Neutral Citation: 1993 ONICDRG 13
File No. A-002329
ONTARIO INSURANCE COMMISSION
BETWEEN:
JOSEPH MARRY
Applicant
and
SUN ALLIANCE INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Joseph Marry, was injured in a motor vehicle accident on August 20, 1991. He applied for and received weekly income benefits from the Insurer, Sun Alliance, under Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
From August 27, 1991 until November 30, 1992, the Insurer paid weekly income benefits under paragraph 12(2) 1 .iii of the No-Fault Benefits Schedule based on the Applicant's claim that at the time of the accident he was entitled to start work under an offer of employment made before the accident. The Insurer subsequently came to the view that the Applicant did not have an offer of employment at the time of the accident. The Insurer takes the position that the Applicant's weekly income benefits should be based on his employment before the accident. The Applicant applied for mediation. Mediation was unsuccessful in resolving the dispute. The Applicant applied for arbitration under the
Insurance Act.
The Insurer also claims that the Applicant was able to perform the essential tasks of his employment on or before July 14, 1992.
The only issue to be determined in this proceeding was:
- At the time of the accident, was the Applicant entitled to start work under an offer of employment made before the accident, under paragraph 12(2) 1 .iii of the No-Fault Benefits Schedule?
The issue of the Applicant's entitlement to weekly income benefits after July 14, 1992 will be dealt with in the reconvened hearing on April 6 and April 7, 1993. That hearing will also determine the Applicant's claim for interest on any arrears of benefits, and the claim of the Insurer for repayment of any benefits overpaid.
Result:
- At the time of the accident, the Applicant was not entitled to start work under an offer of employment made before the accident.
Hearing:
The hearing was held in London, Ontario, on February 23, 1993, before me, Nancy Makepeace, arbitrator.
Present at the hearing were:
Applicant:
Joseph Marry
Applicant's Representative:
David J. Ashford Barrister & Solicitor
Insurer's Representative:
William McCorriston Barrister & Solicitor
Joseph Marry and Robert Nenicka testified under oath.
Exhibits:
Sun Alliance filed four exhibits:
Exhibit 1
Employment Brief - Joseph Marry
Exhibit 2
Medical Brief - Joseph Marry
Exhibit 3
February 4, 1993 report of Dr. Michael C. Hall
Exhibit 4
Application for Accident Benefits (three pages)
Documents before the Arbitrator, but not marked as exhibits:
Report of Mediator, dated September 2, 1992
Application for Appointment of an Arbitrator, dated September 30, 1992
Response by Insurer, dated November 23, 1992
Report of the Pre-Hearing discussion held February 2, 1993
Sun Alliance filed an arbitration brief, dated February 23, 1993, and an addendum, entitled "Statutory Interpretation" (two pages).
Reasons:
The Applicant's uncontradicted testimony was that he had three jobs in the year before the motor vehicle accident on August 20, 1991. Between July 24, 1990 and April 15, 1991, he worked at a gas bar. He then worked as a chicken deboner at Cold Springs Farm between April 22 and July 12, 1991. Finally, he worked for North Star Pallets for about a week at the end of July or the beginning of August 1991.
The Applicant claims that at the time of the accident he had accepted an offer of employment with J.R. Pool Installation & Service Inc. for a job which was to begin in September. He claims that he is entitled to weekly income benefits based on this offer, rather than on his pre-accident employment, under paragraphs 12(2) 1 .iii and 12(7) of the No-Fault Benefits Schedule.
The Applicant testified that, after finishing at North Star Pallets, he was unemployed and looking for work. His brother, Brett Marry, suggested he contact Mr. Nenicka about a job. The Applicant and his brother had both worked for Mr. Nenicka at Pioneer Family Pools the previous summer.
The Applicant and Robert Nenicka agreed in their testimony that the Applicant called Mr. Nenicka "two or three times" in August of 1991 looking for work.
The Applicant's evidence about his conversations with Mr. Nenicka was as follows. When they first spoke, Mr. Nenicka said that he would be needing people and the Applicant should get back to him, but he offered "nothing concrete". When the Applicant called Mr. Nenicka "maybe two days before the accident", Mr. Nenicka said, in the Applicant's words, "yes, I could work for him". The Applicant then said that he would be in the next morning to begin work. Mr. Nenicka responded that he had some loose ends to tie up, and was going on vacation, and the Applicant could start work as soon as Mr. Nenicka returned from vacation. The Applicant testified that he "imagined" Mr. Nenicka gave him a date for starting work, around September 1, but he could not remember.
The Applicant admitted that he and Mr. Nenicka did not discuss rate of pay, hours of work, how long the job would last, or job duties during this conversation. He explained that they didn't need to, because he assumed they would be the same as the year before when he had worked for Mr. Nenicka at Pioneer, and because he and Mr. Nenicka were friends. Mr. Nenicka had had "something to do with hiring him" at Pioneer. The Applicant admitted that he had never accepted any other job offer without discussing these matters.
The Applicant could not recall Mr. Nenicka calling him on September 1 or 2.
Mr. Nenicka's testimony was that when the Applicant called him in August, he told the Applicant there was nothing available now, but they should talk about it later on in September. He called the Applicant when he returned from vacation. This was at the very end of August or the beginning of September. His December 17, 1992 affidavit (Exhibit 1, Tab 6) says that it was on Labour Day weekend (Sunday, September 1 or Monday, September 2) that Mr. Nenicka called the Applicant. Mr. Nenicka testified that he offered the Applicant a job starting September 3. The Applicant said that he was unable to work because of the accident.
In cross-examination, Mr. Nenicka testified that he often needed to hire in September because some of his student employees would leave, although some would work into September. He testified that 1991 was a busy summer, and he had orders to fill at the end of September.
Mr. Nenicka's evidence was that he had been a foreman or supervisor at Pioneer Family Pools, but had had nothing to do with hiring. He admitted that the Applicant had worked with him and reported to him.
I place no significance on the discrepancy in the evidence as to the relationship between the Applicant and Mr. Nenicka at Pioneer. I find it plausible that the Applicant would assume that the rate of pay, hours of work, and job duties with Mr. Nenicka's company would be the same or substantially the same as at Pioneer Pools. I also note that the Applicant's brother, Brett, had worked for Mr. Nenicka during the summer of 1991. Accordingly, I find it plausible that the Applicant would not feel it necessary to discuss these issues when he called Mr. Nenicka looking for work. With regard to job duties, I accept the Applicant's evidence that he knew the duties of a pool installer and didn't need to ask what they were. However, I do not find it plausible that the Applicant would accept an offer of a job without asking when and where to report to work.
It is also significant, in my view, that both the Applicant and Mr. Nenicka had an expectation that the job was one which might be offered the day before it was to start. Both testified that the job was to start in early September. While the Applicant insisted in his testimony that an offer was made before August 20, he also testified that his response to the offer was to say he would report to work the next morning. His expectation in this regard was consistent with Mr. Nenicka's evidence that his hiring practices were casual and informal, and that turnover was high, with some twelve employees filling five positions over the course of the summer.
The Applicant testified that he "imagined" Mr. Nenicka gave him a start date of around September 1, but he was unable to recall this part of the conversation. This gap in his testimony is significant, particularly considering that his testimony about the rest of the conversation was detailed and clear.
On the other hand, Mr. Nenicka's testimony that the offer was made a day or two before the job was to start in early September is consistent with his testimony that he would often need new employees in September, to replace student employees. I find it plausible that Mr. Nenicka would hire the new employees on or after the Labour Day weekend. I also find it plausible that Mr. Nenicka would hire after returning from his vacation.
The only evidence that the job offer was made before the accident was the Applicant's oral testimony. No other witnesses testified on his behalf. The Applicant testified that he believes he was at his girlfriend's house when he called Mr. Nenicka and was offered the job, and noted that he was spending all his time there. He also testified that his brother, Brett, had suggested that he call Mr. Nenicka for work. Yet neither Brett Marry nor the Applicant's girlfriend were called as witnesses. The Applicant testified that he stopped looking for work after being offered the job. I find it implausible that a person who is unemployed and looking for work would not tell his girlfriend, his brother, or some other friend or family member that he had succeeded in finding a job.
The Applicant presented no written evidence to corroborate his claim that Mr. Nenicka offered him a job before the accident. Neither the claim form (Exhibit 4), which was signed by the Applicant, nor the employer's confirmation of income form (Exhibit 1, Tab 6, exhibit C), which was signed by Mr. Nenicka, sets out when the job offer was made. Nor does the note written by Mr. Nenicka and dated July 26, 1992 (Exhibit 1, Tab 6, exhibit D). None of the documentary evidence indicates that Mr. Nenicka made an offer to the Applicant before the accident.
Paragraph 12(2) 1 .iii of the No-Fault Benefits Schedule provides that the Applicant is entitled to weekly income benefits based on an "... offer of employment made before the accident It is not enough for the Applicant to prove that he was offered a job after the accident and could not accept the offer because of his injuries. The Applicant bears the onus of proving, on a balance of probabilities, that the offer was made before the accident. I find it unlikely that Mr. Nenicka offered the Applicant a job before August 20. I find Mr. Nenicka's version of the facts more plausible. My finding is based on my assessment of the oral and written evidence as a whole. I make no finding with regard to the requirement that the offer be "evidenced in writing".
Order:
The Applicant was not, at the time of the accident, entitled to start work under a legitimate offer of employment made before the accident, under paragraph 12(2) 1 .iii.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
The hearing will reconvene on April 6 and April 7, 1993 to determine any remaining issues in this matter.
March 12, 1993
Nancy Makepeace Arbitrator
Date