Neutral Citation: 2017 ONFSCDRS 283 FSCO A10-003442

BETWEEN:

HAMIDE DERVISHOLLI Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

MOTION DECISION

Before: Anita Idemudia By written submissions

Counsel: Ben Fortino and Samia Alam for Ms. Dervisholli Kate Grieves for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Hamide Dervisholli, was injured in a motor vehicle accident on October 29, 2007 and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Dervisholli applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, as amended.

Background

A preliminary issue hearing was scheduled to take place from January 31, 2017 – February 8, 2017. The issue at the preliminary hearing was whether Ms. Dervisholli was involved in an accident within the meaning of section 3 of the Schedule.

At the commencement of the hearing, counsel for State Farm sought to tender their brief. The brief contained EUO transcripts of Roman Cervenak (the driver of the other vehicle involved in the accident) and his passengers — Veronika Cervenakova, Zdenka Cervenakova and Jiri Cervenak.

Ms. Dervisholli raised an objection on the admissibility of the transcript evidence on the basis that they had not been tested in cross examination. The parties agreed to wait until the conclusion of evidence to see if Roman Cervanak and his passengers would attend to give evidence.

Roman Cervenak and his passengers has been summoned by State Farm. The summons was dated November 24, 2016 and duly served in accordance with Rule 73 of the Dispute Resolution Practice Code (DRPC). The summons indicated that they were to attend to give evidence at this hearing on January 31, 2017 at 10:00 a.m. None of them attended.

At the conclusion of evidence of the other witnesses on February 1, 2017, Ms. Dervisholli revived her motion to exclude the transcripts, on the basis that the transcripts were never put to the Applicant during cross examination. Secondly, the applicant did not have an opportunity to cross examine the other driver and passengers, therefore, the transcripts cannot be relied upon by the insurer in their closing submissions.

The issue in this motion is:

Should the transcripts from the examination under oath of Roman Cervenak, Veronika Cervenakova, Zdenka Cervenakova and Jiri Cervenak be excluded from the record?

Result:

The transcript evidence of Roman Cervenak, together with his passengers (Veronika Cervenakova, Zdenka Cervenakova and Jiri Cervenak), will not be excluded from the record.

EVIDENCE & ANALYSIS

The Applicant:

Ms. Dervisholli argues that where counsel intends to impeach the credibility of a witness by calling independent evidence, the witness must be confronted with this evidence in cross examination while he or she is still in the witness box. Ms. Dervisholli characterised the failure to cross examine Roman Cervenak, Veronika Cervenakova, Zdenka Cervenakova, and Jiri Cervenak on the evidence given by them, in their examination under oath, as a breach of the evidentiary rule in Browne v Dunn.²

This proceeding is premised on the credibility of the applicant. State Farm alleges that Ms. Dervisholli wilfully misrepresented material facts with respect to her application for accident benefits. State Farm further alleged that Ms. Dervisholli was not involved in a motor vehicle accident on or around October 29, 2007 that directly caused an impairment.

Ms. Dervisholli submits that while the onus is on the applicant to show that an accident occurred, where wilful misrepresentation or fraud is alleged, evidence must be shown to support that allegation and the onus lies with the insurer.

Ms. Dervisholli's motion is premised on the following grounds:

a) Admitting the EUO Transcripts would violate the rule in Browne v. Dunn.

b) Cross Examination is a right of fundamental importance and a prerequisite for a fair trial.

c) That the Insurer requires consent to use the transcript obtained under a separate claim and has not provided such consent.

Ms. Dervisholli cited the following case law/legislation in support: Browne v. Dunn, Rizk and Isho and Allstate Insurance Company of Canada, Johnson and State Farm Mutual Automobile Insurance Company, Dervisholli et al. and Cervenak, Dervisholli and State Farm Mutual Automobile Insurance Company, Dispute Resolution Practice Code and the Statutory Powers Procedure Act.³

Ms. Dervisholli therefore urged me to exclude the EUO transcripts on the above basis.

The Insurer

State Farm agreed with the general principle in Browne v. Dunn, that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the evidence in cross-examination. However, it argued that the principles in Browne v. Dunn do not amount to a general or absolute rule but a matter of weight to be decided by the trier of fact and that the effect to be given to the absence of cross examination depends on the circumstances of each case.

State Farm relied on the following: Browne v. Dunn, Palmer v. R., R. v. Quansah, R. v. McNeill, Johnson and State Farm Mutual Automobile Insurance Company, and the Dispute Resolution Practice Code, Statutory Powers Procedure Act, Application for Accident Benefits– effective May 1, 2007.⁴

I found R. v. McNeill instructive in cases where there has been a breach or potential breach of the rule in Browne v. Dunn. In particular, that case addresses the options available to a party who feels aggrieved by the failure of opposing party to adhere to the rule. The court of appeal in that case, offered the following suggestions:

a) Explore the possibility of recalling the witness.

b) In cases where it is impossible or highly impracticable to recall the witness, the issue then becomes the weight to be given to the contradicted evidence

This hearing was scheduled for January 31 – February 3, 2017. Roman Cervenak, Veronika Cervenakova, Zdenka Cervenakova and Jiri Cervenak [incomplete]. The summons indicated that they were to attend to give evidence on January 31, 2017. They failed to attend.

Where a party does not attend or participate in a hearing, Rule 73.2 provides that a judge of the Ontario Superior Court may order that a warrant for the arrest of that person be issued or that the person be punished in the same way as for contempt of that court.

I informed the parties of the above provision. The onus of enforcing the summons lies with the party that issued the summons. State Farm therefore had the obligation of enforcing them. However, in practice, to refer this to the courts would almost certainly result in delay, which may very well necessitate a further adjournment.

Section 15 of the Statutory Powers and Procedure Act provides:

Subject to subsections (2) and (3) a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court;

(a) Any oral testimony and

(b) Any document or other thing relevant to the subject matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

The SPPA therefore gives broad discretion to administrative tribunals to admit any oral testimony or document or other thing.

Rule 39 gives an arbitrator discretion to determine the relevance, materiality and admissibility of evidence submitted at a hearing, with the following exceptions:

a) Evidence that would not be admissible in a court by reason of any privilege under the law of evidence;

b) Evidence that is not admissible under the Insurance Act;

c) Evidence that was not served on the opposing party in accordance with the rule in 39.1 and 39.2, unless the hearing arbitrator is satisfied that extra-ordinary circumstances exist to justify an exception.

The implication of the above provisions is that an arbitrator has wide discretion to admit evidence at a hearing. However, in circumstances such as this case, where admitting the transcript without giving the opposing party the opportunity to cross examine the evidence may offend the rule in Browne v. Dunn, I find that the fairest and most practical option is to admit the transcript evidence, but determine the appropriate weight to be given to it.

I have considered the submissions of both parties and I conclude that the failure to cross examine the other driver (Roman Cervenak) and his passengers, at best, go to weight to be given to their evidence.

EXPENSES:

As this is an interim decision, I suggest that any issues relating to expenses be dealt with at the conclusion of the hearing.

October 30, 2017

Anita Idemudia Arbitrator

Financial Services Commission of Ontario