Neutral Citation: 1995 ONICDRG 108

File No.: A-003703

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIA JAMBOR

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Maria Jambor, was injured in a motor vehicle accident on February 20, 1992. She applied for and received statutory accident benefits from the Dominion of Canada General Insurance Company ("Dominion"), payable under Ontario Regulation 672¹. Weekly income benefits of $185.60 per week were terminated by the Insurer on March 3, 1995. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

What is Ms. Jambor's correct amount of weekly income benefits?

Result:

Ms. Jambor was entitled to weekly income benefits of $185.60.

Hearing:

The hearing was held in Toronto, Ontario, on July 19, 1995, before me, Beth Allen, arbitrator. The proceedings were translated by Mr. Gyula Voros of Omnicom Professional Languages Ltd. A court reporter, Mr. Rene James Ranger, appointed by the Insurer, recorded the proceedings.

Present at the Hearing:

Applicant:

Maria Jambor

Insurer's Officer:

Mavis Haws

Unit Claims Manager

Witnesses:

For the Insurer

Barbara Smith

Exhibits:

A list of 21 exhibits is found in Schedule A.

FACTUAL BACKGROUND:

The only issue in this case is whether Ms. Jambor received the correct amount of weekly income benefits during her period of entitlement. She was involved in an automobile accident on February 20, 1992. She received weekly income benefits in the amount of $185.60 until March 3, 1995.

Dominion calculated Ms. Jambor's weekly income benefit entitlement based on income she earned from a part-time factory job with M.I. Instrumentation Inc. She worked at this job during January and February 1992 for about six weeks. She stopped working there because of the accident and never returned. Dominion used Ms. Jambor's earnings for the four weeks before the accident to calculate her entitlement to benefits. Applying the gross weekly income provisions of section 12 of the Schedule, Dominion determined Ms. Jambor's weekly entitlement to be $185.60.

Ms. Jambor does not disagree with the calculation of her entitlement from her part-time factory work earnings. However, she claims that Dominion ought to have taken into account that she was also self-employed at the time of the accident. The issue I must decide is whether Ms. Jambor earned income from self-employment, and if so, the amount of this income.

MRS. JAMBOR'S SELF-EMPLOYMENT ACTIVITY

Ms. Jambor appears to be a very enterprising, determined and intelligent person. She fairly recently emigrated to Canada from Hungary. She had been self-employed in Hungary for three years before leaving for Canada. She had owned a children's clothing boutique, which, in her view, had been a successful enterprise. Ms. Jambor stressed that she has worked since she was fifteen years old and has always been independent. Within a very short time of arriving in Canada, Ms. Jambor began to pursue the idea of setting up a business.

Ms. Jambor's idea was to start a street vending business. She submitted a number of documents into evidence showing her efforts to start a business in the City of Toronto. Ms. Jambor applied for and obtained a vendor permit (Exhibit 1), issued on July 30, 1991 and expiring on December 31, 1991, which permitted her to sell fruit from a push cart. She also obtained a business licence (Exhibit 2), issued on September 6, 1991, allowing her to operate her push cart business. Exhibit 3 is a vehicle sticker to be attached to her push cart. Ms. Jambor renewed her business licence (Exhibit 4) for one year, to be in effect until December 31, 1992. She paid the appropriate fees to obtain these documents.

Ms. Jambor testified that she did not realize that she required yet another permit to operate her business in the city. In September 1991 she was approached by the police and fined for selling fruit without a vending zone permit to sell on the location. Ms. Jambor later took steps to acquire this permit. Despite being fined, Ms. Jambor was so anxious to operate her business, she took the risk of selling before she obtained the permit. She had to move about continuously to avoid the attention of the police.

The evidence becomes somewhat unclear on the question of exactly when Ms. Jambor operated her business. She produced a number of invoices (Exhibit 21) revealing that she purchased fruit from a variety of companies between September 9, 1991 and October 21, 1991. It is not clear from Ms. Jambor's testimony if the period represented by the invoices reflects the only period she worked at her vending business. She stated that these were the only invoices she could find, but she did not clarify whether she sold fruit at any other time. Nor could she specify whether she earned any income.

Mrs. Jambor submitted into evidence both her 1991 and 1992 notices of income tax assessment. Her 1991 notice of assessment (Exhibit 19) reveals net income of $1,728. When questioned by Ms. Haws about the source of this income, Ms. Jambor was vague in her responses. Her 1992 notice of assessment (Exhibit 20) indicates a net income of $788. Ms. Jambor acknowledged that this income was earned during her part-time employment with M.I. Instrumentation Inc.

Ms. Jambor testified that, on February 13, 1992, she paid for a vending zone permit for a particular location in the city. She produced a receipt (Exhibit 5) which she believed showed that she paid $200 for the permit. However, an examination of Exhibit 5 reveals that Ms. Jambor actually paid a non-renewable processing fee for the city to review the location for which she applied. A letter to Ms. Jambor from the city, dated February 21, 1992 (Exhibit 6) confirms that the location in question was under a feasibility study. She was to be advised of the city's decision about the location in due course.

In the meantime, on February 20, 1992, Ms. Jambor was involved in the automobile accident. This came as quite a blow to her business plans. Due to her injuries, she was incapable of carrying on her business for much longer than she had expected. Ms. Jambor testified very credibly about the despair she feels at having her business plans destroyed by the accident. Her health has not allowed her to return to selling fruit since the accident. Ms. Jambor stated that she has lived in poverty with $185.60 a week being her only source of income. This has been a very humiliating experience for her.

Ms. Jambor received a further letter from the city, dated July 7, 1992 (Exhibit 8) which advises her of the approval of her February 13, 1992 application for a vending zone permit. A letter, dated July 27, 1992 (Exhibit 7), informs Ms. Jambor that the fee for the permit is $1,498 for the period from May 1, 1992 to April 30, 1993. She was entitled, after paying the fee, to start her business effective May 1, 1992. Because of the state of her health, Ms. Jambor was not in a position to respond to the approval of her application. She received a final and very disheartening letter from the city, dated October 19, 1992 (Exhibit 10). This letter informs her that her file regarding her vending zone privileges has been closed.

MS. JAMBOR'S ARGUMENT

Ms. Jambor represented herself at the hearing. She stated that she had been advised that there was no place in the law for a person in her situation. She argues passionately that the statutory accident benefits scheme is not fair to hard working people who lose their business opportunity as a result of an accident. Ms. Jambor's place in the scheme, as she expressed it, is exercising her right to bring the matter before an arbitrator.

This is the basis of Ms. Jambor's argument.

She argues that, in addition to being employed part-time at the time of the accident, she was also self-employed. She provided no evidence about income she earned from self-employment. She provided information about expenses she incurred in purchasing fruit in September and October 1991 and evidence of fees paid for licences and permits.

Ms. Jambor submits her own calculation of how her entitlement ought to have been assessed. She wrote to Statistics Canada and received information (Exhibit 17) about the average employment income in 1990 for a classification of persons involved as "street vendors and door-to-door sales occupations." This classification includes fruit and vegetable selling ventures, but it also includes a far-ranging group of other types of activities. For a person engaged in this classification of work on a full-time, full-year basis, the average income was $31,120.

Based on the $31,120 amount, Ms. Jambor calculated (Exhibit 12) that her weekly income benefit based on her self-employment should have been $478.77. She arrived at this figure by applying to the $31,120 amount, the gross weekly income provisions in section 12 of the Schedule, using a 52-week period. She calculated the difference between $487.77 and the $185.60 she actually received and determined that Royal owed her $293.77 a week over her entitlement period.

Therefore, Ms. Jambor's dispute about the amount of entitlement is not based on self-employment income she actually earned. It is based on income she believes she had the potential to earn were it not for the accident.

Ms. Jambor makes another interesting argument. She submits that she lost an opportunity to make income from her vending business because of the accident. She compares her circumstances to those of a person who, at the time of an accident, had a valid offer of employment. In support of this position, Ms. Jambor points to provisions in the Ontario Automobile Policy ("OAP"). She referred to section 2.23 of the OAP. The corresponding section of the Schedule is section 12(2)1iii. For consistency in the decision, I will refer to the relevant provisions of the Schedule since they are basically the same as the corresponding sections of the OAP. Section 12(2)1 of the Schedule states:

12(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.

[emphasis added]

Ms. Jambor argues that, at the time of the accident, she had an offer of a vending zone permit by the City of Toronto - this permit being the final requirement to get her business off the ground. She further argues that the "offer" was effective from February 13, 1992, one week before the accident, the date she applied for the vending zone permit. Exhibit 5, the fee receipt for the vending zone permit application, according to Ms. Jambor, is written evidence of this offer. The July 27, 1992 letter from the city, Exhibit 7, indicates that after paying the fee she could start selling on May 1, 1992. For this reason, she believes her circumstances should be viewed as comparable to the situation of a potential employee holding an offer of employment at the time of an accident.

REASONS FOR DECISIONS

Ms. Jambor made some interesting and thoughtful comparisons between her situation as a self-employed person and those of an employee awaiting potential employment. However, her argument fails to address some of the basic requirements of the statutory accident benefits scheme.

I have some difficulty with Ms. Jambor's view that she had an offer of employment from the city at the time of the accident. By February 13, 1992, she had paid a processing fee related to an application for a vending zone permit. The vending zone was not approved until July 1992 and the permit fee remained unpaid. I do not accept the comparison of Ms. Jambor's situation with that of a person holding an offer of employment. Even were I to broadly view the possession by Ms. Jambor of the vending zone permit at the time of the accident as a legitimate offer of employment, her argument would still fail because she never did receive this permit.

Generally, the statutory accident benefits scheme anticipates that an insured person prove that he or she has actually been employed or self-employed before the accident. The scheme also foresees that the insured earned actual income. An exception to this, of course, is the situation where, at the time of the accident, an insured person possesses a legitimate offer of employment.

CONCLUSION

The purpose of the statutory accident benefits scheme, as it relates to weekly income benefits, is to compensate an applicant for actual loss of income from employment or self-employment as a result of an accident. The intent is not to compensate for lost opportunity or loss of potential income. This type of loss can be compensated for by an award of damages in a civil tort action but not under the statutory accident benefits scheme.

Ms. Jambor was creative in her attempt to use Statistics Canada data to estimate her lost potential income, but the scheme is not designed with these circumstances in mind.

The term "income" is not defined in the legislation. However, Senior Arbitrator Naylor in the Bress² decision made some observations about how the statutory accident benefits scheme (the then no-fault benefits scheme) conceives of income.

"...the word income implies that something - money, money's worth, a thing of some value, greater command over goods and services - comes into an applicant’s hands or accrues to him or her in return for their employment or occupational endeavours."³

Senior Arbitrator Naylor goes on to explain her jurisdiction under the statutory accident benefits scheme:

"...I have no jurisdiction to award benefits or compensation for losses that do not fall within the existing statutory no-fault benefits scheme. I have no jurisdiction to award income replacement benefits on any other basis, regardless of whether the legislation works unfairly in individual cases, or whether it fails to compensate an applicant to the full extent of his or her loss. I have no jurisdiction therefore to award compensation for loss of potential or future business profits, or for future economic loss."⁴

There is some similarity between facts in the Bress decision and Ms. Jambor’s circumstances. Mr. and Mrs. Bress owned a cottage which they viewed as a business investment. They were involved in an automobile accident and shortly thereafter the mortgage on the cottage was foreclosed and the cottage sold at a loss. The Bresses blamed the accident for their future economic loss.

I adopt the conclusion arrived at by the arbitrator in the Bress decision. My jurisdiction as an arbitrator exercising statutory powers is limited to awards of benefits and compensation that are covered by the statutory accident benefits schedule. I have no jurisdiction to award compensation for loss of potential or for future economic loss.

For these reasons, I find that Ms. Jambor was entitled to weekly income benefits in the amount of $185.60 during her period of entitlement.

EXPENSES

An award of expenses may be made under section 282(11) of the Insurance Act No submissions were made about expenses incurred in the hearing. However, I will remain seized of this matter and either party may apply to me for an assessment of the expenses.

ORDER

Ms. Jambor is entitled to weekly income benefits in the amount of $185.60.

August 14, 1995

Beth Allen Arbitrator

Date

SCHEDULE "A"

Exhibit 1

Vendor Permit, date of issue July 30, 1991.

Exhibit 2

Business licence, date of issue September 6, 1991.

Receipt for licence renewal fee, dated November 28, 1991.

Exhibit 3

Vehicle sticker # 92 - 04524.

Receipt for vehicle sticker fee, dated August 28, 1991.

Exhibit 4

Business licence, date of expiry December 31, 1992.

Exhibit 5

Processing fee receipt, dated February 13, 1992.

Exhibit 6

Letter from City of Toronto to Ms. Jambor, dated February 21, 1992.

Exhibit 7

Letter from City of Toronto to Ms. Jambor, dated July 27, 1992.

Exhibit 8

Letter from City of Toronto to Ms. Jambor, dated July 7, 1991.

Exhibit 9

Letter from City of Toronto to Ms. Jambor, dated August 8, 1992.

Exhibit 10

Letter from City of Toronto to Ms. Jambor, dated October 19, 1992.

Exhibit 11

Letter from Statistics Canada to Ms. Jambor, dated October 11, 1994, with attachments (4 pages).

Exhibit 12

Ms. Jambor's hand-written calculation of entitlement.

Exhibit 13

Application for Accident Benefits, dated March 12, 1992 (2 pages).

Exhibit 14

Employer's Confirmation form, dated March 11, 1992.

Exhibit 15

Letter from Ms. Jambor to Dominion, dated September 16, 1992.

Exhibit 16

Letter from Ted Koleff of Dominion to Ms. Jambor, dated October 1, 1992.

Exhibit 17

A letter to Barbara Smith of Dominion from Ms. Jambor, November 8, 1994.

Assessment of Claim by Insurer, dated October 24, 1994.

Registered letter from Ms. Jambor to Barbara Smith of Dominion, dated October 18, 1994.

Letter from Statistics Canada to Ms. Jambor, dated October 11, 1994, with attachments (4 pages).

Exhibit 18

Application for Arbitration, dated January 26, 1995.

Exhibit 19

Revenue Canada Taxation, Notice of Assessment, 1991 Income Tax Year.

Exhibit 20

Revenue Canada Taxation, Notice of Assessment, 1992 Income Tax Year.

Exhibit 21

Invoices dated from September 9, 1991 to October 21, 1991 (39 pages).

List of invoices and their particulars, prepared by Dominion (2 pages).

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2David and Erica Bress and State Farm Insurance, March 23, 1992, OIC File Nos. A-000191 and A-000192.
3. 3page 14 of Bress decision.
4. 4page 16 of Bress decision.