Court File and Parties

Citation: Turner v. State Farm Mutual Automobile Insurance Company, 2011 ONSC 7397 Divisional Court File No.: 595/09 Date: 2011/12/15 Superior Court of Justice – Ontario Divisional Court

Re: Deborah Turner, Applicant And: State Farm Mutual Automobile Insurance Company and Financial Services Commission of Ontario, Respondents

Before: Jennings, Dambrot, Harvison Young JJ.

Counsel: David S. Wilson, for the Applicant Robert S. Franklin, for the Respondent, State Farm Mutual Automobile Insurance Company

Heard: December 12, 2011

Endorsement

By the Court:

[1] The Applicant Deborah Turner applies for judicial review of a decision of the Director’s Delegate David Evans of the Office of the Director of Arbitrations of the Financial Services Commission of Ontario (“FSCO”).

[2] That decision was an appeal from Arbitrator Beth Allen of the FSCO. She dismissed the Applicant’s claim on the basis that the Applicant did not meet the onus of showing that the physical, cognitive and psychological conditions were caused or contributed to by the motor vehicle accident in which she was involved on June 16, 1993.

[3] The Applicant, while acknowledging that the standard of review is one of reasonableness, submits that the Arbitrator and Director’s Delegate’s decisions were unreasonable in:

a. ignoring evidence on the record that she said was not before her, and, in part, claiming that there was no evidence on issues when, in fact, there was; and

b. drawing adverse inferences from the Applicant’s failure to call witnesses.

[4] In our view, the arguments advanced by the Applicant fail.

[5] There is no dispute that the Applicant’s condition has worsened in the years since the accident. The central issue before the Arbitrator, however, was whether the Applicant met the onus of showing that the accident was a material or contributing cause of these conditions. She found that the Applicant had failed to meet that onus.

[6] The Applicant points to a number of statements in the Arbitrator’s reasons that she submits support the position that the Arbitrator failed to consider evidence that was before her. For example, the Arbitrator said there was “no documented medical history” of Applicant before the accident. The Applicant claims that there was such documentation before the Court and that this shows that the Arbitrator ignored evidence before her.

[7] The Applicant also takes issue with the Arbitrator’s statement that she “did not receive Dr. Perry’s medical records to substantiate her testimony” on the same basis.

[8] Similarly, the Arbitrator stated that she “did not receive in evidence any employment file from Canadian Tire”.

[9] Having reviewed the record before us, we are not satisfied that the Arbitrator did ignore or fail to consider evidence before her.

[10] With respect to the Arbitrator’s concern about the absence of pre-accident documented history in evidence, it is clear in the context of the reasons that the Arbitrator was referring to the absence of pre-accident medical records that were actually made before the accident. The only references to the Applicant’s condition before the accident by professionals who treated her before the accident were made by Dr. Perry, a chiropractor. His evidence was in the form of a report made subsequent to the accident. There were no records such as clinical notes made prior to the accident before the Arbitrator.

[11] It is also clear from the reasons that the Arbitrator was aware of this evidence. Similarly, while there was one Canadian Tire performance appraisal of the Applicant before the Arbitrator, the “employment file” in its entirety was not before the Arbitrator. The Arbitrator’s comment on the absence of the “employment file” as opposed to one performance appraisal cannot be reasonably interpreted to mean that she was ignoring the performance appraisal. Again, read in context, and in light of the importance of Ms. Turner’s pre-accident condition in the circumstances of this case, it was entirely reasonable for the Arbitrator to comment on the absence of the file as opposed to one selected document from it.

[12] In short, while the Arbitrator might have expressed this concern regarding the absence of evidence (other than that of the Applicant herself) in relation to her pre-accident condition more clearly, a full review of the reasons and materials filed lead us to the conclusion that she did not ignore or fail to consider evidence that was before her. Rather, she found it insufficient.

[13] The Applicant also submits that the Arbitrator’s failure to consider evidence before her was compounded by her conclusion that it was appropriate to draw an adverse inference from the Applicant’s failure to call pre-accident doctors or other witnesses regarding her pre-accident life. We disagree.

[14] The Arbitrator found that the evidence before her that was submitted by the Applicant was not helpful in the absence of any of these people being called as witnesses.

[15] The Arbitrator was entitled to so find.

[16] The Applicant bore the onus of proving that her post-accident conditions have been caused or materially contributed to by the accident. The Arbitrator, as upheld by the Director’s Delegate, found that she had not met that onus. It was reasonable to so find in the circumstances and on the record in this matter. We do not find that it was unreasonable for the Arbitrator to draw adverse inferences from the Applicant’s failure to call witnesses regarding her pre-accident life and health.

[17] Costs payable by the Applicant to the Respondent State Farm in the amount of $5,000.

Jennings J.

Dambrot J.

Harvison Young J.

Date: December 15, 2011