Dispute Resolution Services
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Neutral Citation: 2019 ONFSCDRS 40
Appeal P18-00037
OFFICE OF THE DIRECTOR OF ARBITRATIONS
BHUPINDER SINGH GREWAL
Appellant
and
AIG COMMERCIAL INSURANCE COMPANY OF CANADA
Respondent
BEFORE:
Anne Sone
REPRESENTATIVES:
Frank Burns for Mr. Grewal
J. Claude Blouin for AIG
HEARING DATE:
Final Submissions were received on September 27, 2019
ORDER ON A MOTION
Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:
- Mr. Grewal’s request to have AIG Commercial Insurance Company of Canada’s occupational therapy assessment report of July 24, 2018 considered as fresh evidence and make up part of the Variation record is denied.
November 18, 2019
Anne Sone Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE MOTION
This matter involves the SABS–2010.1
II. BACKGROUND
Mr. Grewal has requested that AIG Commercial Insurance Company of Canada’s (AIG) occupational therapy assessment report of July 24, 2018 be considered as fresh evidence and make up part of the Variation record.
In a letter dated August 26, 2019 to me, counsel for Mr. Grewal enclosed the report of Mr. Jonathan Kaine, occupational therapist. Mr. Kaine was retained by AIG to provide an opinion regarding Mr. Grewal’s ongoing claims for statutory accident benefits. AIG disclosed this report to Mr. Grewal on August 22, 2019 in relation to a separate proceeding, but was in possession of this report well in advance of the Variation proceeding over which I am presiding.
III. ANALYSIS
Mr. Grewal submits that Mr. Kaine’s evidence is highly relevant to the issues in the Variation proceeding, and could not have been obtained through Mr. Grewal’s due diligence as Mr. Kaine was engaged by AIG and his report was withheld from Mr. Grewal for over a full year.
Mr. Grewal also submits that Mr. Kaine’s report meets the requisite fresh evidence test and should make up part of the record upon which I will render my decision in the Variation proceeding.
AIG submits that Jonathan Kaine’s report was commissioned to opine upon the reasonableness and necessity of ongoing occupational therapy, a rehabilitation support worker and a smart phone.
AIG also submits that it requested this report as part of the ongoing adjustment process. It states that this report sheds no light upon the issues that were before Arbitrator Feldman. These are the only issues that are the subject of the Variation proceeding. In addition, it states that this report is not evidence not available on the arbitration that has become available.
Arbitrator Feldman’s arbitration decision in this matter is dated August 14, 2014. It dealt with numerous issues. It did not deal with any of the issues in Mr. Kaine’s report. Accordingly, I do not find it relevant to the Variation proceeding in this matter.
To quote from the Divisional Court judgement dealing with an appeal2 from the Director’s Delegate’s decision in this case:
The proposed new evidence simply does not address the grounds for the arbitration whatever the limits or breadth of the fresh evidence test may be under S. 284 [of the Insurance Act].
Accordingly, I deny Mr. Grewal’s request to have AIG’s occupational therapy assessment report of July 24, 2018 considered as fresh evidence and make up part of the Variation record.
November 18, 2019
Anne Sone Director’s Delegate
Date
Footnotes
- Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “New Regulation”) came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the “Old Regulation”) shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010 and both should be considered.
- Grewal v. AIG Insurance Company of Canada, 2018 ONSC 1202.