner before the Court and the risk as to the cost which may be imposed upon him by virtue of s. 50a(2). [emphasis added]

It should be pointed out that the above statement is obiter as in Kapulica, the appeal turned upon the admission (pursuant to s.50a of the Evidence Act)⁸ of a medical report and the refusal of the learned trial Judge to provide counsel for the defendant an opportunity to cross-examine the medical practitioner who had signed the report. The appeal did not involve the issue of which party had the responsibility of getting the practitioner who authored the report filed to the Court to be cross-examined.

In Scime v. Yonge-Eglinton Building,⁹ a decision of the Ontario Superior Court of Justice (General Division), Caswell, J., referenced Kapulica, and confirmed that “there is an absolute right to cross-examine the doctor whose report is made available and is filed with the court.” He went on to point out that there is conflicting authority as to who bears the responsibility for obtaining the author of the report’s presence in court for cross-examination and paying any costs associated with the attendance.

There are two possible interpretations of the statements made by Appeals Justice Arthur Kelly in Kapulica about the production of witnesses for cross-examination. The first interprets the statement in Kapulica which provides “the responsibility of the opposite party to bring the medical practitioner before the court” to mean the obligation on one party to notify the opposite party that the party will require the attendance of the medical practitioner whose report has been filed for cross-examination.¹⁰ The second interpretation suggests that if a party wishes to cross-examine a party on a report, then the party who wants to cross-examine should bear the obligation to ensure the attendance of the expert witness at trial, and any expense related thereto.¹¹

None of these cases are binding upon me as they (a) deal with s.52 of the Evidence Act¹² which differs from FSCO’s Rules of Procedure, and (b) interpret obiter in Kapulica. Nevertheless, I prefer the first interpretation as it more consistent with the wording used in Rule 41.1 of the Code.

In the recent case of Andreason v. Thunder Bay (City),¹³ D.C. Shaw J., considered the relevant case law, including Kapulica¹⁴ and held that:

Once a party tenders the report as evidence, the author of the report becomes the witness of that party. The opposite party then has the right to require the party tendering the report to produce the author of the report at trial for cross-examination.¹⁵

This was also a decision of the Ontario Superior Court of Justice and dealt with section 52 of the Evidence Act.¹⁶ Nonetheless, I find this reasoning to be persuasive and that the same principle applies to the present case. In essence, since the Applicant is tendering the reports of Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian as evidence, those experts are the Applicant’s witnesses, and Nordic has a right to require the Applicant to produce them for purposes of cross-examination on their reports.

(c) Rule 81 of the Code

With respect to the failure of the Insurer to comply with the time requirements set out in Rule 41.1 of the Code, Rule 81 of the Code states, in part, that an arbitrator may, on such terms as he or she considers just, set aside any time limit in the Rules for doing any act, serving any notice or filing any document, or decide that any Rule does not apply in respect of a proceeding. In the interest of fairness, I am prepared to waive the time requirements provided in Rule 41.1 and provide the Insurer with the opportunity to cross-examine Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian, as a denial of that right would amount to a denial of natural justice and result in prejudice to the Insurer.

(d) Costs of Expert Witness

With respect to which party must initially bear the cost of having an expert witness testify, the only obligation upon the party serving a summons is to pay the same fees or allowances as are paid to a person summonsed to attend before the Ontario Superior Court of Justice (“conduct money”).¹⁷ Should the party relying upon their evidence choose to pay the expert witness more than the conduct money to prepare for, and attend at the hearing, then the party who pays that witness may seek to be reimbursed some of all of that disbursement at the conclusion of the hearing when expenses are determined in accordance with the Expense Regulation.¹⁸ Should the hearing arbitrator determine that the expert witness’ attendance was unnecessary or unduly prolonged the hearing, that can also be taken into account in deciding the appropriate expense order.

2. Refusal of Insurer to Advise Whether Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian had been Summonsed

The Applicant asked the Insurer to advise whether Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian had been served with summonses on behalf on the Insurer. The Insurer refused to provide the requested information.¹⁹

Clearly, this information is not in the exclusive possession of the Insurer, and Applicant’s counsel could have sought this information directly from Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian. The Applicant sought an order compelling the Insurer to disclose the dates upon which the Insurer served summonses to witness upon the Insured’s witnesses. In a letter to both counsel dated April 2, 2015, Arbitrator Robinson has already declined to make such an order.²⁰

Having concluded (for the reasons stated above) that it is the Applicant’s responsibility to arrange for the attendance of Dr. Becker, Dr. Rosenblat, and Sandy Sarkissian, I decline to interfere with the decision of Arbitrator Robinson. The Applicant’s responsibility exists regardless of whether or not the Insurer provided notice and/or summonsed these expert witnesses to attend at the arbitration hearing. As such, I find that the Insurer’s refusal to provide such information does not relieve the Applicant of the obligation to produce these witnesses for cross-examination on their reports.

3. Cross-examination of Dr. Nesterenko on her Report

Dr. Nesterenko issued a report dated March 26, 2013 in response to a treatment plan (in issue) dated February 25, 2013.²¹ On February 11, 2014, Mr. Wilson wrote to counsel for the Insurer (Mr. March) to find out if he had made a decision regarding the witnesses he intended to call to give evidence-in-chief. Mr. Wilson notified Mr. March that he wanted to examine Dr. Nesterenko.²²

Although the Insurer’s written submissions indicate otherwise,²³ at the hearing of this motion, the parties advised me that Dr. Nesterenko’s report dated March 26, 2013 is included in Nordic’s brief of documents, and that it has been accepted into evidence.

Based upon the foregoing information provided to me at the motion, since Nordic is relying upon Dr. Nesterenko’s report, I find that pursuant to Rule 41, the Applicant has a right to require Nordic to produce Dr. Nesterenko at the hearing for the purpose of cross-examination on her report. To the extent necessary, I would again rely upon Rule 81 of the Code and exercise my discretion to waive the usual time requirements set out in Rule 41.

EXPENSES:

The issue of the expenses of this motion is reserved to Arbitrator Robinson.

June 9, 2015

Dana Hirsh Arbitrator