Released: May 27, 2020
Tribunal File Number: 17-002762/AABS
In the matter of an Application for Dispute Resolution 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
ATTENDANCES:
Order made by: D. Gregory Flude, Vice-Chair
For the Applicant: Imtiaz Hossien, Counsel
For the Respondent: Arthur Camporese, Counsel
HEARD: IN WRITING
OVERVIEW
1The motion before me is the latest in a series of motions brought by the applicant, L.D., arising out of a cross-examination of Jennifer Bethune, an adjuster for the respondent, Gore Mutual Insurance Company (“Gore”). In the current motion, L.D. moves to compel Gore to answer questions refused on the fourth day of a cross-examination of Ms. Bethune on her affidavit. Gore takes the position that it has answered the questions.
SHORT PROCEDURAL HISTORY
2This matter has a long and tortured history. The application was first filed on May 4, 2017. A series of case conferences were scheduled and adjourned through the summer of 2017 ultimately resulting in the hearing being scheduled for January 2018. L.D. sought reconsideration of a case conference order which was allowed in part. On November 2, 2017, L.D. brought a motion seeking, among other things, the production of documents. In response, Gore filed Ms. Bethune’s affidavit affirmed on November 27, 2017.
3L.D. sought to cross-examine Ms. Bethune on her affidavit. Following more motions and a reconsideration, the Tribunal ordered that Ms. Bethune may be cross-examined. The cross-examination took place over five days, ending on May 15, 2019. During the first four days, there were a number of undertakings and refusals. One issue was the extent to which Gore’s counsel, Mr. Camporese, may have improperly interfered with the cross-examination and communicated with Ms. Bethune while she was under cross-examination.
4L.D. brought a motion to strike out Gore’s response because of Mr. Camporese’s alleged improper behaviour. The Tribunal released its decision on February 20, 2019, dismissing the motion. In doing so, Associate-Chair Jovanovic stated as follows:
Despite the improprieties during the cross-examination of Ms. Bethune as found above I am not prepared to strike the response. I am not satisfied that there has been an abuse of process to the extent that such an order is appropriate. From a different perspective and in the words of Justice Perell in Gomommy, “The misconduct did not amount to contempt or a deliberate flouting of the law.” [emphasis in original]
5On July 31, 2019, L.D. brought a second motion seeking to strike out Gore’s response. She proposed to summons two witnesses to testify in person at the motion hearing. Associate-Chair Jovanovic directed a motion in writing on the question of hearing oral testimony. He released his decision on October 31, 2019, holding that L.D. could not summons witnesses to give oral evidence at the motion hearing.
6In his October 31, 2019 decision, Associate-Chair Jovanovic made the following observations: “In 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…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.” It is important to note that the issue before the Associate-Chair was limited to deciding whether L.D. would be permitted to summons two witnesses to testify in person. His comments, while instructive, were not part of the central reasoning of his decision to deny L.D.’s motion.
7The second motion to strike was commenced on December 19, 2019 before me. During that motion, L.D. sought an adjournment to bring a motion to compel answers as suggested by the Associate-Chair. I set a timetable for submissions for the motion to proceed as a written motion. Having received and considered the parties’ submissions, these are my reasons for dismissing L.D.’s motion.
ISSUES
8The issues in this motion are as follows:
a. Whether the Tribunal should make an order:
i. compelling Ms. Bethune to answer the questions set out in paragraph [26] of the October order, including any communications she had with Mr. Camporese, or other counsel about evidence she had given or was about to give by way of answers to undertakings; or, as submitted by Gore;
ii. that Ms. Bethune has answered the questions set out in the October order, either at the fifth day of the cross-examination in May 2019 or otherwise.
RESULT
9Ms. Bethune has answered the questions.
ANALYSIS
Period between the Release of the February 20, 2019 Order and the Continued Cross-examination of Ms. Bethune.
10The starting point for L.D.’s position is that, on the fourth day of Ms. Bethune’s cross-examination, there were several refusals to answer questions relating to her discussions with Mr. Camporese about undertakings and refusals. Mr. Camporese advised Ms. Bethune not to answer the questions on the basis of privilege. Mr. Murray, acting for L.D. in the cross-examination, then asked Mr. Camporese to withdraw Ms. Bethune’s affidavit. Mr. Camporese declined.
11As set out above, those refusals generated two motions to strike Gore’s response. The first was dismissed on February 20, 2019 and the second was suspended on December 18, 2019 in favour of the current motion to compel answers.
12In attempting to understand L.D.’s position, I find her submissions to be of little assistance. She recites procedural facts that are not particularly in dispute in paragraphs [6] to [20] of her submissions and thereafter does not address the issues in dispute on this motion. What she does is make general statements of law without pointing out how that law impacts the facts of this motion. I am left to Gore’s submissions, and L.D.’s reply to those submissions, for the applicable chronology. The relevant chronology starts with the release of the Tribunal’s order on February 20, 2019 and, in particular, two letters exchanged by counsel in February and March of that year.
13Following the release of the February 2019 order, L.D.’s counsel sent Gore’s counsel a letter dated February 22, 2019, setting out eight points he wished to address. The second point deals with refusals. It states the following:
Secondly, you have claimed privilege over communications with Ms. Bethune regarding her evidence after the commencement of cross-examination. Could you please confirm that privilege is no longer being claimed. [sic] Alternatively, could you confirm that her affidavits are being withdrawn. [sic]
14It is L. D.’s position that Gore failed to respond to this letter thereby necessitating this motion to compel Ms. Bethune to answer.
15Gore submits that it did respond to this letter and proposed a mechanism for addressing the outstanding refusals at the upcoming continued cross-examination of Ms. Bethune. By way of letter dated March 7, 2019, Mr. Camporese wrote to Mr. Murray, L.D.’s counsel, as follows:
Similarly, I propose to address the matters raised as numbers 1 through 8 on a question by question basis at the cross-examination.
16L. D. did not respond to Mr. Camporese’s proposal to deal with the refusals at Ms. Bethune’s continued cross-examination. She did agree to the date of May 15, 2019 for the continued cross-examination without demanding that the refusals be addressed prior to that date. In taking no action to confirm or deny Mr. Camporese’s proposal, I find that L. D. acquiesced in it and cannot now require strict compliance with the February 22, 2019 letter
Refusal Were Answered
17Gore submits that the refusals were, in fact, answered during the continued cross-examination. To understand this issue more fully, I will set out the refusals identified by Associate-Chair Jovanovic in his October 31, 2019 order that led to this motion. They are set out at paragraph 26, as follows:
During 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.
18Associate-Chair Jovanovic then held that these were valid questions and should be answered. He suggested a motion to compel answers and indicated that he was disposed to order that the answers be given, but not before allowing the parties to make submissions. He did not have either L. D.’s letter of February 22 or Gore’s letter of March 7, 2019.
19In its submissions, Gore asserts that the questions were answered at the continued cross-examination on May 15, 2019. It relies the following excerpt from the transcript of that day:
Q: With respect to a recent motion, my understanding of the position of the respondent is that with respect to the undertakings and refusals, you did not communicate with Mr. Camporese and rather it was his interpretation as far as what your answers would be. Am I correct on that one?
MR. CAMPORESE: That is correct. And that's why they're in the third person.
BY MR MURRAY
Q: Okay. And so you did not have any communications with respect to the undertakings and refusals; is that correct?
A: Yes.
Q: So your previous statement as far as you couldn't remember is incorrect. It was actually that you just didn't have any.
A: Yes.
20In my view, these answers wholly respond to the disputed refusals. At issue was communication between Mr. Camporese and Ms. Bethune about undertakings and refusals. Ms. Bethune clearly states that there were no communications on that topic.
ORDER
21L. D.’s motion to compel answers to refusals to answer questions during the cross-examination of Ms. Bethune is dismissed on the basis that the questions were answered on May 15, 2019 following a procedure proposed by Gore and acquiesced in by L. D.
22This motion order renders L. D.’s July 31, 2019 motion to strike Gore’s response for refusal to answer the same questions moot. There are other motions pending in this matter and in a related file, 18-011978/AABS, that are schedule to proceed electronically on June 16, 2020. Those motions will proceed as scheduled.
23The parties may make submissions as to costs of the within motion and the July 31, 2019 motion to strike, limited to three pages each, in accordance with Rule 19 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016). Given Gore’s success on the motions, they shall provide submissions as to costs within ten days of the release of the order. L. D. will provide any responding submissions within ten days of the receipt of Gore’s submissions.
Date of Issue: May 27, 2020
__________________________
D. Gregory Flude
Vice-Chair