S. D. S. v. BelairDirect, 2022 CanLII 46847

Citation: S. D. S. v. BelairDirect 2022 ONLAT 18-010669/AABS

Released Date: File Number: 18-010669/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:

[S. D. S.]

Applicant

and

BelairDirect

Respondent

MOTION ORDER

VICE-CHAIR:

Sandeep Johal

APPEARANCES:

For the Applicant:

Suzy Dos Santos, Applicant

Kristy Kerwin, Counsel

Jerry Antman, Counsel

Bryan Fromstien, Counsel

For the Respondent:

Nicole Graham, Adjuster

Daniel Himelfarb, Counsel

Held by Videoconference:

August 9, 2021

BACKGROUND

1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule") arising out of a motor vehicle accident on December 13, 2013.

2A case conference order dated September 16, 2020 set out the issues in dispute as a non-earner benefit from May 13, 2017 and ongoing, an attendant care benefit from December 13, 2013 and ongoing, as well as payment for cost of examinations and medical and rehabilitation benefits. The order further set out that the parties were to exchange a finalized list of witnesses by July 7, 2021.

3As a result of a motion order dated July 13, 2021, the issues in dispute were narrowed to an attendant care benefit from January 3, 2020 to date as set out in the Form 1, an award and interest. The remaining issues in dispute were withdrawn. A videoconference hearing was also set for August 9-13, 2021.

4On August 6, 2021 the respondent filed a Notice of Motion seeking an order from the Tribunal to compel Fabio Longo, of Longo Lawyers to give evidence at the hearing. The applicant was employed as a legal assistant and worked for Mr. Fabio Longo at Longo Lawyers from June 25, 2013 to May 21, 2014. Longo Lawyers is also the law firm representing the applicant in this matter. Due to the late filing of the Notice of Motion, the motion was scheduled to be heard at the beginning of the hearing.

ANALYSIS

5The respondent's motion is denied for the following reasons. The respondent submits the applicant was aware of its request to have Mr. Longo appear as a witness in the hearing and refers to correspondence which took place between the parties from October 25, 2019 and January 28, 2020.

6The respondent acknowledges that it did not provide a witness list which included Mr. Longo by July 7, 2021 as ordered, and submits the reason for not doing so, was as a result inadvertence.

7The respondent further submits that despite the fact that the only remaining issue in dispute is an attendant care benefit from January 3, 2020 that does not eliminate the need for evidence regarding what the applicant has been capable of doing since the accident in 2013. Further, the respondent submits Mr. Longo may have evidence regarding the applicant's activities since her claim for attendant care benefits has been advanced. As a result, the respondent submits, the evidence from Mr. Longo is relevant and probative.

8Furthermore, it is the respondent's position that Mr. Longo is not counsel of record and therefore there is no conflict of interest in having Mr. Longo testify at the hearing.

9In support of its position the respondent relies upon several cases,¹ however, I do not find them to be of assistance. The Hotchkiss case was about having a summons issued to a witness if the evidence being sought is relevant and setting aside of that summons should only be done if the witness has no direct knowledge or relevant evidence. I find this case distinguishable as it does not deal with a summons of a lawyer from the law firm representing the applicant, and this is a FSCO (Financial Services Commission of Ontario) case, and I am not bound by FSCO decisions. Furthermore, I find that the time period Mr. Longo would be able to speak to is from 2013 to 2014, whereas the attendant care benefit in dispute is from 2020 onwards.

10The Lifford case was about whether a summons should be quashed if the evidence is relevant to the issues in dispute and the Divisional Court held that to do so would be a breach of natural justice. However, the facts of Lifford are not similar to the facts in this matter. The issue in Lifford was about witness tampering and summoning a witness (who was not counsel) to test the evidence of the employees called in relation to witness tampering and influencing. Those are not the facts in the present case and as a result, I find Lifford to be of limited assistance.

11The Papazian case sets out when a summons should be permitted for examining counsel for an adverse party. Papazian sets out that a summons should not be issued absent exceptional circumstances showing high materiality and the necessity of the lawyer's evidence. The Superior Court went on to state that the moving party, has the onus to show that legal counsel would likely or probably have evidence material to the issues in dispute. However, the Superior Court held that summoning a lawyer should be avoided whenever possible, especially when it involves requiring a lawyer to testify against his or her client.

12I find factors from Papazian do not assist the respondent in the present case. In Papazian, it was clear that the summons issued to the lawyer should be upheld because it was obvious from the record that the evidence was necessary as he was the only person who could provide the evidence in that matter. I am not persuaded of that situation in the present case. First, as the onus is on the respondent, considering the Papazian factors, it is not obvious from the submissions that there is high materiality or that the evidence from Mr. Longo is a necessity. The evidence Mr. Longo would be able to provide would be of the applicant's work duties and performance from 2013 to 2014, however the issues in dispute are from 2020 on an attendant care claim. I am not persuaded that Mr. Longo's evidence would be material or a necessity or even that it would be the only evidence available regarding the applicant's work duties and performance. As a result, I do not find Papazian to be of assistance in the present case.

13P&J Contracting, is a case that involved removing counsel of record for the plaintiffs due to a conflict of interest since that counsel had a direct interest in the litigation beyond that of an advocate and would likely be an important witness at trial. Those are not the facts in the present case, and I find that P&J Contracting is therefore of limited assistance.

14The applicant takes the position that she ceased working for Mr. Longo in May 2014, filed an application for accident benefits on February 3, 2016 and is only advancing a claim for accident benefits from January 3, 2020 and ongoing. It is the applicant's position that the respondent has not established that Mr. Longo has any relevant or material evidence to provide regarding the issues in this case.

15The applicant further submits that the respondent indicated that it intended to call Mr. Reybroek and Mr. Neinstein, both of whom operated firms where the applicant worked, and therefore it was unnecessary to call Mr. Longo.

16I agree with the applicant and find that the respondent has not met the high threshold to prove that Mr. Longo's testimony is required. The case law the respondent relies upon sets out that the evidence must be material and necessary, however the respondent submits it does not know what evidence Mr. Longo will provide but that the insurer should not be precluded to seek out evidence in defence of the applicant's claim. That may be true, however, not in the context of summoning counsel from the firm that is representing the applicant. In this situation additional factors apply (discussed above from the case law), and the respondent has not met those factors.

17The applicant further submits that, despite the respondent's contention that there is no conflict as Mr. Longo is not counsel for the applicant, Mr. Longo, still cannot be compelled to testify as that would disqualify the entire law firm, depriving the applicant of her choice of counsel. I agree with the applicant and the case law the applicant relies upon,² which stands for the proposition that if a lawyer is testifying, then the firm also cannot act for the applicant in that situation.

18Furthermore, the respondent's motion to add Mr. Longo as a witness is untimely. The motion was brought on the eve of the hearing and heard on the first day of the hearing and it did not comply with the previous deadlines as set by the Tribunal. Nor was the motion served at least 10 days in advance of the hearing as required by Rule 15.2 of the Tribunal's Common Rules of Practice and Procedure³ despite the respondent knowing well in advance that it intended to call Mr. Longo as a witness. The respondent also did not bring a motion to vary or extend the deadlines set by the Tribunal in this matter. In addition to these procedural failures, which the respondent submits were an oversight and occurred through inadvertence, I find that the respondent has not met the high threshold and onus to persuade me that calling Mr. Longo as a witness is highly material or a necessity.

ORDER

19As a result of the above, the respondent's motion to add Mr. Longo as a witness is denied.

20The Tribunal shall contact the parties to reschedule the hearing for 4 days in length.

21The applicant makes a request for costs, in accordance with Rule 19, the issue of costs shall be added as an issue in dispute.

22I am not seized for the purpose of the hearing on the merits.

23Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

24If the parties resolve the issue(s) in dispute, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1Hotchkiss and Kingsway Insurance Company FSCO 2011 CarswellOnt 151120 (Hotchkiss); Lifford Wine Agencies Ltd. v. Ontario (Alcohol and Gaming Commission) [2004] O.J. 2696 (Lifford); Papazian v. Morris Manning Q.C. Professional Corporation 2019 ONSC 6461 (Papazian); and P&J Contracting Inc. v. James Singer 2017 ONSC 3783 (P&J Contracting).
2. 2Gutierrez v. The Watchtower Bible and Tract Society of Canada et al, 2019 ONSC 3069, at para 41; R v. Chen, 2001 CanLII 28044 (ONSC) at para 36; Mapletoft v Christopher J. Service, 2008 CanLII 6935 (ONSC), at para 10; and Hosseinzadeh v. Pringle, 2018 ONSC 1947, at para. 29.
3. 3Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended.