A recent appeal decision from FSCO serves as a stern warning to legal representatives who would play fast and loose with the disclosure requirements set out in the Dispute Resolution Practice Code.
In this case, no documentary disclosure was made by the Applicant to the insurer at either the mediation or the pre-hearing stage. The pre-hearing letter provided the standard warnings of the relevant provisions of the DRPC prohibiting a party from relying upon evidence that is not disclosed to the opposing party in accordance with the DRPC, and confirmed the agreement of the parties that disclosure of documents and of witnesses would happen in this case at least 60 days before the hearing.
The Applicant’s counsel failed to comply with the 60 day timeframe and with the 30 day disclosure deadline set out at Rules 39, 41, and 42 of the DRPC.
17 days before the hearing, an index of documents and a witness list was served, although the precise identity and nature of the evidence to be given by lay witnesses was not provided.
Counsel for the Insurer objected to the late disclosure and corresponded to counsel for the Applicant, advising that he would be objecting to the evidence being tendered at arbitration.
At the outset of the arbitration hearing, the Insurer brought a motion seeking the following relief:
a). The exclusion of any documents, reports, or assessments which the Applicant may rely upon during this Arbitration via Rule 39, making the Applicant’s hearing brief inadmissible;
b). The exclusion of all expert witnesses to be relied upon by the Applicant in this Arbitration via Rule 42; and
c). To exclude or excuse all other witnesses including the Applicant herself from testifying on her own behalf in this Arbitration via Rule 41.
Arbitrator Matheson allowed the Applicant to testify, but excluded all other evidence in respect of which late disclosure had been made.
The evidence of the Applicant alone, in the absence of any documentary or expert evidence, was insufficient to make out her claim for benefits and her claims were therefore dismissed in their entirety.
The Arbitral decision was upheld on appeal. Director’s Delegate Blackman introduced his analysis of the issues as follows:
To allow this appeal, in the extraordinary circumstances of non-compliance in this case, would be not only to render the Code virtually meaningless, but to set a precedent of allowing late service and notice that would ultimately be especially detrimental to insured persons when on the receiving end of late delivery, thereby undermining the intended consumer protection of this process.
There are several take-homes from this case for legal representatives appearing before the FSCO (recognizing that the rules before the LAT are more strict than those of FSCO).
First, assume that FSCO is serious about promoting early and fulsome disclosure in the dispute resolution process. Ask for productions early, and follow up if a response is not forthcoming. Similarly, respond to production requests made of your client in a timely way.
Second, remember that the 30 day deadline for disclosing evidence before the arbitration is the latest acceptable point in time for disclosing evidence, absent “extraordinary” circumstances relative to documentary disclosure, and cogent reasons relative to the anticipated testimony of lay and expert witnesses.
If you act for an insurer in a case where the Applicant provides late disclosure, be certain to register in writing your client’s objection to that evidence being admitted at arbitration, and give notice of your intention to seek an order excluding evidence that was not disclosed in accordance with the DRPC.
If you are in the position of attempting to rely upon evidence that was not disclosed in accordance with the DRPC, make sure that you arrive at the hearing armed with evidence setting out the extraordinary circumstances giving rise to the late disclosure, as well as case law to support your client’s position (all of which should also be provided to the opposing party in advance).
In this case, the costs of the appeal were ordered payable by the legal representatives personally. Delegate Blackman concluded that the insured should not have to pay the insurer’s appeal costs given the “magnitude, gravity and persistent non-compliance of her counsel.”
Ouch.
One additional take home involves the question of whether the Applicant herself could be precluded from testifying given that no notice of her evidence was provided at least 30 days before the hearing. The hearing Arbitrator noted that, unlike the adjuster from an insurance company, the Applicant has a dual role as party and witness. As a party, she could not be precluded from testifying even though, as a witness, notice should have been given that she would be called to testify. The corollary to this is that it is incumbent upon an insurer seeking to cross examine the Applicant to give notice of its intention in that regard in accordance with the DRPC.
