Bakir and Dominion of Canada General Insurance Company (FSCO A12-002657)

Authored by: Matthew J. Cino

Honest belief of valid insurance found despite cash and barter deal; lay witness testimony sufficient to show proof of economic loss.    

Date Heard: December 21, 2017 | Full Decision [PDF]

This was a decision following ten hearing days that spanned over four months. The disputed benefits included income replacement, attendant care, and housekeeping. The Applicant tendered evidence from seven witnesses, including two experts.  The Insurer called no witnesses and instead relied on documentary evidence it submitted.

The 24-year-old Applicant was injured in a motor vehicle accident on September 22, 2011 while riding his motorcycle.  He was hit and thrown from his bike, sustaining a serious skull fracture along with fractures to his lower spine, jaw, forearm, and femur. He was placed in a medically induced coma at Hamilton General Hospital, and suffered a period of retrograde amnesia.  He underwent numerous surgeries for his injuries, and was in the hospital for over one month. The Applicant had exhausted his medical rehabilitation limits by the middle of 2014.

In addition to the disputed benefits, the Insurer raised a preliminary issue pursuant to Section 31 (1) (a) (i) that the Applicant is precluded from claiming income replacement and housekeeping benefits because he was not insured at the time of the accident.

The Insurer has the burden to prove that the Applicant knew or ought reasonably to have known that he was not insured at the time of the accident.   In considering Arbitrator Wacyk’s comments in Nwakwesi and Security National, Arbitrator Musson noted the term “ought reasonably to have known” refers to what a reasonable person, given the information of which the Applicant was aware, could reasonably be expected to understand, or know, from that information – it is not what a reasonable person would have done to inform him or herself.

In applying Nwakwesi, as well as Aksoy and Markel Insurance and Smith and Aviva Canada Inc. – both similarly involving insurance policies purchased through a cash and barter system – Arbitrator Musson found, on a balance of probabilities, the Applicant believed that he had purchased a legitimate insurance policy for his motorcycle for the following reasons:

  • Other than a noted spelling mistake, the slip looked legitimate. It listed a real broker, real insurance company, and all standard personal and vehicle information.
  • The Applicant presented evidence that the motorcycle was licensed and plated. This would have required the Applicant to show proof of insurance from an insurance provider licensed in Ontario to the Ministry of Transportation in order to register his motorcycle as well as get a permit and license plate.
  • The Applicant also testified that since the time he purchased the insurance for his bike, he was stopped by police at least twice. He produced his insurance slip, which was accepted as legitimate, and he was never issued a ticket for failure to produce or driving without valid insurance.

The Applicant’s success on this issue allowed the advancement of his claim for income replacement and housekeeping benefits.  With respect to pre-104 week IRBs, Arbitrator Musson found the Applicant did suffer a substantial inability to perform the essential tasks of his pre-accident employment.  From the Applicant’s testimony, Arbitrator Musson determined it was clear that the jobs he worked at could best be classified as “general labour/delivery trucker driver”.  The absence of the Applicant’s pre-accident employment tasks was a non-factor.  He went on to note:

     “…the Applicant’s injuries were so severe that the basic work and communication skills which form the foundation of virtually any employment are difficult for the Applicant to attain.  Some of these necessary skills include the Applicant being able to wake up on time to go to work, remembering simple tasks to complete and being able to control emotions and focus on the task at hand.  The Applicant and all of his witnesses testified that the Applicant was not able to do any of these tasks properly post-accident.”

With respect to post-104 week IRBs, Arbitrator Musson found the Applicant did not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.  On the evidence, the Applicant was able to increase his income in years three and four post-accident while working sporadic hours.

On the issue of attendant care, the insurer did not dispute the Applicant’s need – the disagreement was in the area of proof as it related to economic loss or incurred expense, and quantum.  Arbitrator Musson determined the Applicant qualified for attendant care benefits pursuant to section 19 of the Schedule, finding that the evidence given through the testimony of the Applicant’s witnesses was sufficient to show that attendant care services were incurred by the Applicant’s family members.  There was a promise to pay for these services, and there was evidence of an economic loss.

In analyzing entitlement to attendant care benefits, Arbitrator Musson was guided by the Court of Appeal in Henry v. Gore Mutual Insurance Co., as well as the FSCO decisions Deol v. Gore Mutual, Aidoo and Security National Insurance Co., and Tierney and North Waterloo in reaching a determination that the following constitutes economic loss:

  • The Applicant’s sister delayed starting a job because she was providing attendant care services to the Applicant, and only took on part-time supply teaching jobs and did not apply for full-time jobs because she needed to be available for the Applicant.
  • The Applicant’s brother, a student at Mohawk College at the time of the accident, had to drop out of school to provide attendant care to the Applicant. He lost money on his textbooks and tuition, which had been paid for, and repaid his OSAP loan.

Midway through the hearing the Applicant was deemed catastrophically impaired by the Insurer, and the issue of housekeeping was added.  Arbitrator Musson awarded housekeeping benefits from the date of loss to date and ongoing, finding the testimony of the Applicant’s family members showed the Applicant’s ongoing need for assistance with laundry, cooking, cleaning, and care of his dogs.

Finally, in addition to addressing the issues in dispute, Arbitrator Musson also offered important commentary with respect to surveillance, specifically social media.  Arbitrator Musson found that while video surveillance and the voluminous amount of Facebook posts from the Applicant’s social media account did provide a short glimpse into his behaviour while out in public, all of that evidence could be considered a snapshot in time and does not provide a true 24/7 view of his life.  He went on to note:

“No one can tell other than the person who posts the entries on Facebook the reason why the person chose to make the comments he did when it comes to Facebook and social media or selected the pictures that he chose to post.  As a result, the reliability of such evidence on Facebook is somewhat suspect both for the Applicant and the Insurer.”

 

Read the full decision [PDF]
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