Licence Appeal Tribunal File Number: 19-006331/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:
Richard Sahadeo
Applicant
And
Pafco Insurance Company
Respondent
MOTION DECISION
Decision made by:
Chloe Lester
APPEARANCES:
For the Applicant:
Ashu Ismail, Counsel
For the Respondent:
Jonathan Schrieder, Counsel
Motion Heard in Writing:
March 7, 2022
BACKGROUND
1The applicant was injured in an automobile accident on October 26, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010.
2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3The parties commenced the hearing on January 18, 2022. Due to scheduling conflicts, the hearing will continue from March 28-30, 2022.
4One of the issues in dispute is whether, pursuant to section 10 of Ontario Regulation 664, the respondent is liable to pay an award to the applicant because it unreasonably withheld or delayed payments of benefits. To prove its case, the applicant summonsed the adjuster to testify. The respondent opposes the applicant’s summons. The parties were given an opportunity to argue this motion via written submissions.
ANALYSIS
5The applicant issued a summons via email for the purpose of cross-examination of the adjuster. The applicant argues that it has properly summonsed the adjuster for testimony regarding its handling of this claim. The applicant relies on sections 10.1 and 12(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (SPPA) to call and cross-examine witnesses for a full and fair disclosure of all matters relevant to the issues in a proceeding and to give authority for the Tribunal to issue a summons. The applicant also submits that their request is congruent with the Rules of Civil Procedure.
6The respondent submits that the applicant should not be able to summons the adjuster for Pafco Insurance Company, Ms. Deepali Shah, as the applicant’s witness because she is an employee of Pafco. If the applicant is granted such permission, then the respondent argues it should be only for the purpose of examination-in-chief, and it should be after the applicant’s case has concluded. Lastly, the respondent argues the summons is invalid as it was not served on the adjuster personally.
7In determining the procedures for a hearing, an adjudicator is bound by the Licence Appeal Tribunal Rules of Practice and Procedure (“Rules”), the SPPA, and more recently the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched. 3 (“HITPA”). An adjudicator is also bound by case law regarding procedural fairness.
8Section 10.1(b) of the SPPA allows a party to a proceeding to conduct a cross-examination of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in a proceeding. In section 12(1) of the SPPA, the Tribunal may require any person, including a party, by summons, to give or produce evidence relevant to the subject matter of the proceeding.
9The guiding principle for calling a witness is the relevancy of their testimony to the subject matter (see section 15(1) of the SPPA) and are they necessary to give or produce evidence. One must also consider whether the respondent is prejudiced in any way and whether it can be accounted for. This is the principle of considering the probative value of the evidence versus its prejudicial effect.
10I find the testimony of the adjuster relevant to the proceedings concerning the issue of an award. The test for an award is whether an insurer has unreasonably withheld or delayed payments of benefits. This evidence can be presented through the log notes, the letters from the insurance company and the testimony of the adjuster. The testimony of the adjuster is sometimes necessary to fill in the gaps between the log notes and the letters sent to an insured. To give some examples, the adjuster’s testimony may be necessary to understand why a benefit was denied, why medical documents were not sent to the IE assessor or to determine a sequence of events. The respondent has not detailed a specific prejudice in having the adjuster testify other than she should not have to. Since no specific prejudice is claimed, I find the adjuster may be summons to testify as her evidence is relevant to the issues in dispute.
11The respondent argues that if the adjuster must testify, it must be after the applicant’s case has been presented so it may properly respond, and it must be done through an examination-in-chief.
12The applicant has not presented arguments regarding the specific order of the witnesses.
13The respondent asserts that for the purposes of efficiency, procedural fairness and natural justice, the adjuster should not be obligated to testify as a witness before the respondent has even had a chance to present its case. I want to be clear that the respondent has chosen not to call the adjuster to testify and opposes the applicant in calling her as well. The respondent has not articulated any prejudice by having her testify while the applicant is presenting his case.
14In this case, the adjuster’s testimony on why she denied certain benefits has no bearing on entitlement. The applicant still has the onus to prove entitlement to the benefits in dispute. The order of witnesses should have no impact or prejudice the adjuster’s ability to testify. In this hearing, the adjuster may be called to testify at any time.
15The next argument to determine is whether the party who summons a witness is entitled to conduct an examination-in-chief only. The applicant relies on Rule 53.07(1) of the Rules of Civil Procedure that the applicant has the right to call an adverse party and on Rule 53.07(5), which states that calling an adverse party witness may be for the purposes of cross-examination. The respondent argues that the Rules of Civil Procedure do not apply and there are no similar provisions within the SPPA that govern the Tribunal.
16It is trite that there is no property in a witness. It is open to either party to introduce evidence relevant to the dispute (see, for example, 2015429 Ontario Inc. v. Dynasty Homes et al., 2006 CanLII 23251 at para. 64 (ON CA)).
17I agree that the Rules of Civil Procedures do not apply to the Tribunal. Neither the SPPA nor the Tribunal’s Rules address the concept of an adverse witness; further, the Ontario Evidence Act does not deal with an adverse witness in the tribunal hearing context.
18Therefore, on that basis, by calling the adjuster to testify, the applicant is asking her to be his witness and, accordingly, may begin only with an examination-in-chief. That being said, I am cognizant of the fact that the adjuster is representing the insurance company, made decisions on the claim and may be adverse in interest. However, during the examination-in-chief, if the adjuster demonstrates that she is not merely an adverse witness but is a hostile witness, then it is open to the applicant to request permission from the Tribunal to cross-examine his own witness. The Tribunal will consider that request if it arises.
19Lastly, the respondent argues that the summons is not valid as it was not served in person in accordance with the SPPA.
20The Tribunal’s Rules largely mimic the sections in the SPPA but are more specific and tailored to the individual Tribunal. Where there might be a conflict, the SPPA would be the governing authority. Section 12 of the SPPA requires that a summons to witness be served personally. Tribunal Rule 8 is specific to the issuance of a summons. It states that the Tribunal on its own initiative or at the request of a party may issue a summons. It specifies how a party files a request for a summons, serves the summons and payment of attendance money. Rule 3.1 allows for a liberal interpretation and application of the Rules, and they may also be varied to facilitate a fair process.
21Recently, in March 2020, section 3 of the HITPA allows a Tribunal to make any order or give directions that it considers appropriate respecting the format of the hearing and its conduct. This includes any matters ancillary to the holding of the hearing and includes the service of materials and attendance at the hearing. Where there is a conflict, the HITPA prevails over the SPPA and the Tribunal’s Rules. This allows flexibility for the Tribunal in varying the sections in the SPPA or the Tribunal’s Rules to manage the hearings and its processes during the pandemic. I asked for the party’s submissions regarding HITPA and its potential application to this issue.
22The applicant argues that the Tribunal has the power to hold that the summonsing of a witness, especially one that is employed by the insurer, may be properly served via email and deemed received. To support its position, the applicant relies on the Tribunal’s decisions in O.R. v. Unifund1 and Gilani v. Travelers2 where substituted service of the summons via email was allowed.
23The respondent argues that the wording in the HITPA “attendance at the hearing” implies attendance by videoconference or telephone, not diminishing the rights of a witness to be personally served. The respondent argues that altering the sections of the SPPA is only necessary when there is a circumstance that warrants it. In this case, the respondent argues the applicant has not demonstrated this onus. The respondent argues that the cases relied upon by the applicant can be differentiated because it was only after a demonstrated attempt to serve the witness personally had failed that email service was considered appropriate. In this case, the respondent argues that the applicant has not tried to serve the adjuster personally. The respondent also relies on two Ontario Labour Relations Board decisions3 where the mere existence of a pandemic did not mean that substituted service should be granted.
24The applicant replied that the cases presented by the respondent in support of its position do not deal with an attempt to call representatives of a party.
25With regards to the validity of the summons, the HITPA dictates that tribunals may vary the wording in the SPPA to make orders that it considers appropriate. I agree with the respondent that deviation from the sections of the SPPA should only be when necessary and where circumstances warrant it. The previous Tribunal’s decisions allowed email service of the summons after a demonstrated effort to obtain the witness’s address was unsuccessful. The applicant has not presented evidence that his attempts to obtain the adjuster’s address have been unsuccessful, warranting a necessity for email service of the summons. I agree with the respondent that the current summons to the adjuster is not valid since it was not personally served in accordance with section 12 of the SPPA, and I decline to make an order for substituted service by email under section 3 of HITPA at this time, given the above reasons.
26Since there is a short time remaining prior to the continuation of the hearing, I order that the respondent provide the adjuster’s address by March 16, 2022 to ensure the applicant has sufficient opportunities to properly serve the adjuster.
27Lastly, the applicant requests costs based on the adjuster’s alleged attempts to interfere with the proceedings by failing to respond to the applicant’s emails regarding the summons, change of hearing dates, and request for her address to send the witness attendance money. I will not decide this request now but will allow the parties to make submissions on costs at the end of the hearing.
RESULT
28The applicant is entitled to summons the adjuster for examination-in-chief at any time while he presents the merits of his case.
29The respondent is ordered to provide an address for the adjuster by March 16, 2022.
30The applicant must serve the adjuster’s summons personally in accordance with section 12 of the SPPA. I decline to make an order for substituted service of the witness summons pursuant to section 3 of the HITPA at this time, but it is open to the applicant to subsequently satisfy the Tribunal to make such an order.
Released: March 14, 2022
___________________________
Chloe Lester, Vice Chair
Footnotes
- O.R. vs. Unifund Assurance Company, 2021 ONLAT 18-012427/AABS, 2021 CanLII 13001
- Gilani v. Travelers Insurance Company of Canada, 2021 ONLAT 19-009248/AABS-M, 2021 CanLII 108378
- Labourers' International Union of North America, Local 183 v. Sabrina Homes Inc., 2020 CanLII 30872; Giancarlo Pallante v. Conventry North Jaguar Land Rover, 2020 CanLII 80803