Neutral Citation: 1994 ONICDRG 27
File No. A-005097
ONTARIO INSURANCE COMMISSION
BETWEEN:
MAURICIO PEIXEIRO
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Mauricio Peixeiro, was injured in a motor vehicle accident on January 7, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1
On March 11, 1992, Mr. Peixeiro met with an Allstate representative and signed an agreement about his benefits. Allstate paid Mr. Peixeiro a lump sum of $7,200.00.
Allstate contends that the agreement operates as a final release of Mr. Peixeiro's right to claim weekly benefits. Mr. Peixeiro claims that Allstate misrepresented the document as a receipt for the money, and that he did not understand the transaction because of his limited English language skills.
The parties were unable to resolve this issue through mediation and Mr. Peixeiro applied for arbitration under the Insurance Act.
The issue in this hearing is:
- Did Mr. Peixeiro settle his claim?
Mr. Peixeiro also claims his expenses incurred in the hearing.
Result:
- The parties entered into a binding settlement on March 11, 1992, which disposed of Mr. Peixeiro's claim for weekly benefits.
Mr. Peixeiro is entitled to his expenses of the arbitration.
Hearing:
The hearing was held in North York, Ontario, on February 10, 1994, before me, Fred Sampliner, arbitrator.
Present at the Hearing:
Applicant:
Mauricio Peixeiro
Applicant's
Joseph J. Faust
Representative:
Barrister and Solicitor
Insurer's
Grant Dow
Representative:
Barrister and Solicitor
Insurer's
Brad Barber
Officer:
Witnesses:
Fernanda Peixeiro — the applicant's wife
Mauricio Peixeiro — the applicant
Francine Tremblay — Allstate's claim representative
Marie Bento of Global Translation and Interpretation Services translated the testimony of Mauricio and Fernanda Peixeiro.
Exhibits:
Exhibit 1
Agreement between Mauricio Peixeiro and Allstate, dated March 11, 1992.
Exhibit 2
Photocopy of Allstate draft to Mauricio Peixeiro for $7,200.00, dated March 11, 1992.
Exhibit 3
Photocopy of Global Translation and Interpretation Services invoice to Allstate, dated January 15, 1992.
Documents before the Arbitrator
Report of Mediator, dated July 21, 1993.
Application for Appointment of Arbitrator, date-stamped by the Commission on September 9, 1993.
Response by Insurer, date-stamped by the Commission on October 27, 1993.
Pre-hearing letter, dated November 25, 1993.
Evidence and Findings:
This case concerns Mr. Peixeiro's understanding of a document he signed. The parties agree that on March 11, 1992, an Allstate claims representative attended at the Peixeiro home, where Mr. Peixeiro signed a document and received Allstate's cheque for $7,200.00.
The parties agree that the document Mr. Peixeiro and Allstate signed is a settlement agreement which states that Mr. Peixeiro releases his right to weekly benefits in return for Allstate's payment of $7,200.00 in a lump sum. Mr. Peixeiro admits he received the funds. The issue is whether he settled his claim for weekly benefits.
Background:
By all accounts Mr. Peixeiro had no direct discussions with Allstate due to his limited English language skills. Mr. Peixeiro's wife, Fernanda, handled all of the communications with Allstate. Mr. and Mrs. Peixeiro testified about their English language skills.
The Peixeiros are 28-year-old natives of Portugal. They were married in Portugal in 1982 and emigrated to Canada in 1985. Their formal education stopped at grade four. Mr. and Mrs. Peixeiro had no knowledge of the English language before moving to Canada. Since their arrival, neither have taken any English courses. Both Mr. and Mrs. Peixeiro stated that they do not read or write English.
Mrs. Peixeiro does have some English language skills. At the hearing Mrs. Peixeiro listened to about half the questions in English without the aid of the interpreter. She answered about one third of the time in English.
On the other hand, Mr. Peixeiro was clearly not comfortable with English. He could not understand the bulk of the questions from counsel unless they were interpreted. His responses, unless quite simple, were invariably in Portuguese.
Mr. Peixeiro stated that in 1992 he was less skilled in English than he was at the time of the hearing. I heard no evidence to the contrary. Mr. Peixeiro stated he had no direct communications with Allstate about his claim, and that his wife dealt with Allstate and explained matters to him. Based on his nearly complete lack of English comprehension at the hearing and his uncontradicted statements, I find that Mr. Peixeiro was not fluent or literate in English in early 1992, and that he could not have understood an English language conversation about his benefits without assistance. It is clear to me from the evidence of Mr. Peixeiro that all of his understanding about the disposition of his claim came from his wife, Fernanda.
Mrs. Peixeiro's Evidence:
Mrs. Peixeiro's English comprehension in early 1992 was better than her husband's. She corroborated that her husband had no direct contact with Allstate at any time during the processing of the claim. She admitted that she telephoned Allstate shortly after the January 7, 1992 accident to report her husband's injury. She said that she did not speak to anyone at the insurance company again until about two weeks later, when the Allstate claims adjuster, Francine Tremblay, came to her home with an interpreter. Mrs. Peixeiro testified that, through the interpreter, she gave Ms. Tremblay details of the January 7, 1992 accident, information about Mr. Peixeiro's work and income, and a history of his prior injuries.
Mrs. Peixeiro stated that, about a week after this initial meeting, her husband began receiving weekly benefits of $400.00 from Allstate. She had no further contact with any Allstate personnel until the meeting at her home on March 11, 1992.
Mrs. Peixeiro testified that Francine Tremblay came to her house alone on March 11, 1992. According to Mrs. Peixeiro, her husband did not participate in the meeting. He stayed in the bedroom during the entire visit.
Mrs. Peixeiro said that she first asked Francine Tremblay for an interpreter. Ms. Tremblay told her there was no need for an interpreter. Mrs. Peixeiro did not deny that she used English during this meeting with Ms. Tremblay.
At the hearing Mrs. Peixeiro could not identify the agreement her husband signed, but she did recognize the cheque that Allstate gave Mr. Peixeiro on March 11, 1992. Before Mr. Pe