Tribunal File Number: 17-002762/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
L.D.
Applicant
and
Gore Mutual Insurance Company
Respondent
MOTION DECISION AND ORDER
Written Submissions from:
Counsel for the applicant: Peter Murray and Imtiaz Hosein
Counsel for the respondent: Arthur R. Camporese and Christine N. Ellis
Order made by: D. Stephen Jovanovic
OVERVIEW
1The applicant was involved in a motor vehicle accident on November 11, 2015. On May 3, 2017 she filed with the Tribunal an Application by an Injured Person for Auto Dispute Resolution regarding a denial by the respondent of her claim for Attendant Care Benefits and Medical Benefits.
2The applicant delivered two motions dated July 31, 2019. In the principal motion, the applicant is requesting the following relief:
i) An order that the Response by an Insurance Company to an Injured Person’s Application for Auto Insurance Dispute Resolution under the Insurance Act in this matter be struck in its entirety with no leave to amend.
ii) The Licence Appeal Tribunal file a complaint with the LSUC with respect to the respondent’s counsel, Mr. Camporese’s repeated breaches of the Rules of Professional Conduct.
iii) An order that the respondent must pay the applicant’s costs related to all motions and for the main dispute.
iv) Such further relief as the applicant seeks and the Tribunal sees fit to provide.
3The second motion delivered by the applicant sought the following relief:
i) An Order to add a special award claim made under section 10 of O. Reg. 664.
ii) An Order to add 17 additional witnesses.
iii) An order that claims of litigation and solicitor and client privilege are waived by the Respondent, and reserves are relevant.
iv) An order for further productions, including, among others, “all documents in the possession or control of the Respondent with respect to [L.D.] or her claim for accident benefits to date with no allowance to redact or withhold any document.”
4Not to be out motioned, the respondent has delivered its own motion requesting an order staying the application. A case conference was held on August 12, 2019 at which time the applicant advised that she intended to summons two witnesses to give oral evidence on the return of the three motions scheduled to be heard on December 18, 2019. One proposed witness was Jennifer Bethune, the respondent’s claims’ adjuster and the other was Mr. Camporese, the lead counsel for the respondent in this matter.
5The ensuing case conference order set out a protocol to deal with the delivery of motion materials by the parties and the applicant’s request to compel the attendance of Ms. Bethune and Mr. Camporese to testify on the motions, which as a matter of practicality, had to be dealt with expeditiously. If Mr. Camporese were ordered to give evidence, new counsel would have to be retained to argue the motions.
6The applicant delivered written submissions on September 6, 2019 (at 5:17 p.m.) but did not deliver an actual motion for the order regarding Ms. Bethune and Mr. Camporese. In the respondent’s submissions, delivered on September 23, 3019, it takes the position that the applicant’s request should be dismissed for that reason alone. The respondent then submits that as the applicant’s submissions were deemed to have been served on September 7th, one day after the date set in the case conference order, they should not be “accepted or received by the Tribunal.”
Disposition
7For the reasons that follow, the motion by the appellant to compel the attendance of Ms. Bethune and Mr. Camporese to give oral evidence on the return date of the three motions set out above is dismissed.
Analysis
8The respondent is correct in stating that the applicant did not deliver a motion specifically regarding Ms. Bethune and Mr. Camporese following the August 12th case conference. However, buried on the second last page of her principal motion in the “grounds for this Notice of Motion” the applicant writes the following:
The Applicant requests that Ms. Bethune be summoned as a witness at the hearing to provide viva voce evidence and be required to bring with her all documents related to her receipt of the historical transcripts. This is necessary as it is clearly obvious that respondent, through counsel, will not allow Ms. Bethune to give evidence. Ms. Bethune is expected to testify as to when she received the other transcripts and the coaching she has received from counsel for the respondent and from others the full details of which are not known at this time.
The Applicant requests and requires, as a matter of justice and procedural fairness, that Mr. Camporese be summoned as a witness. Based on the historical willingness of Ms. Bethune to lie under oath and makes claims of not remembering dates of non-occurring events, Mr. Camporese’s testimony is essential to assure the veracity of the testimony of Ms. Bethune.
9The parties have delivered extensive written submissions on the question of whether these two individuals should be compelled to testify. The three motions referred to above are scheduled to be heard on December 18, 2019 with tight timelines for the delivery of the materials. Rule 3.1 of the Tribunal’s rules (for applications received before October 2, 2017) provides that the rules shall be liberally interpreted and applied to “ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.”
10The Tribunal has heard and decided a number of motions in this matter to date. Given the foregoing, I see no reason to further delay the “timely resolution of the merits” of the matter by now requiring the applicant to deliver a motion in the proper form. I see no prejudice to the respondent in dealing with this motion on the merits.
11The respondent delivered six affidavits in response to earlier motions brought by the applicant, two of which were from Ms. Bethune. The cross-examinations on those affidavits did not proceed smoothly. Ms. Bethune was eventually cross-examined over five days concluding on May 15, 2019.
12The applicant previously brought a motion to strike the response of the respondent alleging about 14 improprieties on the part of Ms. Bethune and Mr. Camporese during and in between some of the first four days of the cross-examinations. The motion was dismissed in a decision of the Tribunal dated February 20, 2019, notwithstanding a finding that there were a number of improprieties committed by Ms. Bethune and Mr. Camporese. The Tribunal held, however, that the actions and conduct complained of did not amount to an abuse of process justifying the order sought.
13The applicant now seeks to examine or cross-examine Ms. Bethune and Mr. Camporese orally before the Tribunal hearing the motions scheduled for December 18, 2019.
14In a decision of the Tribunal dated August 9, 2018, the applicant’s request to have summonses issued for five witnesses to give oral evidence at an earlier motion was denied. I wrote the following at paragraph [15] of that decision.
I am not satisfied that fairness dictates in this case that the applicant, on the motions to be heard, should be permitted to call five witnesses to give oral evidence and turn the motions into something more closely resembling a trial. The Tribunal has the right to set its own procedures, subject to any overriding legislation. Part of the Tribunal’s mandate is to provide the “efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.” Allowing the oral evidence of five witnesses on the motions would produce the opposite result. Accordingly, the requests for the summonses for the five witnesses to testify at the hearing of the motions are denied.
15The applicant subsequently requested a summons for Joanne MacKenzie a claims adjuster with the respondent who handled the applicant’s file for a period of time starting in November 2015. The applicant’s submitted the following, in part, on her motion for an order issuing the summons.
It is critical that Joanne MacKenzie give viva voce evidence at the motions scheduled to be heard on October 9 and 10, 2018 as she is the only person at Gore Mutual with first hand knowledge of the material facts, particulars and evidence relevant to the majority of issues of the contempt motion, the cease and desist motion and the third-party productions and the 6 affidavits the respondent relies on as evidence for the purpose of the three scheduled motions are significantly flawed and the credibility of the 6 witnesses is contested by the applicant.
16In a decision dated August 31, 2018 I dismissed that motion, primarily for the reasons given in the August 9, 2018 decision. The applicant’s request for reconsideration of the August 31, 2018 decision was denied in a decision by the Associate Chair of the Tribunal dated December 5, 2018.
17The applicant now submits that notwithstanding the five days of cross-examinations of Ms. Bethune, in order “fully and fairly advance her case at the motion hearing December 18, 2019, requires evidence on these issues that can only be provided by Jennifer Bethune and Mr. Camporese.” The applicant further submits that the “Tribunal has imposed an unnecessary burden on the Applicant of justifying why she should be allowed to call a non-contentious witness for the purpose of adducing evidence at her motion hearing [emphasis added].”
18This “non-contentious witness” is described at paragraph 102 of the applicant’s factum as follows:
Ms. Bethune is unreliable, not credible, contradictory, and not trustworthy with respect to her sworn evidence, as her transcript demonstrates her duplicity. The Tribunal ought to provide no credence to her hearsay statements made to others.
19In support of her position, the applicant cites sections 7 and 15 of the Charter, the Rules of Civil Procedure, the Tribunal’s rules, the Insurance Act, the Legislation Act, the Statutory Powers Procedure Act, the Law Society of Ontario Code of Conduct and a number of decisions of various courts, all of which I have considered. The applicant further submits that the principle of procedural fairness requires that she be allowed to have the two witnesses testify on the motions.
20Under the heading “Background Facts” in the applicant’s written submissions, she again alleges numerous improprieties on the parts of Ms. Bethune and Mr. Camporese during and between the days of cross-examinations. There are numerous references set out to the transcripts. Nevertheless, the applicant maintains the submission that oral evidence is necessary at the upcoming motion.
21The respondent submits that the Tribunal should follow its previous decisions where it did not allow the applicant’s request to call numerous witnesses to testify on motions.
22In the Tribunal’s decision of August 9, 2019, I did not decide that witnesses could never be called to give oral evidence at the hearing of a motion. I noted the case of Law Society of Upper Canada v. Robson, 2017 ONLSHP 0028 then relied upon by the applicant to support her position that oral evidence may be given at motions in an appropriate case where fairness requires oral evidence. I was not satisfied that in the circumstances of the motions then before the Tribunal that fairness dictated turning a motion into a trial.
23There have been five days of cross-examinations on the affidavits of Ms. Bethune. The transcripts are available and the applicant has provided a compendium of her evidence. Those would appear to be sufficient to allow the applicant to present her motion without calling Ms. Bethune to testify.
24The applicant has cited a number of decisions that stress the importance of the examination and cross-examination of witnesses in fulfilling a court’s truth-seeking function. The applicant has had the opportunity of testing the truth of Ms. Bethune’s sworn evidence through extensive cross-examinations and there is no need, in my view, for her oral evidence.
25In making this ruling, I am cognizant of one particular reason why the applicant submits that evidence should be allowed. At paragraphs [100] and [103] of her written submissions she writes the following:
Ms. Bethune is expected to give testimony regarding the circumstances surrounding her receipt of transcripts from the respondent’s counsel, during the course of cross-examination, as well as the coaching and prepping she received from respondent’s counsel and others, during the course of cross-examination. The full details of these apparent transgressions are not known, and the applicant requires Ms. Bethune as a witness to hearing, who will provide testimony on these issues under oath for the benefit of the Tribunal so that it can observe her viva voce evidence.
Mr. Camporese’s testimony is relevant as he has evidence regarding the circumstances of providing transcripts and coaching Ms. Bethune, during the course of cross-examinations, which is expected to be above and beyond Ms. Bethune can be trusted to provide, and especially so given his role in the documented events before the Tribunal that have worked to deny the applicant natural justice. Counsel for the Respondent has violated multiple rules of professional conduct and failed to meet the standards as expected under the rules of civil procedure. He has communicated with the witness during cross-examinations both on the record and off the record. He has given contentious evidence which he was subsequently made to retract. He has made false statement to a court reporter with the intent to mislead.
26During the fourth day of the cross-examination of Ms. Bethune the following exchanges took place between counsel:
Mr. Murray
Q Ms. Bethune, I’d like to start off by asking you about all discussions you’ve had since the beginning of your Cross-Examination with respect to your Affidavit with Mr. Camporese, or counsel, directly or indirectly?
Mr. Camporese
Don’t answer that question.
Mr. Murray
Q. Ms. Bethune, did you have any communication with respect to undertaking or refusal charts prior to October 6, 2018, directly or indirectly after the date of July 26, 2018?
Mr. Camporese
Don’t answer the question.
Mr. Murray
Q. Reason?
Mr. Camporese
Privilege.
Mr. Murray
Q. Privilege? So, you’re maintaining privilege over communications with respect to matters of Cross-Examination and Ms. Bethune’s Affidavit that occurred after July 26, 2018?
Mr. Camporese
Yes.
Mr. Murray
Q. Okay. Then I’d like you to, again, I ask that you withdraw Ms. Bethune’s Affidavits.
Mr. Camporese
I’m not withdrawing her Affidavit.
Mr. Murray
Q. Ms. Bethune, you did not have any communication with respect to the original answers that were provided in the refusals and undertaking chart, did you?
Mr. Camporese
Don’t answer the question.
27In my view, the questions asked by Mr. Murray were proper and the refusals by Mr. Camporese were not. Whether on an examination for discovery, a cross-examination, out of court or in court, counsel is allowed to ask if the witness discussed his or her evidence with their counsel during a break.
28The law on this point is set out in the Divisional Court decision in The Polish Alliance of Canada v. Polish Association of Toronto Limited et al., 2011 ONSC 1851. In that case, a witness during a break in his cross-examination on his affidavit consulted with his personal lawyer. When his cross-examination resumed, he refused to answer what question he discussed with his lawyer that was posed to him during the first session of his cross-examination.
29The issue before the Divisional Court, sitting on appeal from the decision of a Master, was whether it was proper for the witness to consult with counsel during his cross-examination and, if not, what the consequences should be.
30Justice Lauwers wrote the following:
The protection of the integrity of the fact-finding process is essential to the truth-seeking function of the courts and is reflected in the laws of evidence and civil procedure, in the court’s practices, and in the professional ethics of lawyers. It is a fundamental commitment of the system of justice. An important aspect of this process is the need to ensure that the testimony of a witness is that of the witness alone.
In furtherance of this objective, it is a well-established legal principle that, in the absence of a court order or the consent of the other parties to a proceeding, a witness shall not communicate with legal counsel in the course of testifying at trial, in a cross-examination or at an examination for discovery.
As Professors Mewett and Sankoff note:
The primary reason for prohibiting communication between counsel and witness while testifying at trial is to prevent counsel from telling the witness what he or she should say. The same concern exists during a discovery, and consequently the same basic restriction against counsel/witness communication should be in place.
31In my view, the proper recourse for the applicant would have been to bring a motion before the Tribunal to compel the witness to answer the questions as to any communication she had with Mr. Camporese, or other counsel, about evidence she had given or was about to give by way of answers to undertakings. Although I would be prepared to make such an order, I am reluctant to do so in the absence of a request from the Applicant and submissions from the parties.
32The question as to whether Mr. Camporese should be compelled to testify at a motion brings different considerations into play. In Maesbury v.1539006 Ontario Inc, 2011 ONSC 2829 Justice Grace wrote the adopted the following statement from a criminal case and applied it to the civil case before him.
At a minimum, such circumstances would require a showing of high materiality and necessity (assuming that the proposed evidence is otherwise admissible). Although not exhaustive, necessity…..will involve considerations such as the importance of the issue for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give evidence or other means by which it may be accomplished (such as filing an agreed statement of fact), the potential disruption of the trial process and the overall integrity of the administration of justice.
33The request to have Mr. Camporese testify was tied to the request to have Ms. Bethune testify and prove that she is not telling the truth. I have decided that she will not be required to testify. Accordingly, I do not see the “high materiality and necessity” of having counsel for a party relinquish that role in order to become a witness.
34To summarize, I am not satisfied of the need to have the oral evidence of Ms. Bethune or Mr. Camporese presented at the hearing of the motions scheduled for December 18, 2019 and accordingly the applicant’s motion is dismissed.
Released: October 31, 2019
___________________________
D. Stephen Jovanovic
Licence Appeal Tribunal