Adverse Influence: The Appellant’s Downfall

Style of Cause:

Title of Proceedings:

  • Paul Michael Harriot v. Belair Insurance Company Inc.  Neutral Citation: FSCO A12-001758.

Paul Michael Harriot v. Belair Insurance Company Inc

Relevant Facts:

  • Mr. Paul Michael Harriot alleged that he was injured in a motor vehicle accident on June 5, 2010.  The respondent, Belair Insurance Company (“Belair”), paid benefits as stipulated in The Statutory Accident Benefits Schedule.  The dispute arose regarding Mr. Harriot’s entitlement for ongoing benefits.
  • The parties were unable to reach an agreement through mediation so Mr. Harriot sought relief by applying for arbitration to the “Financial Services Commission of Ontario under the Insurance Act.”  A pre-hearing discussion was held on July 10, 2012.
  • Mr. Harriot, Belair and their representatives, attended a pre-hearing discussion to address the disputed issues of: “medical benefits, attendant care benefits, [and] housekeeping.”
  • In March 2013, Belair learned through new evidence that Mr. Harriot was, in fact, “not injured in an ‘accident.’”  Mr. Harriot’s representative was granted an order to remove him from being the representative on record caused by a dispute between him and his client.
  • In April, 2014 a second pre-hearing discussion was held to determine if Mr. Harriot wished to continue his dispute.   He was duly served notice of the pre-hearing conference.
  • Since Mr. Harriot was absent from the pre-hearing, the arbitrator determined that since the onus was on the appellant to provide evidence to support his claim for further benefits, and since he failed to attend or provide evidence, the matter was dismissed with costs awarded to Belair.

Legal Issue:

  • Was the applicant entitled to further benefits from Belair for his alleged automobile accident injuries according to The Statutory Accident Benefits Schedule and the Insurance Act?

Answer:

Burden of Proof:

  • In drawing an “adverse inference” from the failure of Mr. Harriot to attend or give evidence at the latter pre-hearing, the arbitrator found that there was no further entitlement allowed pursuant to the Insurance Act.

According to US Legal, the onus or burden of proof is the:

most important rule of evidence in the trial of civil cases. Generally, burden of proof is on the plaintiff to show by a “preponderance of evidence” or “weight of evidence” that all the facts necessary to win a judgment are probably true.

US Legal

  • In citing “Wigmore on Evidence,” Dale A. Nance argued that the standard Wigmore set for judging the omission or suppression of evidence is rightfully a weighty factor in determining the merits of a case.  Wigmore, thus cited, states:

Such failure amounts to an implied admission that the evidence of the absent witness [or evidence] would be contrary to the party’s case, or at least would not support it.

Articles. “Adverse Inferences about Adverse Inferences: Restructuring Juridical Roles for Responding to Evidence Tampering by Parties to Litigation,”

  • In personal injury claims the plaintiff should call witnesses, such as doctors, to prove his claim for benefits (see Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at para 689).
  •  The absence of evidence must be explained and failure to do so tends to prejudice his/her case.
  • This leads to the impression that Mr. Harriot failed to attend or give evidence based on a lack of probative evidence.
  • It also lends credence to Belair’s new evidence that showed Mr. Harriot to not having been injured in the first place.
  • In reaching the decision, the arbitrator drew an adverse inference from the failure of the appellant to provide an explanation as to his need for further entitlement to benefits according to the Insurance Act.

Final Decision on Application:

  • Application dismissed.

Remedy:

  • The arbitrator award Belair’s costs in the amount of $1,500, including H.S.T., and disbursements.

Citation Information:

Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 1
., and the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Ann Barrow is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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