Neutral Citation: 1993 ONICDRG 3

File No. A-000890

ONTARIO INSURANCE COMMISSION

BETWEEN:

JAGDISHAR SINGH

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Jagdishar Singh, was injured in an automobile accident on December 20, 1990. He applied for and received personal injury benefits payable under Regulation 273/90 under the Ontario Insurance Act, R.S.O 1980, chap. 218, as amended, (the" No-Fault Benefits Schedule").

The Applicant is a self-employed taxi driver.

The Applicant claims weekly income benefits payable at the maximum rate of $600.00 per week. He also claimed certain transportation expenses, in connection with the treatment of his injuries. The Insurer held that the Applicant failed to provide sufficient evidence to document his earnings. The Applicant applied for mediation on the issue of the amount of weekly benefits. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issues to be determined at the arbitration hearing are:

1. What is the correct amount of the weekly benefit payable to the Applicant?

2. Is the Applicant entitled to the transportation expenses claimed?

Result:

The decision is:

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

2. The Applicant is entitled to be paid for his transportation expenses.

Hearing:

A hearing was held at North York, Ontario, on June 18, 1992, before me, Frederika M. Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Jagdishar Singh

Applicant's Representative:

Manmohan Hehar

Insurer's Representative:

William Star, President Kingsway General Insurance Company

Witness:

Matthew L. Goetz, Claims Adjuster, Kingsway General Insurance Company

The proceedings were interpreted by Amrit Bahal, a Punjabi interpreter.

The Evidence:

Applicant's Evidence:

The Applicant, Jagdishar Singh, is a taxi driver. He testified that he was involved in two accidents in 1990. He started driving cab on January 4, 1990, and had an accident on January 8, 1990. As a result of that accident, he was off work until April 12, 1990. He testified that from April 12, 1990 to July 31, 1990 he worked "part-time", or approximately 6 hours or less, daily. He was out of the country, on holiday in India, from June 7 to July 7, 1990. On August 1, 1990, he returned to driving cab on a full-time basis. The Applicant testified that, after he went back to work full-time, he either drove five, six or seven days a week.

The accident giving rise to the current dispute occurred on December 20, 1990. The Applicant indicated that, because he had not been working full-time during the 52 weeks prior to the accident, he wished his benefits to be calculated on the basis of his earnings for the four weeks prior to the accident.

The Applicant testified that his total gross earnings for the year 1990 were $26,923.00. This included $2,800.00 of "rental" income, presumably earned from leasing his taxi plate, during the period when he was off work because of the first accident.

The Applicant's evidence of his earnings during the four weeks before the accident consisted of copies of his daily run sheets from November 22, 1990 through to December 20, 1990. I have totalled the earnings reported on the run sheets, which amount to $3,927.00 for the days November 22 inclusive to December 19, 1990. His earnings for December 20, 1990 are not included, since that was the day of the accident.

The Applicant confirmed that he had provided copies of the run-sheets to the Insurer only on the day before the arbitration hearing. He testified that the Insurer would not accept the run - sheets before then.

In cross-examination about the amounts shown on his run-sheets, the Applicant testified that he completed his run-sheets on a daily basis. He confirmed that the run-sheets do not indicate the times of the trips and that he did not fill in this information. The Applicant confirmed that he wrote all the amounts on the run-sheets in round-dollar figures, and that his practise was to report the amounts to the nearest dollar. Tips were included in these round-dollar figures, and not separately recorded.

He testified that according to the run-sheets, his average weekly earnings were $989.25.

The Applicant stated that, although run-sheets are required to be filled out by law, the Mississauga municipal inspectors never check run-sheets. He testified that no one in the taxi industry ever writes down the times when completing the run-sheets, and that the inspectors never complained that times were not indicated.

In response to my questions, the Applicant confirmed that all of the amounts on the run-sheets are listed as cash, and that he did not show any amounts which were charged.

The Applicant also tendered as proof of his earnings a copy of his Notice of Assessment from Revenue Canada (marked Exhibit 2 to the hearing) and his income tax return for the year 1990 (marked Exhibit 3). In cross-examination, he confirmed that he did not complete and file his income tax return for 1990 until March 1992. The Notice of Assessment indicates that the Applicant's net income for 1990 was assessed as $3,875.00.

The Applicant gave viva voce evidence of his expenses for driving the taxicab. He testified he had ongoing monthly expenses as follows:

Plate Lease

$ 650.00

Dispatch

325.00

Radio

35.00

Meter

27.00

Insurance

$ 450.00

TOTAL:

$ 1,487.00

The Applicant claimed that he continued to pay these expenses after the accident of December 1990, although he had stopped driving his cab. He further testified that no one else was driving his cab during the period immediately after the accident. The Applicant stated that it was his responsibility to pay all of the ongoing expenses related to the lease, even while the cab was not being driven.

The Applicant tendered Exhibit 5, a carbon copy of a statement from Airport Taxi, as verification of his oral evidence as to these expenses. I note that Exhibit 5 is dated December 30, 1990, and indicates that the Applicant's expenses are as follows:

Brokerage Dues

$ 325.00

Radio

35.00

Plate Rental

650.00

TOTAL:

$ 1,010.00

The Statement also indicates that some fares were paid to the Applicant by way of charges through VISA, MasterCard, AMEX and company vouchers. These charges amounted to $202.04, and reduced the amount payable by the Applicant to $808.00.

The Applicant gave oral evidence about his other expenses incurred only when he was actually driving the taxi cab. The Applicant testified that these expenses were as follows:

ITEM PER WEEK

PER MONTH

PER YEAR

Gas

$84.00 (approximately)

$1,008.00

Car wash

$ 7.00

$ 364.00

Oil change

$ 28.00

$ 364.00

Brake Change Eight times a year at

$70.00

$ 560.00

Tires Change all 4 every year, at

$80.00 each

$ 320.00

Tune-up

$ 25.00

$ 300.00

The Applicant testified that his total annual expenses for maintenance was about $1,600.00, or $1,650.00 a year. The Applicant testified that he had no receipts which could verify or substantiate these expenses.

In cross-examination, the Applicant testified that he does have receipts showing his expenses for running the cab for the entire year of 1990. He testified that his expenses for his dues, plate rental, insurance, broker's fee, radio and meter amounted to $18,648.00. His total expenses were $23,621.00. This latter total includes amounts for gas and maintenance.

The Applicant was questioned about the fact that drivers were added to his lease and insurance policy in 1991. According to Exhibits 9 and 10, two new drivers, Mr. Manmohan Hehar and Mr. Daljit Gill, were added to the insurance policy. The Applicant testified that the first new driver, Mr. Hehar, only drove for four weeks during March and April 1991, although his name was added to the policy effective January 10, 1991. The Applicant testified that he derived no income from Mr. Hehar. He stated that he had expected Mr. Hehar to continue driving, but Mr. Hehar stopped driving after he had an accident on April 13, 1991. The Applicant testified that it cost him $900.00 to have Mr. Hehar added to the insurance policy, but he did not receive any income from Mr. Hehar's driving.

The Applicant also confirmed that Mr. Daljit Gill was added to the insurance policy as a driver on June 25, 1991. He stated that Mr. Gill drove for just four days and that he earned no money from Mr. Gill.

The Applicant was cross-examined about who else was driving the cab. He testified that just before the accident he was the only driver. He testified that he continued to pay the insurance and all other expenses associated with leasing the cab in January 1991, even though he was not driving.

The Applicant was questioned about the fact that he had applied for "loss of use" benefits from the Insurer for the period when his taxi cab was not in condition to be driven. He confirmed that he reported to the Insurer that he had no other driver and claimed "loss of use" benefits of $100.00 per day while the cab could not be used.

It was put to the Applicant in cross-examination that he was ultimately obliged to repay to the Insurer the "loss of use" benefits, since he was not entitled to claim both no-fault benefits and "loss of use" benefits in respect of the same accident.

The Applicant was also cross-examined about his application for insurance coverage. It was put to him that on the application he had failed to report his previous accident. The Applicant testified that the insurance broker had filled out all the details on the application form, and he was instructed to sign it on August 1, 1990. He testified that he signed the form without reading it and that is why his previous accident is not reported.

Insurer's Evidence:

Matthew Goetz, a claims adjuster for Kingsway General Insurance, gave sworn evidence on behalf of the Insurer. He testified that an independent adjuster was first assigned to the file, and that he took the file over from that adjuster. He then handled the file on behalf of the Insurer.

The adjuster testified that the Applicant was not co-operative in providing information which would substantiate his claim. The Adjuster testified that he requested documentation from the Applicant on several occasions, and also advised the Applicant that he would have to provide his income tax returns.

The adjuster testified that the Applicant originally indicated that he had not filed an income tax return. Shortly afterwards, the Applicant returned with an income tax return which the adjuster viewed; however, the Applicant would not allow the adjuster to photocopy that document. Also, the Applicant failed to provide proof that the tax return had been filed.

The adjuster testified that he made every effort to deal with the Applicant on a reasonable basis, but felt he could not justify paying out additional benefits without corroborating evidence.

The adjuster introduced Exhibits 8, 9 and 10 and indicated that Exhibit 8 shows that Mr. Singh was originally the only insured driver on the cab. Exhibit 9 shows that Mr. Hehar was added as a driver on January 10, 1991, and Exhibit 10 shows that Mr. Gill was substituted as an extra driver in place of Mr. Hehar.

In cross-examination, the adjuster confirmed that he had invited the Applicant to his office to discuss his claim on various occasions, and that he had advised the Applicant that it would be impossible to pay higher benefits without substantiating documentation. The adjuster confirmed that he had indicated to the Applicant that benefits were not granted solely on the basis of run-sheets; however, he stated that he had never refused to accept the Applicant's run-sheets or to consider the run-sheets as evidence.

The adjuster confirmed that he never did formally request from the Applicant documentation of his earnings in writing; however, he reiterated that he and the previous adjuster and also Mr. Star, the President of the Insurer, advised the Applicant, in person and orally on many occasions, that documentation was required. He explained to the Applicant that information, including tax returns, trip sheets, G.S.T. remittances, and the like, was necessary. However, he confirmed that nothing was put in writing explaining to the Applicant what he needed.

At the hearing, the Applicant submitted certain transportation expenses. The Insurer's representative denied having ever been presented with these expense claims prior to the hearing.

Submissions:

Mr. Hehar made submissions on behalf of the Applicant. He submitted that according to the evidence of the trip sheets the Applicant's average earnings for the four weeks prior to the accident were $989.25 per week. He submitted that, even deducting $125.00 per week for gas and maintenance expenses, the Applicant was still entitled to the maximum weekly benefit of $600.00.

The Applicant's representative submitted that "ceasing" expenses, such as gas, maintenance, and the like, should be deducted from the Applicant's earnings, pursuant to subsection 12(7)3. However, he submitted that many of the Applicant's expenses, including the lease for the taxicab, the cost of insurance, the radio dispatch, and the meter, all continued.

Mr. Star, the Insurer's representative, made submissions stating that the Insurer has attempted to be helpful to the Applicant, as it is recognized that taxi operators normally have difficulty in proving their income, due to their lack of official documentation.

Mr. Star questioned the Applicant's credibility. The Insurer submitted that the Applicant had fantastic earnings according to the run-sheets; however, the run-sheets conflict with evidence of his income in the form of his tax return.

Mr. Star also submitted that the only official documentation of the Applicant's earnings is the tax return. The Applicant was not able to show proper documentation or statements of his income for the four weeks prior to the accident.

Findings:

The Amount of Weekly Income Benefits:

In the present case, weekly income benefits were paid to the Applicant under Section 12 of the No-Fault Benefits Schedule. That section sets out the method for computing the benefits payable to employed and self-employed individuals. The relevant portions of section 12 are:

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.

3. Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income.

Subsection 12(4) provides that the weekly benefit payable to the Applicant 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 claims to be entitled to the maximum benefit of $600. based on his gross weekly income for the four weeks preceding the accident.

The Applicant bears the onus of proving his gross weekly income. That onus can only be discharged through reliable and credible documentation of the Applicant's earnings and expenses.

The Applicant submitted run-sheets to document his earnings for the twenty-eight days prior to the accident. I do not accept these run-sheets as prima facie evidence of the Applicant's earnings.

The run-sheets are clearly documents which the Applicant has created himself and are, in themselves, no more reliable or trustworthy than the Applicant's uncorroborated testimony.

The Applicant claims that he filled out the run-sheets on a daily basis. I find this assertion dubious, since to my admittedly untutored eye, the run-sheets seem too neat and too uniform in appearance to be documents created on many different days.

Moreover, the information contained in the run-sheets is neither complete nor reliable. The Applicant reported his earnings in round figures only, which included his tips. From Exhibit 5, it is clear that some of the fares were paid by credit -- either by means of a credit card, or through a company charge voucher. Although the run-sheets have a column for listing "charges", as well as a column for cash payments, the Applicant listed only cash payments, and showed no charges at all in any of the daily sheets. The Applicant did not complete the columns of the run-sheet which report the time of the trip.

In order to calculate the weekly benefit payable to the Applicant pursuant to subsections 12(4) and 12 (7), I require credible and reliable evidence about both his income and his expenses. For the reasons outlined above, I find the evidence of the run-sheets extremely dubious and unreliable. Moreover, even if I were to accept that evidence, I must find that the Applicant failed to properly document his gross earnings, since he failed to provide adequate evidence about his expenses.

The Applicant provided only one receipt (Exhibit 5) which documented some of his expenses: expenses which he claimed should not be deducted from his gross income pursuant to section 12(7)3 since they were continuing, or non-ceasing expenses. He claimed that he was required to pay these expenses even though he had stopped driving the cab.

He provided no documentary evidence of his other expenses, only oral testimony. The Applicant testified that he did have receipts to prove his expenses for gas, maintenance, car washes, etc., but none of the documents were tendered in evidence.

In effect, the Applicant's evidence as to his income and expenses consists of his own uncorroborated testimony, supported by minimal objective documentation.

This testimony conflicts with the Applicant's evidence of his earnings as reported in his income tax return. I note that the run-sheets show more income for the four weeks prior to the accident than is reported in the Applicant's tax return for the entire year.

I also find other problems of credibility in the Applicant's evidence. In particular, I find it difficult to believe that the Applicant would pay the cost of extra insurance (approximately $900.00 according to his own evidence) and then not have the driver added actually drive the car. Mr. Hehar was added to the policy on January 10, 1991, shortly after the accident, at a time when the Applicant was receiving weekly income benefits and recuperating from the accident. Why would he be added to the policy in January 1991 (when the Applicant was off sick) but only start driving in March or April 1991 (after the Applicant had returned to work) ?

I do not accept the Applicant's explanation of these events, which I find unreasonable. I conclude that the only reason why the Applicant would add to his insurance expenses, at a time when he was recuperating from an accident, would be to earn income by sub-letting his car to another. This leads to the inference that the Applicant did receive some income after the accident: income which he failed to report and which might be deductible from his weekly income benefit, according to section 15 of the No-Fault Benefits Schedule.

Section 15 states:

Deductions:

15. The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident. O. Reg. 273/90.

In summary, I find that the Applicant has failed to provide adequate or reliable documentation of either his income or expenses. He provided no evidence from objective or externally verifiable sources. His documentation is self-generated and self-serving.

The Applicant's evidence was contradictory, incomplete, and as I have found, unreasonable.

Accordingly, I conclude that the Applicant has failed to establish, on a balance of probabilities, that his gross weekly income exceeded the deemed statutory minimum of $232.00 per week. Therefore, the Applicant was entitled to benefits of $185.00 per week, based on the deemed statutory minimum.

Supplementary Medical and Rehabilitation Benefits:

The Applicant, at the hearing, also claimed payment for transportation expenses related to his physiotherapy. The Applicant submitted receipts for these expenses totalling $266.00, which were marked Exhibit 15 to the hearing. The Insurer's representative indicated that the Insurer was unaware of this expense claim, but did not take the opportunity to cross-examine the Applicant about the receipts.

I find that, prima facie, the Applicant is entitled to be paid for his transportation expenses under section 6(1)(d) of the No-Fault Benefits Schedule.

Order:

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

2. The Applicant is entitled to be paid for his transportation expenses of $266.00, under section 6(1)(d) of the No-Fault Benefits Schedule.

The Applicant is also entitled to his reasonable expenses for the arbitration hearing, in accordance with Schedule 1 of the Dispute Resolution Practice Code and Ontario Regulation 275/90.

January 29, 1993

Frederika M. Rotter Senior Arbitrator

Date