Neutral Citation: 1992 ONICDRG 37

File No. A-000849

ONTARIO INSURANCE COMMISSION

BETWEEN:

TRINIDAD CHAMALE

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Trinidad Chamale, was injured in a motor vehicle accident on March 31, 1991. He applied for and received no-fault benefits under an automobile owner's standard insurance policy issued by the Insurer. Every motor vehicle liability policy provides for the no-fault benefits specified in Ontario Regulation 273/90 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8 ("the Act").

The Insurer denied the Applicant's claim for expenses for babysitting and housekeeping services. Following unsuccessful mediation, the Applicant applied for arbitration.

The issues to be determined in this arbitration are:

1. Is the Applicant entitled to $4,070.00 as a reasonable expense for babysitting and housekeeping services, which he requires because of the accident, under section 6(1) (f) of the No-Fault Benefits Schedule?

2. Is the Applicant entitled to legal fees incurred prior to the arbitration as a reasonable expense for services which he requires because of the accident, under section 6(1) (f) of the No-Fault Benefits Schedule?

The Applicant also claims interest on any amounts found to be owing, and his expenses involved in the arbitration.

Result:

The decision is:

1. The Applicant is entitled to the amount of $3,720.00, representing the cost of the housekeeping and babysitting services for the period from April 14, 1991 to September 7, 1991, under section 6(1)(f) of the No-Fault Benefits Schedule.

2. The Applicant is entitled to interest on this amount.

3. The Applicant is not entitled to recover his legal fees incurred for legal services performed other than in respect of this arbitration proceeding.

4. The Applicant is entitled to his reasonable expenses incurred in respect of this arbitration proceeding in accordance with section 282(11) of the Act, and Ontario Regulation 275/90.

Hearing:

An arbitration hearing was conducted at North York, Ontario, on May 13, 1992.

Present at the hearing were:

Applicant:

Trinidad Chamale

Applicant's Representative:

Frank Loreto

Barrister & Solicitor

Insurer:

Represented by:

Eileen Bagley, Adjuster

Insurer's Representative:

Edmund Kent

Barrister & Solicitor

The following persons testified at the hearing:

Applicant

Mercedes Gomez

Dr. Neville Bayer, Neurologist

The proceedings were interpreted by interpreter in Spanish, Margarita Feliciano, of Global Translations & Interpreters Services, Inc.

Documents before the arbitrator:

Exhibits:

Exhibit 1

Report by Dr. Vincent Maida, dated November 19, 1991

Exhibit 2

Report by Dr. Vincent Maida, dated April 14, 1992

Exhibit 3

Clinical Notes of Dr. Vincent Maida, relating to Mr. Chamale, from April 4, 1991 to November 25, 1991

Exhibit 4

Report of Dr. Neville Bayer, dated June 25, 1991, and Curriculum Vitae

Exhibit 5

Receipts to Trinidad Chamale from Mercedes Gomez (record six in total), dated April 28, 1991, May 26, 1991, June 23, 1991, July 21, 1991, August 18, 1991, September 7, 1991, respectively

Exhibit 6

Letter from Frank Loreto to Robb Walker, Wellington Insurance Co., dated September 27, 1991

Exhibit 7

Letter from Frank Loreto to Robb Walker, Wellington Insurance Co., dated October 2, 1991

Exhibit 8

Letter from Deborah Zimmerman, Claims Consultant, Wellington Insurance Co., to Frank Loreto, dated January 20, 1992

Documents before the arbitrator, but not marked as exhibits:

Report of Mediator, dated January 21, 1992

Application for Appointment of an Arbitrator, dated February 7, 1992

Response by Insurer, dated March 9, 1992

Letter confirming pre-hearing discussion, from K. Julaine Palmer, arbitrator, dated April 8, 1992

Letter from Mr. Edmund Kent, dated May 12, 1992

Evidence:

The Applicant's testimony:

The Applicant testified that he lives at home with his wife and their six children. The youngest child is Williams, who is eight years old. There are two teenaged girls, Veronique and Iris, aged thirteen and fifteen, and two sons, Byron and Oscar, who are in their early twenties. His oldest son, Alfredo, is twenty-four and is married.

At the time of the accident, the Applicant was unemployed and looking for work. His wife worked all day at a bakery. The Applicant led a very active life. He jogged four to five kilometres every morning. He attended language classes two or three times a week. He played soccer in the summer.

The Applicant rents a large, old, two-storey house. He and his wife sleep in the basement. Byron also sleeps there. The main floor has been partitioned to create a living area and kitchen. The three bedrooms on the main floor are occupied by the children. Alfredo and his wife occupy the whole of the second floor.

At the time of the accident, Alfredo was unemployed. Oscar worked full-time, and Byron worked part-time in the mornings, and attended school in the afternoon. His daughters and youngest son are in school.

The monthly rent for the house was $850.00, excluding utilities, but was reduced to $650.00 after the accident. Alfredo was responsible for payment of the utilities. Responsibility for the rent is divided between the Applicant and Oscar.

The Applicant testified that he took care of the domestic chores, after he became unemployed. He made all the beds. He vacuumed the floors and dusted the furniture. He sometimes washed the dishes. Both he and his wife did the food shopping. He took the children to school. Either he or his wife would prepare breakfast for the family. The children generally did not help with the house-cleaning chores. He had friends round in the afternoon, to talk about soccer or watch a video. He did not like having the house in a mess when his friends visited. His wife would plan the meals. They would both cook dinner. In winter, he shovelled the snow around the house and put salt on the path. The children sometimes helped with this.

The accident occurred on March 31, 1991. After the accident, the Applicant did not do household chores or activities. No cleaning was done in the first few days. Ms. Gomez came to visit him, as was the Guatemalan custom. They came to an arrangement that she would do the cleaning. He did not remember exactly when she started work. He thought that it was one or two weeks after the accident.

Ms. Gomez came for five days a week for four to five hours. The Applicant paid her $175.00 a week. She asked him to pay cash as she had problems cashing cheques. The Applicant borrowed the money to pay for her services from his brothers.

For the first few days after she started to work, there was a lot more to do, and she had to stay longer. Therefore, they had back-dated the receipts to the beginning of April to account for these additional hours. The date on the receipt of April 1, 1991 did not mean that she started on that day.

After the accident, Ms. Gomez cleaned the house, except for the second floor. She made breakfast for the family, except Alfredo. Ms. Gomez would also prepare dinner for the family.

The Applicant testified that no one else in the family could do the housework, because everyone worked or went to school. He was the only one at home. He did not ask his wife or children to help out with his household duties, as each one had his or her own obligations. The children would come home from school and would want to watch television. Alfredo was not working but was an adult. The Applicant could not order him around.

The Applicant confirmed that he received disability benefits from the Insurer until October 7, 1991. He also received a caregiver benefit from the Insurer for his youngest son, Williams. Subsequently, in October, his lawyer also requested caregiver benefits for his two daughters, and these were also paid.

The Applicant testified that he was examined by Dr. Bayer, at the request of the Insurer. He speaks only a little English. His family doctor, Dr. Maida, understands Spanish. His daughter, Veronique, accompanied him to Dr. Bayer's office, and interpreted for him. He thought that there were some difficulties in the translation. He stated that Dr. Bayer only saw him for about five to ten minutes.

The testimony of Ms. Mercedes Gomez:

Ms. Mercedes Gomez testified with the assistance of an interpreter. She is a friend of the Applicant's wife, and has known the family for about six years. She is not related to either Mr. or Mrs. Chamale. She performed the housekeeping and babysitting services for the Applicant, that are in issue in this proceeding.

The witness is 33 years old, a widow, with three children of school-age. She was not employed for wages at the time of the accident, although in the past she has cleaned houses for wages.

She stated that, as is the tradition in her culture, she visited the Applicant after his accident to see how he was doing. He asked her if she was working, and told her that he was "in bad shape". He did not know whether he could do the things he did before the accident. Some time later, the Applicant asked her if she would clean his house.

Ms. Gomez testified that she worked for the Applicant for between four to five hours a day, five days a week for the period from April 1, 1991 to September 7, 1991. She cleaned the Applicant's house, except for Alfredo's accommodation. She washed the windows of the house two or three times a week and vacuumed the floors. She made the beds and dusted the furniture. She occasionally cut the grass. The Applicant did not do any housework and told her he was unable to do any. He spent most of the day in bed.

Ms. Gomez generally cooked breakfast and dinner for the family, except the married son. She did the dishes. Her job also involved babysitting the youngest child. She would walk him to school in the morning - a five or ten minute walk. She prepared his lunch at mid-day, and picked him up in the afternoon. The older children were able to go to school on their own. When the children were not at school, they would go out on their own or accompanied by their father.

She testified that most of the money she earned was for cleaning the house rather than caring for the children. On cross-examination, she could not remember details about the Applicant's children.

Ms. Gomez was paid $175.00 each week for her services. She asked to be paid in cash because she had experienced problems cashing cheques at the bank. She identified a set of five receipts, which she had signed. These are contained at Exhibit 5. They are standard form receipts for counter sales, and represent receipts for payment for housekeeping and babysitting services at the Applicant's house at $700.00 a month from April 1 to September 7, 1991. She stated that a friend had prepared the receipts for her. She did not keep any record of the hours she worked, but kept them in her head.

Ms. Gomez thought that she first visited the Applicant one or two weeks after she heard about the accident. They discussed the possibility of her working in the house. She could not remember exactly when she had arranged to work for the Applicant, because it was a long time ago. She was sure she began work on the date indicated on the receipt.

Testimony of Dr. Neville Bayer:

Dr. Neville Bayer testified. He is a neurologist at St. Michael's Hospital. He examined the Applicant on June 25, 1991. His report of that examination is contained as Exhibit 4.

He stated that the physical examination he conducts takes half an hour, even where there is an interpreter, and involves a full musculoskeletal and neurological evaluation. He noted complaints of back and neck pain in this case. However, on examination, he found everything to be completely normal.

He concluded that the Applicant would be fit to return to work within the next couple of weeks. He stated that he allowed for the extra weeks, because he could not be one hundred per cent certain, and he wanted to give the Applicant the benefit of the doubt. He thought the Applicant was unemployed. He did not know the details of the Applicant's household duties. Dr. Bayer concluded that, if the Applicant was fit to return to work, he was fit to perform his household duties.

He disagreed with the report of Dr. Maida, the Applicant's family doctor, who stated that the Applicant continued to be disabled. He noted a discrepancy in the report in that the Applicant's restrictions of movement were stated to be minor, but the doctor had concluded that the Applicant had sustained a moderate sprain.

On cross-examination, Dr. Bayer stated that he would have made a note if he had had any difficulties in translation. He did not know how old the Applicant's daughter was; however, he agreed that the age of the interpreter was one factor to be taken into account in assessing the accuracy of the translation.

He agreed that medicine was an inexact science, and it was therefore possible that a doctor might miss finding a serious condition. However, in musculoskeletal injuries, it would be usual to find an improvement over time, rather than a decline.

He did not agree that it would be prudent to have the Applicant attend again, in view of the possibility of something serious emerging. There was no reason to do so in this case, because his findings were normal. If a patient continued to have complaints, the doctor would refer the person to his or her family doctor.

The Legislation:

The relevant parts of the No-Fault Benefits Schedule provide:

Section 13:

(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 benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

(4) The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), or who but for section 17 would be entitled to the weekly benefit, a benefit of $50 per week if Optional Benefit 3 has not been purchased, or $100 per week if it has been purchased, for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.

Section 6:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

Submissions:

Counsel for the Applicant submitted that the legislation should be interpreted in its ordinary, grammatical sense. He submitted that benefits under section 13 and section 6 were paid for different purposes. Section 6 was intended to cover specific expenses, such as housekeeping expenses.

He submitted that culturally-specific assumptions should not be imposed on applicants. The Applicant was not sophisticated and did what he thought was proper in hiring a babysitter/housekeeper. He should be allowed to recover his expenses. He further submitted that there was nothing unreasonable in the amount of expenses claimed.

He submitted that Dr. Maida's report should be preferred to that of Dr. Bayer.

Counsel for the Applicant submitted that, in determining whether legal fees could be recovered, each case must be judged in light of its individual circumstances. The Applicant did not speak English well, and did not know his rights until he visited his lawyer.

The Insurer:

Counsel for the Insurer submitted that the provisions of the regulations should be read in context with each other. He submitted that housekeeping and babysitting expenses were already accounted for under section 13(1) and (4). Section 6(1)(f) contemplated only goods and services of a medical and rehabilitative nature, because they must be certified by a medical doctor.

He further submitted that the evidence did not show that the Applicant was unable to perform household or child-care tasks. Therefore, the Applicant did not require these services. He also submitted that the expenses claimed were not reasonable.

He submitted that Dr. Bayer's testimony should be preferred to the written note of Dr. Maida.

He submitted that legal fees are not recoverable under section 6.

Counsel for the Applicant, in reply, stated that payment of legal fees could relate to the requirements of treatment or rehabilitation, because applicants could experience stress and anxiety from participating in legal proceedings.

Findings:

This case concerns the interpretation of section 13 and section 6(1)(f) of the No-Fault Benefits Schedule, and the application of these provisions to the facts in this case. The sections are set out on pages 10 and 11.

The Applicant received disability benefits of $185.00 each week under section 13(1) of the regulations until October 7, 1991. These were paid on the basis that the Applicant was substantially unable to perform his essential tasks because of the accident. He also received a benefit of $50.00 per week for each of his three school-aged children, under section 13(4) of the regulations. These were paid on the basis that the Applicant was their primary caregiver.

The Applicant hired Ms. Gomez to look after the housework, and to perform some babysitting for the period while he was disabled. He applied for reimbursement of these costs.

It is the position of the Insurer that the cost of these housekeeping and babysitting services has already been accounted for in the weekly payments that the Applicant received under section 13 of the regulations. The Insurer submits that the very purpose of those benefits is to compensate applicants for the expenses they are forced to incur when they cannot do their pre-accident tasks.

The No-Fault Benefits Schedule should be interpreted in accordance with the usual principles of statutory construction. The provisions must be read in their ordinary and grammatical sense, in context, and in light of the scheme and intent of the legislation. It is also a principle of statutory construction that they should be read together with other provisions of the legislation, and that a construction should be adopted that gives effect to all the provisions under consideration, rather than one that renders some provisions meaningless. (See Dreidger, Construction of Statutes, (2d. ed. 1983) at p. 91-92.)

The No-Fault Benefits Schedule is remedial legislation. It is intended to provide fair and adequate benefits to persons who are injured in automobile accidents, promptly and without regard to fault. The benefits payable are set out in the regulations. The scope of these benefits should be interpreted in a manner that best attains the objectives of the legislation.

Disability benefits fall under Part IV of the No-Fault Benefits Schedule. This provides for the payment of weekly benefits to persons who are substantially unable to perform their usual tasks because of injuries suffered in an automobile accident. Disability benefits are available under either section 12 or section 13.

Persons who are employed at the time of the accident, or who can demonstrate a prescribed connection with the work-force, are covered by earnings-related income benefits under section 12. Otherwise, applicants are governed by section 13.

The Applicant was unemployed at the time of the accident. He qualifies for disability benefits under section 13. A flat-rate amount of $185.00 each week is paid while applicants suffer substantial inability to perform the essential tasks in which they would normally engage. Additional weekly payments are made to the primary caregiver of one or more children under the age of sixteen, or of a person who is physically or mentally incapacitated, living with the insured at the time of the accident. The additional benefit of $50 per child increases with the number of children to a maximum of $200. Higher optional amounts of the caregiver benefit are also available.

The logic of the Insurer's submission rests on the assumption that section 13 benefits are intended to compensate applicants for all additional expenses they have incurred as a result of the accident, including the cost of replacing the services that applicants were previously able to perform for themselves. It is argued, therefore, that section 13 represents the exclusive source of recovery for these expenses, including the costs of housekeeping and child-care.

An explanation for section 13 benefits is contained in the arbitration decision in Michael Morin and the Personal Insurance Company of Canada, Commission File No. A-000468, dated on June 16, 1992. This preliminary decision is presently under appeal. Senior Arbitrator Rotter stated at page 13:

Section 13 benefits are not designed or meant to compensate for loss of income -they are rather meant to compensate for an individual's loss of function.

(emphasis added)

Under this analysis, weekly benefits are paid not to compensate an individual for economic loss, but to provide some compensation to applicants for significant functional impairment resulting from the accident. The purpose of the benefits provided to a primary caregiver may be viewed in a similar light.

There was no external evidence in regards to legislative intent before me at the hearing. Determination of the purpose or purposes of the benefits provided in section 13 is largely an exercise in guess-work.

However, in my view, the scope and language of the provision, seen in the context of the overall regulatory scheme, do not support the Insurer's position.

Caregiver benefits under section 13 provide notional recognition that a person who cares for dependent children or a disabled adult is engaged in economically valuable work, although the work is not remunerated.

Section 13 benefits provide applicants with a minimum fixed level of income to compensate them for their loss of capacity to perform their usual tasks, and to ameliorate the effect of their disabilities. However, the benefits are not earmarked for any particular expenditure.

To the extent that section 13 provides compensation to assist in meeting the financial needs of applicants who are substantially disabled by their injuries, the benefits available are flat-rate and arbitrary amounts. While caregiver benefits are geared to the number of children being cared for, benefits are not tailored to the specific needs or expenses of individual applicants.

No express language in the regulations excludes a person in receipt of disability and caregiver benefits under section 13 from claiming itemized expenses under section 6. Likewise, no express provision offsets these payments against each other. The scheme of the regulations clearly differentiates between the recovery of specific expenses under Part II and weekly disability benefits under Part IV. Each section is governed by terms, conditions, and requirements of proof, that are particular to it.

Moreover, no persuasive policy rationale was put forward for restricting applicants to the amounts contained in section 13, notwithstanding that they have been compelled to incur significant expenses in purchasing housekeeping and child-care services. Such a restriction may result in substantial under-compensation and inequity. It was not suggested that the weekly amounts available to a caregiver represent a rationally-based assessment of the cost of purchasing child-care services or caring for a disabled adult.

Furthermore, if the Insurer's submission is accepted, one would have to conclude that a homemaker, who is also engaged in part-time or full-time employment, is limited to benefits for loss of employment income under section 12 and cannot recover the additional cost of housekeeping and child-care services.

I am not prepared to infer that the Legislature intended this result, in the absence of clear statutory language to that effect. Had the Legislature intended to exclude persons in receipt of section 12 or section 13 benefits from recovery of itemized housekeeping or babysitting expenses, such language could readily have been incorporated in the legislation. Examples of qualifying language in other instances can be found throughout the regulations.

Therefore, I find that receipt of benefits under section 13 of the No-Fault Benefits Schedule does not preclude an applicant from seeking to recover itemized expenses for housekeeping and child-care expenses that the applicant has incurred.

Section 6(1)(f) of the No-Fault Benefits Schedule provides for the recovery of reasonable expenses resulting from the accident for:

other goods and services, whether medical or no-medical in nature, which the insured person requires because of the accident.

The criteria that must be met before an insurer will be found liable for an expenditure for goods and services under section 6(1)(f) are articulated in the arbitration decision of Richard Mark Plows and Jevco Insurance Company (Commission File Nos. A-000175 and A-000588, F. Rotter, Senior Arbitrator, dated January 16, 1992. They are as follows:

(1) it must be a reasonable expense resulting from the accident.

(2) it must be required because of the accident.

(3) a medical practitioner must, if the insurer so requires, provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation.

This decision has been upheld on appeal (see Richard Mark Plows and Jevco Insurance Company, Commission File Nos. P-000175 and P-000588, M.P. Richardson, Director's Delegate, dated May 22, 1992).

Whether the criteria are met is a question of fact to be determined, taking into account the particular circumstances of the case.

The expenditure must be required for the applicant's treatment or rehabilitation. However, this requirement should be given a broad and expansive definition, in accordance with the remedial nature of the legislation. It is important to note that section 6(1)(f) is not limited to medical goods and services - it expressly covers expenditures "whether medical or non-medical in nature".

In Amnon Ajzensztadt et al and CAA Insurance Company (Ontario) et al appeal, File No. P-000185, M.P. Richardson, Director's Delegate, dated July 13, 1992, it was held that section 6(1)(f) must be construed in light of the requirement of medical verification under section 6(4). In a decision upheld on appeal, the arbitrator concluded that expenses under section 6(1)(f) must be of a nature "such that a medical practitioner might validly opine as to their necessity". The question of the necessity of the goods and services for treatment or rehabilitation must therefore fall broadly within the realm of medical expertise.

In my view, the nature of the expenditures claimed in this case falls squarely within the scope of section 6. Dr. Maida, the Applicant's family physician, provided an opinion that the Applicant was not fit to assume his household and child-care activities until October. He certified that the expenses incurred in replacing these services were necessary for the Applicant's treatment or rehabilitation.

Furthermore, Dr. Bayer, testifying on behalf of the Insurer, also opined as to the medical necessity of the services - he concluded that housework, far from being harmful, would have been of therapeutic value in this case. His conclusion was different from Dr. Maida's, but the subject matter was clearly believed to be within the purview of both physicians.

I find that the Applicant reasonably requires a safe, comfortable and clean environment in which to live and to recover from his injuries. He needs to eat properly prepared meals. He also requires the reassurance that his legal and moral obligations to care for his children are being fulfilled. I am satisfied that the housekeeping and babysitting services provided by Ms. Gomez were intended to address these needs, and can therefore reasonably be characterized as required for the Applicant's rehabilitation.

Therefore, I am satisfied that the nature of the services in issue in this proceeding properly falls within the scope of section 6(1)(f) of the regulations. I must therefore determine, as a fact, whether the Applicant required Ms. Gomez' services for his rehabilitation.

A doctor's statement under section 6(4) is an "important and relevant factor" in assessing whether the expenditure is required, but it is not conclusive or exhaustive of the issue (see Plows and Jevco, appeal decision (supra at p. 14)).

In this case, the Applicant was paid no-fault disability benefits on the basis that he suffered substantial inability to perform the essential tasks in which he would normally engage, throughout the period in issue here. The Applicant's essential tasks included his housekeeping and babysitting functions.

The doctors involved in this case disagree as to when the Applicant was fit to resume his pre-accident functions. Dr. Maida thinks the Applicant was fit to return to work, and to do his household and child-related activities as of October. Dr. Bayer put the Applicant's recovery at a date approximately three months earlier - a couple of weeks after the Applicant's examination on June 25, 1991.

The Applicant's claim that he was unable to do these activities before approximately mid-July is unchallenged. The issue is whether he was able to perform them for the rest of the period until September 7, 1991.

The Insurer's position in disputing the Applicant's inability to perform these tasks presents some difficulties. The Applicant's entitlement to weekly benefits for the rest of this period was not an issue before me. The Insurer continued to pay these benefits until September 6, 1991, almost ten weeks after Dr. Bayer's report. Dr. Bayer's testimony did not add anything material to the information contained in his report.

The Insurer placed no additional evidence before me regarding the Applicant's medical condition, his ability to perform his child-care or housekeeping responsibilities, or the necessity of services to replace those he could not do. In the absence of any additional evidence, I am left with Dr. Bayer's medical report, in respect of which the Insurer, itself, took no action.

I have considered these circumstances. Furthermore, I note that Dr. Maida had the opportunity of seeing the Applicant on an ongoing and regular basis after the accident, including twice following the date of Dr. Bayer's examination of the Applicant. In all the circumstances, I find as a fact that the Applicant required the housekeeping and babysitting services performed by Ms. Gomez for his rehabilitation.

Counsel for the Insurer suggested that these tasks could have been performed voluntarily by other family members. I find that it is unrealistic and unreasonable to expect the Applicant's family to assume responsibility for all his household tasks when he was injured. By hiring for wages an experienced adult to perform these necessary services, the Applicant acted entirely reasonably, and within the contemplation of the regulations.

The next question is whether the cost of Ms. Gomez' services is a reasonable expense resulting from the accident. In Plows (supra at page 49), the arbitrator addressed herself to two questions:

1. whether the expense was in accordance with reason; not absurd.

2. whether the expense was within the limits of reason, not extortionate or exorbitant.

Ms. Gomez was paid $175.00 each week for her services. The evidence is that she worked for four or five hours a day, five days a week. Assuming an average of four and one half hours a day, the hourly rate for her services would be $7.77 per hour.

Ms. Gomez kept no specific record of her hours. However, I accept her evidence, corroborated by the testimony of the Applicant, that she worked these hours. I found Ms. Gomez to be a credible witness. Although her testimony, in places, was vague, imprecise and sometimes muddled, I attribute much of this to the difficulty she experienced in giving evidence through an interpreter. I am satisfied that she generally worked the hours she said she worked, and that she performed the tasks she said she performed.

However, I am deducting expenses claimed for the first two weeks following the accident. Ms. Gomez' testimony in respect to the date she commenced work was confused and contradictory. The Applicant stated that Ms. Gomez started work one or two weeks after their meeting following the accident and that the invoice for April had been backdated to account for the additional hours she was required to work when she started. These hours have not been established to my satisfaction. Therefore, I am excluding altogether the expenses claimed for the two weeks before Ms. Gomez started work.

I accept Ms. Gomez' evidence that housework took most of her time, and that babysitting, including walking the Applicant's eight year old son to and from school, in fact, represented a relatively small amount of her time. I regard her babysitting duties as incidental to her principal housekeeping responsibilities.

The work that Ms. Gomez performed obviously benefited the entire family, in addition to the Applicant. Furthermore, the Applicant testified that, before the accident, he and his wife shared the household and child-care tasks. Some of the things that his wife previously did before the accident - such as preparing dinner or shopping - were assumed by Ms. Gomez.

The Applicant may recover expenses for services required for his treatment or rehabilitation. However, it is an academic and unrealistic exercise to attempt to precisely apportion, within the family unit, the Applicant's share of the domestic chores before the accident, or the services that exclusively benefited him after it. Moreover, such detailed arithmetical calculations are incompatible with the aims and objectives of the No-Fault Benefits Schedule, which is designed to put benefits quickly and efficiently in the hands of accident victims. To the extent that the services performed by Ms. Gomez included tasks sometimes performed by the Applicant's spouse before the accident or, to the extent that her services benefited the other members of the family in addition to the Applicant, I find that this result is incidental to the benefit accruing to the Applicant from her services. I therefore make no deduction for these factors.

I heard no evidence that the amount paid to Ms. Gomez represented an uncompetitive rate for the services performed. The Insurer pointed to the fact that the weekly rate exceeded the Applicant's rent. However, this comparison, or the accompanying implication that the Applicant would not have retained Ms. Gomez' services but for an assurance of payment by the Insurer, is irrelevant to this inquiry. The reasonableness of the expenditure is to be evaluated by the needs of the injured person, not by his or her resources.

I find on the evidence before me that the amount paid to Ms. Gomez for housekeeping and babysitting services was reasonable.

Legal fees:

The Applicant claimed his legal fees incurred in dealing with the Insurer after the accident in the period before he applied for arbitration.

Following the hearing, the appeal decision in Ajzensztadt, (supra) was issued on July 13, 1992.

Both parties were provided with copies of this decision, and invited to make submissions with respect to it. Neither party made further submissions.

In the decision, it was held that the cost of legal services in connection with an application for accident benefits was not an expense for which an insurer is liable under section 6(1)(f).

Counsel for the Applicant submitted that the Applicant's language difficulties necessitated the services of a lawyer, and that these legal services were required for the Applicant's treatment or rehabilitation.

In Amnon Ajzensztadt et al and CAA Insurance Company (Ontario) et al, File No. A-000185, F. Rotter, Arbitrator, dated February 6, 1992, the arbitrator stated, at p. 17,

The evidence is that certain individuals may have difficulties completing an application for no-fault benefits. However, the reason for this difficulty often is not connected with the accident. Some individuals require assistance in completing forms because of language barriers or lack of literacy skills - problems that have nothing to do with the accident.

No additional evidence was advanced to support the contention that legal services were required as a result of the accident for the Applicant's treatment or rehabilitation. Counsel for the Applicant submitted that there could be circumstances in which applicants might require legal services on medical grounds. However, no evidence to that effect was introduced in this case.

Therefore, having regard to the reasoning in Ajzensztadt (supra), I find that the Applicant has not established that he is entitled to recover the legal fees that he has incurred otherwise than in respect of the arbitration, under section 6(1)(f).

However, I would reiterate the comments of the Director's delegate at page 11 in respect to the desirability of making available to insured persons "knowledgable, disinterested assistance".

These comments are of particular relevance in a case such as this:

...some insured persons require assistance in completing application forms, whether for reasons of lack of education or the necessary language or literacy skills, or because their injuries render them incapable of filling the requisite forms...the assistance of a lawyer, law clerk or some other disinterested party with knowledge of the interpretation and application of the no-fault legislation, would undoubtedly further the goal of access to no-fault benefits, which underlies the legislation.

The Applicant is entitled to interest on the amount found to be owing, and to his expenses incurred in respect to the arbitration in accordance with section 282(11) of the Act, and Ontario Regulation 275/90.

Order:

1. The Applicant is entitled to the amount of $3,720.00, representing the cost of the housekeeping and babysitting services for the period from April 14, 1991 to September 7, 1991, under section 6(1)(f) of the No-Fault Benefits Schedule.

2. The Applicant is entitled to interest on this amount.

3. The Applicant is not entitled to recover his legal fees incurred for legal services performed other than in respect of to this arbitration proceeding.

4. The Applicant is entitled to his reasonable expenses incurred in respect to this arbitration proceeding in accordance with section 282(11) of the Act, and Ontario Regulation 275/90.

September 25, 1992

Susan Naylor

Senior Arbitrator

Date