Neutral Citation: 1991 ONICDRG 5

File No. A-000251

ONTARIO INSURANCE COMMISSION

BETWEEN:

VITO LUIGI CALOGERO

Applicant

and

THE CO-OPERATORS

Insurer

DECISION

issue:

The Applicant, Vito Calogero, was injured in a motor vehicle accident on September 14, 1990. He applied for personal injury benefits and received $252.00 per week, payable under Regulation 273/90 under the Ontario Insurance Act, R.S.O. 1980, Chapter 218, as amended, ("No-Fault Benefits Schedule").

The Applicant is a self-employed vendor of skin care and cosmetic products.

He claimed weekly income benefits payable at the maximum rate of $600.00 per week. He provided order forms and other documents to verify his claim for weekly income benefits. The Insurer did not accept the Applicant's documentation of his earnings. The Applicant applied for mediation on the issue of the amount of weekly benefits. Mediation failed to resolve the issue, and the Applicant subsequently applied for the Appointment of an Arbitrator.

The issue to be determined at the arbitration hearing is:

What is the correct amount of the weekly income benefits payable to the Applicant?

Result:

The Decision is:

The Applicant is entitled to weekly income benefits of $185.00.

Hearing:

A hearing was held at North York, Ontario on September 3, 1991 and resumed on September 30, 1991 and October 1, 1991 before me, Frederika M. Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Vito Luigi Calogero

For the Insurer:

Tony Zierler of The Co-Operators

Applicant's Legal Rep:

John J. Lawlor, Barrister & Solicitor

Insurer's Legal Rep:

Stephen Malach, Barrister & Solicitor

Wendy Stephens, Law Clerk

Witnesses for the Applicant:

Charles Pecorella

Marilyn Nelson

Antonetta Del Rosso

Cathy Tucker

Mafalda Bertoni

Sugunarajan Thambithurai

Savino (Sam) Calogero

Slava Desanti

Igor Vujovic

Artemis (Tammy) Calogero

Catherine Ann Lawlor

Witness for the Insurer:

Sara Lynn Gail Williams

The Applicant's Evidence:

The Applicant, Vito Calogero, gave sworn testimony with the assistance of Joseph Dionigi, an Italian interpreter. He explained that he was a self-employed vendor of Nu Skin cosmetic products. His income for the four weeks prior to the accident consisted of his profits from his sales of Nu Skin products. Nu Skin is a "network marketing" operation where vendors purchase skin care and cosmetic goods from the company, and retail the products to customers. Vendors can also earn income by recruiting others to distribute the product. They earn a percentage of the profits made by the distributors they have recruited.

The Applicant's evidence about his earnings from Nu Skin consisted of his own testimony, the testimony of his witnesses, and certain documents that he introduced to support that testimony. He claimed that all the documentation that he introduced pertained to the four-week period before the accident, namely August 16 - September 13, 1990.

The Applicant testified that Exhibit 1 is evidence of his sales to Miranda Oliva. The exhibit consists of a handwritten note addressed "TO WHOM IT MAY CONCERN" stating that Miranda Oliva confirms her purchase of Nu Skin products from Vito Calogero. Miranda Oliva purchased products for $360.90, which were delivered and paid for in full on August 16, 1990. The note is accompanied by a photocopy of a Nu Skin retail order form that indicates products were purchased for $337.75 plus $23.25 sales tax, for a total of $360.90 (sic). The form is marked "PAID CASH August 16, 1990".

The Applicant testified that the note accompanying the invoice at Exhibit 1 was prepared because the insurance company said that the invoice itself was insufficient. The Applicant testified that he prepared the note and left it with Mrs. Oliva to sign, to confirm that she had purchased the product from him.

Exhibit 2 is a similar note and retail order form for Cathy Tucker. The order form indicates that Cathy Tucker ordered and paid for $598.05 worth of goods with sales tax of $48.00, for a total of $646.05. The retail order form is marked "PAID CASH August 4, 1990". It is accompanied by a note addressed "TO WHOM IT MAY CONCERN" indicating that Cathy Tucker confirms that she purchased Nu Skin products sold to her by Vito Calogero. The note states that the products were demonstrated on two occasions and were delivered and paid for in full on August 31, 1990.

The Applicant testified that he had a video tape demonstrating the products, and that he showed this video tape to Cathy Tucker. He testified that she purchased products for $646.05 in cash. He testified that although the invoice is marked August 4, 1990, the cash was actually received on August 31, 1990. The Applicant testified that Cathy Tucker wrote the note in her own handwriting. After being questioned about this further, the Applicant stated that he wrote the note himself, and then presented it to Cathy Tucker for her signature.

The Applicant testified that Exhibit 3 is evidence of a purchase of products for $772.26 by Anna Frangos. A note purportedly signed by Anna Frangos indicates that she purchased Nu Skin products, which were demonstrated twice, on August 4 and August 31, 1990. The products were delivered and paid for in full by cash on August 31, 1990. The retail order form indicates that products for $772.20 were purchased and sales tax of $55.40 was added, for a total price of $827.60. The order form is marked "PAID CASH August 4, 1990". The Applicant testified that Anna Frangos paid for her purchase on August 31, 1990. He testified that he prepared the note and gave it to Anna Frangos to sign after the mediation was finished.

Exhibit 4 is a retail order form issued to Charles Pecorella showing the following purchases:

Total Kit

$ 592.15

Two litres Shampoo

175.00

Two litres Conditioner

175.00

Total Price

$ 942.15

Sales Tax

75.00

Total Remittance

$1,017.15

The retail order form is marked "PAID CASH September 7, 1990".

A handwritten note addressed "TO WHOM IT MAY CONCERN" is also provided to confirm that Charles Pecorella purchased Nu Skin products from the Applicant in the amount of $1,017.00 (sic) on September 7, 1990. The goods were received and payment was made in cash on that date. The note also provides a telephone number and indicates that the client can be called if further information is required. The Applicant testified that on September 7, 1990 Charles Pecorella made the purchase. He also testified that Charles Pecorella prepared and signed the note.

The Applicant testified that Exhibit 5 is a retail order form documenting purchases made by Antonetta Renna, for $1,292.00 plus sales tax of $103.29, for a total remittance price of $1,395.29. The order form is marked ""PAID CASH August 31, 1990"". It is also marked ""WILL BE DELIVERING on September 15, 1990"". The Applicant testified that this document was investigated by the company, who spoke directly to the client involved, in order to verify that the document was authentic.

The Applicant testified that Exhibit 6 is a distributor agreement dated July 26, 1990, which he signed so that he could sell products for the Nu Skin company. The Applicant testified that the date was written by Marilyn Nelson who is his sponsor - the individual who introduced him to the product. As his sponsor, Marilyn Nelson got 5% from all his sales. The Applicant confirmed that he started with Nu Skin on July 26, 1990 as indicated by the contract date. He testified that Marilyn Nelson introduced him to Nu Skin by showing him some programs and video tapes, explaining the benefits of the products. He also attended some meetings at the Holiday Inn. He then decided to become a distributor and signed the distributor agreement.

Exhibit 7 is a distributor agreement dated August 1, 1990 made between the Applicant and Igor Vujovic. A handwritten note at the top of the agreement states "BOUGHT $231 EACH KIT $350". The Applicant testified that Mr. Vujovic worked as credit manager for a bank at which the Applicant was a client. The Applicant explained the Nu Skin program to Mr. Vujovic, who was interested in it. On July 31, Mr. Vujovic called the Applicant at home and indicated that he wished to become a distributor. Mr. Vujovic paid the Applicant approximately $350.00 for a kit with various products in it. The Applicant testified that he himself paid $350.00 to Marilyn Nelson for the same kit, when he became a distributor. The Applicant explained that as a result of recruiting Mr. Vujovic, he would receive 5% of whatever Mr. Vujovic sold.

The Applicant testified that Exhibit 8 is another distributor agreement that he signed with Sugunarajan Thambithurai on September 15, 1990. Mr. Thambithurai paid $349.69 for a kit and a contract. The Applicant testified that he made $115.00 or $120.00 on every $350.00 kit that he sold to a new distributor. He stated that he thought he paid about $230.00 for the kit. The agreement is also marked, in handwriting, "BOUGHT $231.00, EACH KIT $350". The Applicant testified that he did not know who wrote the numbers that are handwritten on top of the agreement.

Accompanying Exhibit 8 is handwritten note headed "TO WHOM IT MAY CONCERN". It states that Sugunarajan Thambithurai signed the distributor contract on September 5, 1990 and that the contract was postdated to September 15, 1990. Mr. Calogero was paid cash on September 13, 1990 and the items were delivered September 15, 1990.

Exhibit 9 is a distributor agreement, made with Catherine A. Lawlor, dated September 24, 1990. The Applicant testified that although the agreement was signed on September 24, his work to secure the contract was all done before that date.

Exhibit 10 is a distributor agreement made with Savino Calogero, dated September 26, 1990. The Applicant testified that Savino Calogero is his nephew. Although the contract was signed on September 26, the Applicant testified all the work relating to this contract was done two to three weeks previously, because he had to educate the new distributor before the contract could be signed.

Accompanying this item is a handwritten note addressed "TO WHOM IT MAY CONCERN", signed by Savino Calogero. The note indicates that Savino Calogero was approached by Vito Calogero in August 1990 regarding Nu Skin products. The Applicant demonstrated the product and Savino Calogero became interested in becoming a distributor in August, 1990. He met with the Applicant five or six time and he signed a contract at the end of August, 1990. The note indicates that the contract was signed and postdated September 26, 1990 but "I made my mind to closing September 10, 1990 and I paid cash to Vito Calogero of $350.00 for my distributor agreement and my kit. The mony (sic) was paid cash on September 10, 1990." The note is signed "Sam Calogero", and witnessed by C. Pecorella.

The Applicant testified that he, himself, had prepared the note that was signed by Savino (Sam) Calogero. The Applicant testified that the funds were paid on September 10, not September 26, 1990, as indicated on the contract.

The Applicant testified that Exhibit 11 is a copy of a Sales Aid Order Form dated August 2, 1990. The form documents an order for sales aid products made by the Applicant.

Exhibit 12 is a copy of a Sales Aid Order Form dated September 26, 1990.

The Applicant testified that Exhibit 13 is a copy of a Product Order Form dated August 2, 1990, which shows that he ordered products that cost $570.00, including tax. The Applicant testified that he paid $570.00 to Nu Skin, and the order was filled at the Nu Skin offices in Oakville. The Applicant testified that Exhibit 14 is a Product Order Form for products totalling $103.74, including tax. The order form is marked "PICKUP" and dated August 16, 1990. The Applicant testified that Marilyn Nelson made this order on his behalf and delivered the products to him. The Applicant paid for this order by VISA. He testified that Nu Skin accepts VISA payments but does not accept personal cheques. The Applicant gave the company his VISA number and that way his colleague could pick up his order and deliver it to him.

The Applicant testified that Exhibit 15 is another Product Order Form dated September 25, 1990. The Applicant testified that although this order is dated after the accident and the goods were received after the accident, the goods in question were ordered in order to fulfil his outstanding obligations to clients. The Applicant testified that the goods were delivered to his house while he was away. A neighbour accepted the goods on his behalf. The Applicant stated that the goods had been ordered prior to his accident.

The Applicant introduced Exhibit 16, which is a copy of an undated Retail Order Form and a handwritten note signed by Mafalda Bertoni. The order is for hair conditioner and shampoo retailing at $13.50 each, for a retail subtotal of $26.30, to which sales tax of $2.10 is added, for a total of $28.40. The note states "I Mafalda Bertoni, I paid Mr. Calogero $28.34 for product CASH to Mr. Calogero August 18, 1990". The Applicant testified that Mafalda Bertoni ordered the products on August 18, 1990. He stated that he prepared the note for Mafalda Bertoni and Mafalda Bertoni signed it.

Exhibit 17 is a copy of a Retail Order Form with a note signed by Antonetta Del Rosso. The note states "I paid Mr. Calogero cash $74.89 on August 22, 1990 for Nu Skin product." The order form is for products for $69.35 and tax of $5.54, for a total of $74.89. The Applicant confirmed that the total was $74.89 and verified that he prepared the note that Ms. Del Rosso signed.

Exhibit 18 is a Retail Order Form for Tammy Calogero, indicating that 2 shampoos were bought for $26.30, plus $1.47 tax, for a total of $27.77. This form is accompanied by a note that states "I, Tammy Calogero paid Mr. Vito Calogero $27.77 CASH on August 30, 1990 for Nu Skin products."

The Applicant testified that Tammy Calogero wrote the note and signed it.

Exhibit 19 illustrates the marketing plan of Nu Skin Canada.

Exhibit 20 explains the marketing compensation plan; that is, how individual distributors and executives with Nu Skin are compensated.

Exhibit 21 was prepared by the Applicant, and purportedly summarizes his expenses, sales and profits from Nu Skin Canada during the four weeks prior to the accident. According to this document, the Applicant made a profit of $1,882.18 from sales of Nu Skin products. He also made a profit of $525.00, $125.00 per distributor, from recruiting four distributors.

The Applicant was cross-examined by counsel for the Insurer. He was questioned about his claim for $600.00 weekly income benefits. Counsel put it to the Applicant that on the figures that he has presented, he would not be entitled to $600.00 per week. The Applicant responded that he did not know. The Applicant confirmed that the figures in Exhibit 21 all represent sales that occurred prior to the accident. He confirmed that according to his figures, the total sales were $4,378.32, plus $525.00 from recruiting four distributors.

Counsel for the Insurer introduced Exhibit 22, a typewritten document that was sent by the Applicant to the Insurer. Exhibit 22 indicates that the Applicant "sold a total of approximately $8,986.60 worth of Nu Skin products" prior to the accident. Counsel cross-examined the Applicant about this letter. The Applicant stated that the letter was not signed by him and he admitted that the calculations in it are wrong. The Applicant stated that his daughter-in-law, Tammy Calogero, typed the letter at his request. Although he had submitted this letter to the Insurer, the Applicant confirmed that it contained errors.

Counsel also submitted Exhibit 23, a typewritten list entitled "Nu Skin, August 1990" that purports to list all of the Applicant's sales for that month. The list indicates a number of sales by name. A number of figures are listed under the heading "Sold" and certain items are marked "VISA". The figures are added to arrive at $8,986.60 total sales, the same figure that appears in Exhibit 22. The Applicant confirmed that he had provided this document to the Insurer, to show his total sales for the period before the accident. The Applicant was cross-examined about some of these sales but could not answer specific questions. He did indicate that one item of $535.90 was a purchase from Nu Skin and did not represent a sale to a customer.

The Insurer introduced Exhibit 24, a copy of the Applicant's VISA bill for September, 1990. It shows a purchase from Nu Skin in the amount of $535.90, which corresponds to an amount marked VISA in Exhibit 23. The Applicant admitted that this was a purchase, and not a sale of products to a customer.

The Insurer introduced Exhibit 25, a VISA bill for October 1990, showing credits and purchases from Nu Skin, which also correspond to items in Exhibit 23. The Applicant confirmed that the list of sales in Exhibit 23 is not accurate and that the total of $8,986.60 is not correct. The Applicant was questioned about the items listed under VISA in Exhibit 23 and he conceded that they were all purchases, rather than sales. He explained that after he purchased the items, he then resold them.

The Applicant was questioned about Exhibit 25, the VISA bill, which shows purchases made from Nu Skin on September 26 and 27, after the motor vehicle accident. The Applicant conceded that he paid for these items after the accident, but he stated the orders for items were taken before the accident had occurred. The Applicant was questioned about the customers and orders that he had documented in his exhibits. He stated that those customers had all purchased and paid for their products prior to the accident. He was not able to explain which customers had made orders prior to the accident, that needed to be filled after the accident.

The Applicant was also questioned about a sales aid that he had purchased for $93.34 that appears in Exhibit 23 as an item sold. The Applicant responded that this was a mistake. The Applicant also confirmed that an item in Exhibit 23, that appears to be a sale for $417.50 was actually a sales aid purchased for $4.50. He also admitted that an item for $873.27 is a purchase rather than a sale. However, he again stated that after he purchased these items, he re-sold them. The Applicant confirmed that Exhibit 23 is not accurate and precise, and that his daughter-in-law prepared it. He denied that it was deliberately prepared to mislead the Insurer.

The Applicant was questioned about the price at which he sold products to his customers. He stated that he charged customers 43% more than the price at which he bought the goods. The Applicant was questioned about his tax calculations in Exhibit 13, which appear to be wrong. It was also put to him that he sold Face Care products for $2.00 more than the suggested list price. The Applicant responded that he is not a mathematician, and that it is possible he made some errors. Counsel questioned the Applicant about Exhibit 2, which shows that products were not sold at the suggested list price. The Applicant reiterated that his selling price was 43% higher than the purchase price.

The Applicant was cross-examined about adding mistakes in some of the Exhibits. He responded that if there was a small mistake it should not make a difference, so long as the client had paid and was satisfied. The Applicant denied that he tried to cheat any of his clients. He stated the clients were happy and paid the prices requested. The Applicant was questioned in particular about the sale documented as Exhibit 3 where he charged Anna Frangos $772.20 for a skin care package. Exhibit 13 (the Produce Order Form) shows that the suggested retail price for the package was $540.15. The Applicant was asked why he overcharged the client. He responded that the client was happy and paid the price. He also stated that it could be that there were errors in the prices that he charged. He later testified that Anna Frangos had received higher quality products than those that were normally supplied in the packages, and that was why he charged her a higher price. The Applicant stated that he wrote "Total Package", but other things were added to the package.

Counsel for the Insurer prepared three documents, pertaining to the Applicant's alleged business activities. Exhibit 26 lists the alleged purchases by client, pursuant to the evidence filed by the Applicant. Exhibit 27 lists all the products that are required to fill those orders. Exhibit 28 lists the actual products ordered by the Applicant, according to Exhibits 13, 14 and 15 (the Product Order Forms).

Counsel put it to the Applicant that he had not ordered the products that he would have needed to supply his customers. He asked the Applicant to document, with order forms, that those items had actually been purchased by him and sold to customers. The Applicant stated that he bought everything from the company, although he was not able to correlate his purchases from the company with sales to customers. He stated that the documentation is not important; what is important is that he sold and delivered these items to his customers. He stated that some of the items could be obtained in two or three different places. He could have purchased them from the Nu Skin warehouse in Oakville or from New York, or he could have purchased the products through a colleague. The Applicant stated that he did not go to the United States to purchase products, however, he did purchase products from colleagues from time to time. He testified that he made a purchase from his sponsor, Ms. Marilyn Nelson, worth $399.00.

The Counsel for the Insurer put it to the Applicant that he paid Marilyn Nelson a cheque for $349.00 when he became a distributor and bought a starter kit. The Applicant agreed that this was the case, but he stated that he also bought goods from Marilyn Nelson when he needed them. These transactions took place about a year ago and he does not remember them all. The Applicant also stated that he made several orders that were delivered to him by his colleague, Slava.

The Applicant was questioned about where he obtained such items as automatic hair conditioner and shampoo, since he purportedly sold these items, but there are no purchase orders for them. The Applicant indicated that some of the items came from kits or packages, which he broke up.

The Applicant was asked why some of his exhibits are marked "PAID CASH" and who marked them. The Applicant stated that when he wrote a purchase order he marked it "PAID CASH", if he received cash that day. The Insurer noted that Exhibit 2 states "PAID CASH" August 4, 1990". The Applicant was asked whether he received cash that day. He stated that he did not receive cash that day because the client wanted another demonstration. He was ultimately paid cash on August 31, 1990. Counsel for the Insurer put it to the Applicant that he states that he was paid on August 31 rather than August 4, because that would place him within the relevant time period for accident benefits, but the Applicant denied that this was the case. The Applicant confirmed that he had written the note at Exhibit 2.

The Applicant was questioned about records supplied by Nu Skin that show that he placed only four orders for products. The Applicant denied that was correct, but he was unable to produce any other records of orders. He stated that he had not been able to obtain complete records of his orders from the company. The Applicant confirmed that he had spoken to Sara Lynn Williams of Nu Skin several times in an attempt to retrieve more records, but was not able to get anything more. He stated that the company's records were not complete due to problems with the computer. The Applicant was questioned further about how he priced the items he sold. He stated that his price was 43% in addition to the wholesale price, but he sometimes made errors because he is not perfect in math. He also stated that very frequently he would buy a package and then break it up and assign his own prices to various items.

Counsel for the Insurer introduced Exhibit 33, a document that sets out the Insurer's position as to the Applicant's alleged sales. Exhibit 33 summarizes the information from the Applicant's exhibits and shows the sale price, the cost and the profits from each sale. With respect to Exhibit 33, the Applicant indicated that some of his costs, which are taken from the prices listed on the order forms, were not stated correctly. The Applicant testified that some of the costs were not the wholesale prices as indicated in the order form, because the customer chose different articles than those normally included in a particular kit or package. He also explained his method of calculating his profits, namely, he took 43% of the total sales price, including tax as his profit. The Applicant repeated that, with many of his sales, he took individual items out of packages and charged prices that he felt were appropriate. For that reason, he could not show individual wholesale orders for the particular items.

In cross-examination, the Applicant confirmed that certain goods were delivered to or picked up by clients after the accident. He testified that orders for certain items, although dated after the accident, were actually placed prior to the accident, by phone. The Applicant reiterated that he made the orders in Exhibit 15 in August, but they were only received on September 25, 1990, is the date on Exhibit 15. He stated that this order was "postdated" to VISA.

The Applicant repeated that all the items ordered after his accident were ordered to fulfil obligations incurred prior to the accident. He stated that he took on no new obligations to his clients after September 14, the date of the accident. However, in response to further cross-examination by Counsel for the Insurer, he could not identify any outstanding obligations that required a new order after the date of the accident. He confirmed that all the orders that were documented had been delivered prior to the date of the accident. When cross-examined in detail about this by counsel, the Applicant suggested that counsel wished to confuse him. He stated "the reality is there, I don't have to show anything" when asked to produce a customer order showing why he had to purchase products.

Counsel for the Applicant summarized his position in a one-page document entitled "Position of Applicant, Vito Calogero". The document lists the Applicant's sales, as shown by his exhibits. The total sales are $5,462.86. The document also lists the Applicant's purchases, as shown in the exhibits, and from the oral evidence of his witness, Marilyn Nelson. The total cost of the purchases is $1,946.84. The Applicant's total profit for the four weeks in question is derived by subtracting the cost of the purchases from the total sales, that is $5,462.86 - $1,946.84 = $3,516.02.

Counsel argued that the Applicant's sales were legitimate, and that the Applicant's witnesses supported the Applicant's position that he did indeed make these sales during the relevant period, between August 16 and September 13, 1990. Counsel submitted that the Applicant's evidence is that he broke up orders, and that he sold individual items at his own prices as he saw fit. Therefore his profit is perhaps more than the 43% that would normally be expected. Counsel argued that the Applicant's profit is indeed $3,516.02 as set out in the submission document.

The Applicant's Witnesses:

The Applicant called Charles Pecorella who gave evidence that he solemnly affirmed was true. He stated that he is 26 years old. He testified that he recognizes the retail order form marked Exhibit 4, and he acknowledged his signature. He also recognized the note with his signature. He testified that he saw the Applicant in August 1990 and he was curious about the Nu Skin products. He stated that he paid the Applicant roughly $1,000.00 for Nu Skin products. He testified that the bill of sale is dated September 7 and that was the day that the transaction took place and he received products from the Applicant. The witness testified that the Applicant wrote the date when he handed over the products, and did not postdate the receipt.

Marilyn Nelson gave evidence under oath. She testified that she knew the Applicant because he had attended a real estate class that she taught. She testified that she called the Applicant about Nu Skin products because she thought he would be interested in the Nu Skin marketing plan.

She testified that she joined the Nu Skin operation in July 1990, and the Applicant joined it the same month. She explained that the products are sold by means of "network marketing". Network marketing is a form of marketing in which people share the product with others, who in turn share it with others, and so on. Training is available for sales representatives, and usually takes the form of meetings, which new representatives are encouraged to attend for about six months. The business opportunity is explained at the meetings. Training is also available from "uplines". She stated that she is the Applicant's "upline" because she approached him and he agreed to sell the product as a direct distributor under her sponsorship. She exposed the Applicant to the opportunity to sell the product, and she advised him about meetings that were taking place. She testified that her sponsor or "upline" was Perry Di Manis and Slava Desanti was his sponsor. Since her sponsor, Perry, did not know much more than she did, she took her training from Slava.

The witness explained that a Nu Skin sales representative would purchase the product at the wholesale price, and mark it up 43% to sell to a customer. The witness testified that she lives in the east end of the city, but Slava, her "upline" executive, lived in the west end, a block or two from the Nu Skin warehouse. Slava would come over to the east end about twice a week to help out and so the witness would ask her to pick up some products for her. She testified that normally Slava made purchases in the name of the sales representative who requested the product. The witness testified that she had asked the company for computer printouts of her sales, but could not get them from the company. She testified that the company records are very skimpy and are not totally accurate. She testified that she believes the company records were computerized around the beginning of 1991.

The witness testified that she is still an executive with Nu Skin. She explained the sales order form. She testified that every time she signs up a new distributor, the first thing necessary is that they get sales aid kits, and order forms for sales aids. The sales aids exist to show people the product and to provide samples for demonstration. She also explained the purchase order forms. She testified that she had set up the Applicant as a distributor, and told him what he needed. She spoke with the Applicant on a regular basis over the phone since, in part, her success depended on his success.

The witness testified that there is no policy as to the retail price at which the distributor must sell. The witness knows that some people sell product at twice the suggested list price. The witness explained that "kits" contain not only products, but also promotional items. In contrast, "packages" are products for sale to a consumer. A person who just wanted products would purchase a "package", whereas a distributor would purchase a "kit", which contained products as well as promotional items.

The witness testified that from time to time, the Applicant asked her to pick up product on his behalf. In that case, she would get the product from Slava and pass it on to the Applicant. This occurred on several occasions.

The witness testified that Slava sometimes picked up Nutriol, a product available in the United States, but not available in Canada. She got some from Slava and sold it to the Applicant, at wholesale prices. She testified that she sold at least two skin-care kits to the Applicant for $250-$260. She testified that she sold a Nutriol kit to the Applicant. She also sold items from an opened kit on two different occasions. The Applicant had been calling on hairdressers and wanted hair care items from a broken kit, such as shampoos and conditioners. Usually there was no need to keep paper records of these purchases and sales. Her focus was on helping the Applicant to become a successful distributor.

The witness testified that from the time the Applicant was injured in the accident, he was in quite a lot of pain. After the accident he was not as active in Nu Skin sales. She thought the accident occurred sometime in September 1990, but she did not recall the exact date. The witness did not remember whether the Applicant placed any orders with her after the accident.

In cross-examination, the witness denied that Nu Skin is a pyramid sales scheme. She explained that the "upline" goes up five levels, and that each executive on the "upline" would get a certain percentage of the sales. She testified that the sales representative is actually a middleman. The witness testified that she did not know whether the Applicant actually sold the Nutriol product, but she stated that at the time in question, it was not available in Canada and had to be purchased from the United States. The Applicant had to purchase it from her, because it was not otherwise available to him. She explained that basic freight and delivery charges are already included in the price of the Nu Skin products. However, additional freight charges were listed on the order forms.

The witness testified that normally, she stays with the retail prices that are suggested by the company. However, she has heard that other people charge more and everyone has the freedom to charge whatever they feel is a fair price. She explained that as an executive, she is sent a computer printout showing all the purchase orders made by the Applicant. Prior to becoming an executive, she did not receive the printouts. Last year, she did not receive printouts, and did not know what the Applicant purchased from the company, or whether he had purchased any goods after the accident.

Antonetta Del Rosso gave evidence under oath, with the assistance of an Italian interpreter. She testified that the Applicant is her brother, and that she bought Nu Skin products, including face creams and body creams, from him. She testified that she remembered buying products from him on August 31, 1990 and that she spent approximately $74.00. She paid for the products when she received them on August 31, 1990. She confirmed that her signature appears on Exhibit 17. She testified however, that she did not remember whether or not she actually wrote the note. She admitted that she is not able to read English and she does not know what the note says. She stated "if he filled the note for me, what's the difference, the essential is that I bought the product". Counsel for the Insured put to her that the note states that she bought the product on August 22, 1990 rather than August 31, 1990. The witness responded that she did not remember.

Cathy Tucker gave evidence under oath. She testified that she is the Applicant's daughter, and that she purchased products from him. She testified that she attended a meeting about Nu Skin together with her father. She thought the products were good and she was interested in Nu Skin.

The witness testified that she bought and paid for products from her father on August 31, 1990. She bought a kit from her father because she wished to sell the products, but then found she did not have enough time.

She testified that she paid $646.00 for the kit. She did not write "PAID CASH" on the receipt. She testified that although the receipt says August 4, 1990, she received the goods on August 31, 1990. She does not remember what day that was. She does not live with her father. Her father came to her house to deliver the goods in the evening, and she paid him cash.

Mafalda Bertoni gave evidence that that she solemnly affirmed was true. She testified that the Applicant is her brother-in-law and that he sold her Nu Skin products last year. Her brother-in-law advised her that the products were good for her, and she was truly satisfied with the products she bought. She paid for the products on August 18, the day they were delivered.

She testified that she can read English. She was questioned about Exhibit 16 and testified that she read the document and signed it. She remembers that she received the products on August 18. She is a pensioner and she wrote everything down on her calendar, however, she was not able to produce the calendar where she noted that she received the products. It was last year's calendar, which she threw out. She testified that she received the products around the time that she received her pension cheque. The cheque arrived on the 24th or 25th of the month. She remembers that she received the Nu Skin products on the 18th because at that time, she knew the cheque would come in a few days. She cannot remember what day of the week August 18 was.

Sugunarajan Thambithurai gave evidence under oath. He testified that he knows the Applicant and that the Applicant introduced him to Nu Skin products. He bought product from the Applicant for $350.00. He paid for it on September 13 and took delivery of the product on September 15, 1990. He does not have a copy of the invoice. He testified that the Applicant asked him to sign the paper which is part of Exhibit 8. At that time, the Applicant showed him a copy of the invoice. The witness testified that he signed the paper because the Applicant asked him to. He does not remember the dates on which he actually purchased and received the goods from the Applicant. The dates that appear on the paper are the dates that the Applicant suggested. He cannot remember or verify whether those dates are correct.

Savino Calogero gave evidence that he solemnly affirmed was true. He testified that the Applicant is his uncle. The Applicant introduced him to Nu Skin products on September 10, 1990. The witness bought a package worth $349.69 from the Applicant. He testified that he paid on September 10, 1990, that he took delivery of the products on that day, but that he signed papers on a later date. In cross-examination, he reaffirmed that September 10 was the date that he took delivery and paid for the products. He remembers the date because it was just before his mother's birthday. His mother's birthday is on September 14. He cannot remember what day of the week that was. When asked again how he recalls that it was September 10, he testified that his brother Claudio had a soccer game on that day, and he remembers because soccer is important. However, in cross-examination, he could not remember the date of the last soccer game played by his brother.

Slava Desanti gave evidence under oath. She testified that she used to be an executive distributor with Nu Skin and that she became involved with the company approximately two years ago. She does not recall the exact date. She heard about Nu Skin in Florida, and about two months later became involved with it in Toronto. She first signed up as an American distributor, but became a Canadian distributor when the Canadian market opened up in mid-February. At that time, she started building a business and recruiting other potential distributors. She recruited distributors by approaching people who were entrepreneurial, to explain the Nu Skin business plan. She knows Marilyn Nelson, who she met through another distributor. Marilyn Nelson was recruited two levels down from her. She met her the same year that she became a distributor.

She testified that she lives near the Nu Skin warehouse in Oakville. From time to time, Marilyn Nelson used to ask her to pick up product. She remembers delivering products both to Marilyn Nelson and to the Applicant. She believes that she delivered product to the Applicant on at least two or three occasions and to Marilyn Nelson more often than that. In cross-examination, she confirmed that the product order form shows two prices, the suggested retail, and the wholesale. She testified that she normally charges customers the suggested retail price. She stated that she would consider it unethical to charge a customer more than the suggested retail price. She trains people according to a code of ethics but it is up to the individual to sell at his or her own price. She confirmed that she was supposed to get reports of sales from all the people who are "downlined" from her, but because Nu Skin was a new company, at the beginning the reports were not arriving regularly. She confirmed that she is required to pay income tax on her earnings, but that she is not required to keep both invoices and sales records. She did keep copies of her sales records and other documents from Nu Skin.

Igor Vujovic gave evidence under oath. He confirmed that he works at the Canadian Imperial Bank of Commerce and that the Applicant was a customer at his branch. He testified that he became familiar with Nu Skin through the Applicant, in July or August 1990. The Applicant introduced him to the product and showed him a video. He had some talks with the Applicant. He went to a meeting and eventually signed up as a distributor. The Applicant was his sponsor. He paid the Applicant $350.00 for a kit.

The witness testified that he signed on with Nu Skin in the beginning of August 1990. He received and paid for the kit towards the end of August, after he went to a few more meetings. In cross-examination, he confirmed that he read the agreement before he signed it, that he signed the agreement on August 7 and gave the Applicant his VISA number. The Applicant came back one or two weeks later and said VISA was not acceptable, he needed cash. The witness then said that he would pay cash when he received the product. Some time later, he received and paid cash for the product. He testified that he could have bought the product on or after August 15, he could not remember the exact date. He did not know about the Applicant's accident. He testified that he sold all the product that he originally bought from the Applicant, and then got more product from Slava because she is Yugoslavian.

Artemis (Tammy) Calogero gave evidence under oath. She testified that the Applicant is her father-in-law and she is married to his son. She is familiar with Nu Skin and attended a meeting last year at the Ramada Inn. She went to the meeting with members of her family, including her father-in-law, her mother-in-law, her sister-in-law, her brother-in-law and her husband. A gentleman from Florida was at the meeting, and described how the product was sold, and how the sales system works. She felt the product was good and selling it was a profitable business. The sales method is called Multi-Level Marketing; it is not the same as pyramid sales. Her father-in-law asked her if she wanted to be a distributor. She said no, but bought some product. She did not make a major purchase of product; her purchase was about $30.00. The purchase took place at the end of August and she took delivery of the product on the same day.

In cross-examination, the witness testified that she cannot remember what day she took delivery of the product. She signed the note (Exhibit 18) because she knew that the day was around the date indicated on the note. However she does not remember the exact date. Her sister-in-law purchased product on or about the same date so she knows that the date is approximately right.

Catherine Ann Lawlor gave sworn testimony stating that she knows the applicant and that she met him through his counsel's office. She testified that the Applicant introduced the Nu Skin product to her and she became a distributor at the end of August, 1990. At that time, he showed her the product and asked her whether she was interested in selling it. She said yes and signed before the beginning of September but did not want to start working at distributing until after she had finished her baseball season. She gave the Applicant one cheque that bounced and then she provided him with a second cheque sometime after the September long weekend. The cheque was for $340.00. She remembers that she paid the first cheque prior to the September long weekend and she paid the second cheque after the September long weekend. She signed the distributor agreement at a meeting at Marilyn Nelson's house that occurred on a Tuesday or a Thursday. She testified that she cannot remember exactly when she received the product, but it was some time at the beginning of September.

The Insurer's Evidence

Sara Lynn Gail Williams gave sworn evidence on behalf of the Insurer. She testified that she is employed by Nu Skin and that her current position is Canadian Resolution Supervisor. This position involves resolving any problems that occur with orders. She testified that she requested from Head Office copies of all the product orders made by the Applicant, and that these come to a total of four. She was not able to locate any other orders because there were no other orders. She testified that she searched the computer files and located only four orders made by the Applicant. She also had the original paper files checked and only four orders were found. She explained that the paper files are stored at the company's head office in Provo, Utah after the information in them is entered into the computer system. Exhibits 29, 30, 31 and 32 are computer printouts of the Applicant's orders. The witness verified that the computer information was reviewed and compared with the paper files, and it is consistent with the paper orders. Exhibit 34 is a computer printout summarizing the Applicant's total sales and commissions.

The witness explained that the order form lists two prices - the wholesale and the retail price. She explained that the Applicant pays the wholesale price and adds 43% to arrive at the retail price. She confirmed that one would not take 43% of the retail price as profit. She confirmed that the Applicant was signed on by Marilyn Nelson and that Marilyn Nelson would get 5% of the Applicant's sales volume if she were receiving commission at an executive level. She confirmed that Marilyn Nelson would not be able to make a profit by selling goods to the Applicant wholesale.

In cross-examination, the witness confirmed that if Marilyn Nelson sold product or stock to the Applicant wholesale, that transaction would not show up on the company records. In some cases, "upline" individuals do sell products wholesale to their "downline" recruits, to assist the "downline" people.

Counsel for the Insurer submitted that where an applicant claims entitlement to the maximum weekly benefit of $600.00 per week, he must make reasonable proof of his claim. The burden is on the Applicant to prove his allegation that the correct benefits have not been paid by the Insurer. Counsel pointed out that the Applicant's position at the end of the hearing is that a profit of approximately $3,500.00 has been made on about $5,500.00 worth of sales, but the Applicant's general position is that his profit is 43% of sales. However, in Exhibit 21 the Applicant is claiming a profit of $2,400.00. Counsel alluded to the inconsistencies in these claims. Counsel submitted that the Applicant's claim can only be accepted if all the inconsistencies in his evidence are overlooked.

Counsel submitted a document entitled Position of Co-Operators as to alleged sales. This document (marked Exhibit 33 at the hearing) lists each of the Applicant's alleged sales as they have been documented in the exhibits. The sale price is listed, the cost is listed as derived from the purchase orders (which show both wholesale and retail prices) and accordingly, the Applicant's net profit for each transaction is calculated. The Exhibit also specifies which of the purported sales took place within the relevant four-week period.

Counsel submitted that much of the Applicant's evidence is hearsay, and that in particular, the handwritten notes submitted cannot be believed. He pointed out that in some cases the notes were introduced instead of witnesses. For the most part, the Applicant's witnesses were relatives.

Counsel submitted that Exhibit 1 indicates that a sale was made and paid for on August 16, 1990. That should be accepted on its face. However, at Exhibit 2, an invoice marked "PAID CASH AUGUST 4, 1990" is supposed to mean August 31. This cannot be accepted because it is not credible. He argued therefore that Exhibit 2, on its face, refers to a sale outside the four-week period, and must be disregarded. Furthermore, the Applicant's evidence about the note cannot be accepted. Counsel pointed out that the Applicant first said the note was written by someone else, but eventually admitted that he wrote it himself.

Counsel submitted that all the notes were apparently prepared by the Applicant and signed by the various individuals concerned, at his request. Mr. Thambithurai admitted that he simply signed the note because the Applicant asked him to. Counsel submitted that where the notes contradict the dates indicated on the order forms, the dates on the order forms must be accepted, because the notes constitute hearsay testimony that does not stand up.

With respect to Exhibit 3, counsel pointed out that the witness was not present at the hearing and an inference can be drawn from the fact that she did not appear. Counsel submitted that Exhibit 3 should be disregarded as it is clear from the order form, which is marked August 4, 1990, that the sale did not take place within the requisite four-week period. The note accompanying the order form is hearsay testimony that cannot be accepted.

Counsel also submitted that the retail price for this item had been arrived at inadvertently by the Applicant, because he apparently grossed up the retail price rather than the wholesale price by 43%. Counsel submitted that this sale was "a total fabrication".

Exhibit 4 is dated September 7, 1990 and this should be accepted.

With respect to Exhibit 5, the order form is marked "PAID CASH AUGUST 31, 1990 will be delivered on September 15, 1990". Counsel submitted that these dates are contradictory and cannot be accepted without further proof. Since the individual concerned did not testify at the hearing, the Arbitrator should infer that her testimony would not support the Applicant's case.

With respect to Exhibit 7, counsel pointed out that the witness could not remember the date on which he made payment. The document is dated August 1, 1990, but the witness was not sure of the date.

With respect to Exhibit 8, counsel submitted that the witness, Mr. Thambithurai, "folded up entirely". He confessed that he signed the note because the Applicant asked him to, and that he could not remember the date. Counsel submitted that this evidence cannot be accepted, and accordingly the sale cannot be admitted as having taken place within the four-week period.

Counsel submitted Exhibit 9, a distributor agreement dated September 24, 1990, also cannot be admitted. Although the Applicant claimed that this document was "postdated", no reasonable explanation for the postdating has been given.

Regarding Exhibit 10, a distributor agreement dated September 26, 1990, counsel submitted that the explanation about the dates that was provided by the Applicant's nephew makes no sense. Therefore this item cannot be included within the four-week period.

Exhibit 11 must also be disregarded since it refers to an order for sales aids by the Applicant, and falls outside the four-week period. Exhibit 12 is also an order for sales aids, made after the accident, on September 26, 1990. Counsel submitted that Exhibit 12 shows that the Applicant was still engaged in sales after the accident, although he denied this in his testimony.

Counsel submitted that Exhibit 21, the Applicant's handwritten document setting out his costs and profits, is simply "fabricated". The Applicant was not able to explain how he arrived at his figures. It appears that some of these figures are erroneous because the Applicant took 43% of the total retail price (including sales tax) charged as his profit.

Counsel submitted that the Applicant's evidence about his sales cannot be accepted because he has provided no verification that he actually purchased the goods which he purported to sell. The Applicant claimed that he broke up certain kits or packages to sell individual items, but he did not provide any evidence to document the purchase of those kits.

The evidence of Sara Lynn Williams is that the Applicant made four purchase orders of product. Two orders were made prior to the accident, and two were made after the accident. These orders have been verified and checked. Counsel pointed out that, although the Applicant claimed he made other purchases, he was unable to verify this claim with any documentation. He did not keep his own copies of the purchase orders from Nu Skin. Although the Applicant alleged that the documentation provided by Nu Skin is incomplete or incorrect, he has not provided any solid evidence that this is the case. He stated that there were problems with the computer system, but failed to cross-examine the witness about computer problems. This failure to cross-examine amounts to an admission that there was nothing wrong with the information provided by the computer.

Counsel submitted that the Applicant's purchases from the company do not tally up with his alleged sales. From the evidence, the Applicant did not purchase enough goods to fill his orders for sales. Counsel submitted that the Applicant did not get and could not have gotten all the goods he claims that he sold from his "uplines", Ms. Desanti and Ms. Nelson. Ms. Desanti stated only that she picked up two orders for the Applicant. Marilyn Nelson stated that she sold goods to the Applicant, but not enough to fill the orders that the Applicant claims he made. Ms. Nelson claims she sold the Applicant Nutriol, but the Applicant has not indicated that he sold Nutriol to his customers. There is no explanation for the Nutriol purchase.

Counsel submitted that Exhibits 26 and 27 list the articles allegedly sold and purchased by the Applicant. Exhibit 26 lists the individual items purchased by each customer named by the Applicant. Exhibit 27 lists the products that would be required to fill the orders as set out in Exhibit 26. Exhibit 28 is a list of the items actually ordered by the Applicant, according to Exhibits 13, 14 and 15. Counsel submitted that the lists do not tally up; the Applicant did not purchase the products that he claims he sold. He submitted that the Applicant cannot sell an item if he has not purchased it to sell.

Counsel referred to the orders for litres of shampoo made by Charles Pecorella, at Exhibit 4. He questioned where the shampoo came from, since no orders for the shampoo appear on the Applicant's product order forms. Counsel submitted that the Applicant cannot sell to others items that he never purchased himself. The Applicant cannot sell a Cadillac if he just has a Pontiac in stock.

Counsel submitted that the Applicant had originally attempted to mislead the Insurer by listing purchases that he had made as sales to clients. This is clear from Exhibit 23, the document which the Applicant prepared, which indicates that his sales for the month of August 1990 were $8,986.60. In this document, VISA credits were listed as sales. Counsel submitted that the Applicant can be granted no credibility since he was trying to deceive the Insurer.

Counsel also submitted that the Applicant's witnesses were not credible. The Applicant's sister, Antonetta Del Rosso, testified that she received products from the Applicant on August 31, although the note she signed says August 22. Her comment was "What does it matter?" Counsel submitted that it does matter, because the evidence is given under oath, and witnesses should not swear about dates that they do not remember. This witness signed her name without reading the note; she admitted she cannot read English. The Applicant knew she would sign anything that he asked her to sign.

Mr. Thambithurai admitted that he did the same thing as the Applicant's sister. Counsel submitted that Mafalda Bertoni, the Applicant's sister-in-law, also cannot be believed. She testified that she threw out her calendar, but claimed she could still remember the exact date on which she purchased the product. The Applicant's nephew, Savino Calogero, claimed to remember a soccer game and purported to remember the date of his purchase from that game.

Another witness, Igor Vujovic, admitted that he could have paid the Applicant on August 15. If this were the case, that would place his purchase outside the four-week period. Counsel submitted that I cannot conclude that this purchase was actually made on August 31.

Counsel submitted that the Applicant is attempting to deceive the arbitrator by presenting evidence that he knew was not proper and legitimate.

He submitted that, even if it is correct that Marilyn Nelson sold the Applicant $800.00 worth of goods, the Applicant's other purchases were only worth $1,487.00 and therefore the Applicant could not have made what he claimed. The issue, counsel pointed out, is not only the alleged sales, but also the dates of the sales, and we cannot believe the evidence as to the dates.

Counsel submitted that the Applicant has fallen short of what ought to be accepted as proof of his position. The Applicant has not even proved that he is entitled to the payments of $252.00 that he was receiving from the Insurer. Counsel submitted that the Applicant's documentation shows that he was entitled only to $185.00 and he requested that the Applicant be ordered to repay the difference to the insurer.

Counsel submitted that to award this Applicant more than the minimum statutory amount of $185 weekly would be simply to reward him for his lies, errors and misrepresentations.

In reply, counsel for the Applicant pointed out that the evidence of Marilyn Nelson explains why there is no "paper trail" about the items she sold to the Applicant. She claims she sold the Applicant about $800.00 worth of goods. Although counsel for the Insurer alleges that the Applicant cannot prove where he got the goods that he sold, the Applicant's counsel submitted that records of what the Applicant purchased from his sponsor do not exist.

Counsel also submitted that although the Applicant's credibility, and the credibility of his witnesses, has been challenged, after observing the Applicant and his witnesses, I should find that they are credible and told the truth. It would be surprising if memories were not faulty. Confusion about dates is natural. However the witnesses did come forward to present themselves, and told the truth to the best of their abilities.

The issue is whether the goods were sold as claimed by the Applicant. The sales are attested to under oath and backed up by both documents and witnesses. Therefore I should accept the evidence that was presented and grant the Applicant the maximum weekly benefit under the legislation.

Findings:

The Law:

The No-Fault Benefits Schedule provides for weekly income benefits to be paid to persons injured in automobile accidents. In the present case, benefits are payable under section 12 of the No-Fault Benefits Schedule, which sets out the method for computing the benefits payable to employed and self-employed individuals. The relevant portions of section 12 are reproduced as follows:

Section 12.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary lay-off, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

2. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.

(4) Subject to subsection (5), the weekly benefit under subsection (1) will be the lesser of,

(a) $600 plus, if Optional Benefit 2 has been purchased, the amount of the benefit chosen; and

(b) 80 per cent of the insured person's gross weekly income from his or her occupation or employment, less any payments for loss of income, except Unemployment Insurance benefits,

(i) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan, or

(ii) received under any sick leave plan.

(7) The following rules apply to the calculation of gross weekly income:

1. A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.

The weekly benefit payable to the Applicant, according to section 12(4), is the lesser of $600 or 80% of the Applicant's gross weekly income as calculated under subsection 12(7).

Subsection 12(7)1 explains the basis for calculating the gross weekly income. In the present case, the Applicant has chosen to base his gross weekly income on his earnings for the four weeks preceding the accident, that is, the period from August 16 to September 13, 1990. The issue for determination at the arbitration hearing then, is what the earnings of the Applicant were during the relevant four weeks.

Credibility

The Applicant provided both documentary and viva voce testimony about his earnings. The evidence is clear that at the relevant time he was engaged in selling cosmetic products, and that his earnings were based on the profits from these sales.

The Applicant bears the onus of proving his sales and his profits. That proof can only be accomplished by reliable and credible evidence.

In this case, the Applicant provided some documentary evidence, which appears to be fairly reliable, about his sales. He also testified that other sales and transactions took place for which he can provide no documentation. Much of the evidence tendered by the Applicant is contradictory and confusing. I note in particular the discrepancies among Exhibit 21 (the Applicant's handwritten document, prepared for the arbitration hearing which purports to summarize his costs, sales and profits during the four-week period in question), Exhibit 23 (the list of the Applicant's alleged sales, submitted to the Insurer), and the final document submitted by the Applicant, purporting to summarize his sales, costs and profits.

Exhibit 21 indicates that the Applicant's profits were $2,407.00 on gross sales of approximately $5,780.00. Exhibit 23 shows gross sales of $8,986.00. The submission documents show a profit of $3,516.00 on gross sales of $5,462.00. I therefore conclude that I am unable to rely on the Applicant's unsubstantiated testimony or evidence with respect to his sales and earnings. I cannot credit the Applicant with income from sales for which he can provide no objective documentation.

I have chosen to rely only on evidence that is susceptible of objective verification.

In particular, the Applicant's evidence as to whether some of his sales fall within the relevant four-week time period appears to be unreliable and self serving.

I note that most of the retail order forms tendered in evidence by the Applicant are accompanied by handwritten notes, purportedly signed by the individual customer concerned, that attest to the fact that a sale at the stipulated price took place, and indicate the date of the transaction. In each case where the retail order form indicates that the transaction took place on a date outside the four-week period prior to the accident, a handwritten note places the transaction within the relevant time period. As pointed out by counsel for the Insurer, the notes themselves have little probative value, since the evidence contained in them amounts to nothing more than hearsay.

The Applicant's testimony about the notes was contradictory and self serving. At one point he stated that the customers themselves wrote the notes, then he reversed himself and admitted that he had prepared the notes. One of the Applicant's witnesses admitted that he had signed the note at the request of the Applicant, and conceded that he had no real recollection of the dates in question.

I note that many of the Applicant's witnesses were members of his family. Although the family members claimed to be able to accurately remember the dates of their purchases, I do not accept their evidence where it conflicts with the dates actually marked on the purchase orders. No clear or sensible explanation for the discrepancy in dates was provided in any individual case.

Therefore, in each case where the date of the transaction is in issue, I have chosen to rely on the actual date indicated on the purchase order form. I find that the evidence as recorded on the purchase order form is inherently more trustworthy and more accurate than the hearsay or other testimony offered to refute it. The date on the document normally would be recorded contemporaneously with the making of the document. The Applicant himself admitted that the notes in question were written and signed approximately one year later, after the failed mediation of this matter.

Findings of Fact:

The following sales have not been included in the calculation of the Applicant's income since I find that they occurred outside the applicable time period:

Exhibit 2: sale to the Applicant's daughter, Cathy Tucker, dated August 4, 1990. The Applicant and his daughter both testified that the sale was completed on August 31, 1990.

Exhibit 3: sale to Anna Frangos, dated August 4, 1990. The Applicant testified that sale date was August 31, 1990.

Exhibit 7: Distributor Agreement with Igor Vujovic dated August 1, 1990.

Exhibit 8: Distributor Agreement with Sugunarajan Thambithurai dated September 15, 1990.

Exhibit 9: Distributor Agreement with Catherine Lawlor dated September 24.

Exhibit 10: Distributor Agreement with Savino Colegaro dated September 26.

I find that the date of the transaction in each of the above cases is the date marked on the document, and not the date alleged by the Applicant in his testimony.

I find that the transactions that took place within the relevant four-week period are those documented as follows:

Exhibit 1

Miranda Oliva

August 16, 1990

Exhibit 4

Charles Pecorella

September 7, 1990

Exhibit 5

Antonetta Renna

August 31, 1990

Exhibit 16

Mafalda Bertoni

August 18, 1990

Exhibit 17

Antonetta Del Rosso

August 22, 1990

Exhibit 18

Tammy Calogero

August 30, 1990

In the absence of any other objectively verifiable information, I have calculated the Applicant's profits from these sales in each case by deducting the wholesale price from the retail price charged. I have used the wholesale price for the goods that appears on the product order forms filed by the Applicant as Exhibits 13, 14 and 15. These order forms list all of the products, showing both their wholesale price and the suggested retail price.

I note that the retail prices actually charged by the applicant conform to the suggested retail prices listed in the product order forms.

I have therefore calculated the Applicant's profits as follows: With respect to:

Exhibit 1

Sale Price

$ 337.75

Wholesale Price

250.40

Profit

$ 87.35

Exhibit 4

Sale Price

$ 942.15

Wholesale Price

779.95

Profit

$ 162.20

Exhibit 5

Sale Price

$1,292.00

Wholesale Price

1044.20

Profit

$ 24780

Exhibit 16

Sale Price

$ 26.30

Wholesale Price

18.40

Profit

$ 7.90

Exhibit 17

Sale Price

$ 69.35

Wholesale Price

48.50

Profit

$ 20.85

Exhibit 18

Sale Price

$ 26.30

Wholesale Price

18.40

Profit

$ 7.90

Total profit for the four-week period:

$ 534.00

Profit per week:

$133.50

These calculations are based on the only objective data about his earnings that the Applicant has been able to provide.

Based on these calculations, the Applicant's profits, or gross weekly income for the purpose of the calculation of his weekly income benefit, is deemed to be $232.00, pursuant to sec. 12(7) (2) (iii) of the No-Fault Benefits Schedule, cited above. That section provides that an Applicant's gross weekly income shall be the higher of the average gross weekly income and $232.00.

Pursuant to subsection 12(1) of the Schedule, the Applicant's weekly income benefit is 80% of that amount, or the statutory minimum of $185.00.

Since the Insurer had been paying the Applicant $252.00 weekly, I conclude that there has been an overpayment to the Applicant of $67.00 per week.

That amount was paid to the Applicant in error, and accordingly the Applicant is obliged to repay the Insurer for the overpayment, pursuant to the provisions of section 27(1) of the No-Fault Benefits Schedule. That section states:

(1) A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.

Order.

1. The Applicant is entitled to weekly benefits of $185.00.

2. The Applicant must repay to the Insurer $67.00 weekly for the number of weeks that benefits have been paid in error at the higher rate.

Nov. 20, 1991

Frederika M. Rotter Senior Arbitrator

Date