Neutral Citation: 2017 ONFSCDRS 14 FSCO A15-008640

BETWEEN:

BEULAH LAFONTAINE Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Maggy Murray Heard: December 15, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Ian Little for Ms. Lafontaine Darrell March for State Farm Mutual Automobile Insurance Company

Background:

The Applicant, Beulah Lafontaine, was the spouse of the late Paul Lynn. Mr. Lynn was in a motor vehicle accident on June 14, 2014 and died a week or so later.

An application was made for death benefits to be paid to Ms. Lafontaine, Mr. Lynn’s spouse. State Farm did not pay death benefits under s. 26(2) of the Schedule.¹

The parties were unable to resolve their disputes through mediation, and Ms. Lafontaine applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Ms. Lafontaine precluded from testifying at this Hearing?

Result:

Ms. Lafontaine is not precluded from testifying at this Hearing.

EVIDENCE AND ANALYSIS:

On December 15, 2016, I gave the parties my oral ruling on the issue of whether Ms. Lafontaine is precluded from testifying at this Hearing.

The issues in this Hearing are whether Ms. Lafontaine is entitled to a death benefit in the amount of $25,000.00 in respect of the death of her spouse, Paul Lynn, expenses and interest.

First Adjournment:

The pre-hearing was conducted on February 24, 2016. Within a month of the pre-hearing, by letter dated March 15, 2016, the Applicant’s counsel advised that she wanted to adjourn this matter because her “75 year old client did not recall that she would be away” on the date originally selected for this Hearing. The Insurer advised that it did not consent to this adjournment but did not give any reasons for not consenting. Arbitrator Alves dealt with the Applicant’s adjournment request and adjourned the Hearing to August 18, 2016 for reasons that include the Insurer not alleging any prejudice that would be caused by granting the adjournment to a date when the Applicant was available.

Second Adjournment:

By letter dated July 13, 2016 the Insurer requested that this matter be adjourned because the Insurer’s counsel was “on vacation with his family”. The Applicant consented to this adjournment request and the Hearing was adjourned from August 18, 2016 to December 13, 2016.

Third Adjournment:

By letter dated December 12, 2016, the Insurer’s counsel advised that he needed to adjourn this Hearing because he was “feeling under the weather”. The Applicant consented to the Insurer’s adjournment request. I granted the adjournment and the parties agreed that the Hearing be rescheduled to December 15, 2016.

Ruling Regarding Applicant Testifying:

When this Hearing commenced on December 15, 2016, Mr. Little advised that Ms. Lafontaine, the Applicant in this matter, would be his only witness.

State Farm objected to Ms. Lafontaine giving evidence because:

(i) Mr. Little had not complied with the agreement outlined in the pre-hearing letter dated February 24, 2016 that the parties provide “each other with a list of their anticipated witnesses at least sixty (60) days prior to the commencement of the hearing (p. 3)” and

(ii) Rule 41 of the Dispute Resolution Practice Code – Fourth Edition requires that the parties disclose to each other the names of the witnesses they intend to call to testify at least 30 days before the hearing.

Mr. March, on behalf of the Insurer, confirmed that:

(i) He had prepared a cross-examination of the Applicant; and

(ii) The Insurer was not claiming any prejudice “at this time” if the Applicant testified.

The parties were given an opportunity to provide me with a case dealing with a situation where an Applicant was not permitted to testify because the opposing party was not notified that they would give evidence. Neither party could refer me to any case law on this point.

Ruling:

I ruled that Ms. Lafontaine can testify. The reasons for this are:

(i) The Insurer was prepared for her to testify. Its counsel had prepared his cross-examination of her and would therefore not be taken by surprise;

(ii) This was a procedural point which would decide the case, and, in fairness to both parties, the Applicant should be permitted to give evidence. That is, “the individual or individuals affected should have the opportunity to present their case fully and fairly.”²

(iii) The insurer did not request an adjournment if the Applicant was permitted to testify;

(iv) Section 23.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, gives an adjudicator the duty to control the arbitration process;

(v) Rule 81 of the Code allows an arbitrator to set aside any time limit, on such terms as the adjudicator considers just;

(vi) Rule 41.3(b) of the Code allows an arbitrator to make such orders regarding witnesses as the arbitrator considers just.

Resumption of Hearing:

The Applicant lives in Georgetown, Ontario. Due to the snowstorm on December 15, 2016, which became progressively worse during the afternoon, the parties agreed to resume this Hearing on January 23, 2017 at 10 a.m. at the Financial Services Commission of Ontario.

January 16, 2017

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario

FSCO A15-008640