IME

1. On October 20, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued an Order following a Motion in S.  G. and The Personal Insurance Company. The order excluded an audio recording (the “recording”) from being admitted as evidence at the upcoming hearing. The recording was made by the applicant while attending an insurer’s examination conducted by Dr. Mascarenhas on January 16, 2015.

Ability to Cross Examine

19. 19.The applicant submits that the Tribunal erred by improperly limiting the applicant’s ability to cross-examine a witness’ credibility. By excluding the recording evidence without considering whether the probative value outweighs its prejudicial effect, the Tribunal improperly limited the scope of the applicant’s cross-examination.

20. 20.The applicant submits that the Tribunal erred in law because the applicant is not able to put forth any questions to the expert witness on cross-examination that relates to inadmissible evidence.  Therefore, if the recording is excluded then the applicant will not be able to question the witness’ credibility.

21. 21.I agree with the respondent’s submission that the Tribunal found that the purpose of the recording was to assess the credibility of Dr. Mascarenhas and that this can be accomplished at the hearing through the evidence of the parties.

22. 22.The applicant can provide oral testimony at the hearing regarding the assessment and his interactions with the doctor and then cross-examine the doctor on any alleged discrepancies.