Sahadeo v. Pafco Insurance Company (19-006331)

A hearing regarding disputed medical benefits and catastrophic impairment over eight days. The parties commenced the hearing on January 18, 2022. Due to scheduling conflicts, the hearing was set to continue from March 28-30, 2022. Claimant’s counsel issued a summons via email to an insurance adjuster for the insurer for cross-examination. The insurer’s counsel argued that the summons was not properly served as it was provided via email; furthermore, they argued that claimant’s counsel should not be able to summons an adjuster as their own witness as they were an employee of the insurer. Vice-Chair Lester noted that the Tribunal was bound by LAT Rules, the SPPA, and more recently, HITPA; furthermore, a hearing Adjudicator was bound by case law regarding procedural fairness. In terms of the testimony of the adjuster, Vice-Chair Lester ruled that the adjuster’s testimony would be relevant as a special award was in dispute, and as the insurer had not articulated any prejudice as to the order of testimony, the adjuster may be called to testify at any time. In terms of how the adjuster was called, Vice-Chair Lester noted that the Rules of Civil Procedure do not apply to the Tribunal, and there were no similar provisions in the SPPA or Ontario Evidence Act that addressed the issue. Vice-Chair Lester ruled that the adjuster may be called, but that claimant’s counsel must begin with an examination-in-chief. Vice-Chair Lester noted that if the adjuster demonstrated that they were in fact a hostile witness, then it would be up to claimant’s counsel to request permission to cross-examine their own witness. Lastly, with regard to the validity of the Summons served via email, Vice-Chair Lester noted the HITPA allowed for the Tribunal to “vary the wording” in the SPPA to make orders that it considered appropriate. Vice-Chair Lester noted that claimant’s counsel stated that they attempted numerous times to obtain the adjuster’s address for personal service, however, declined to validate the email service as claimant’s counsel did not provide proof of these attempts. Vice-Chair Lester ruled that the insurer must provide the adjuster’s address for service by March 16, 2022 to ensure an opportunity for proper personal service. Parties were advised to make submissions on costs at the end of the hearing.