Neutral Citation: 1995 ONICDRG 130

File No.: A-015166

ONTARIO INSURANCE COMMISSION

BETWEEN:

KHALIL BITRIS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Khalil Bitris, was injured in a motor vehicle accident on November 14, 1993. He applied for and continues to receive statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Mr. Bitris is receiving weekly benefits under section 13 of the Schedule as an unemployed person, but claims entitlement to weekly income benefits under section 12 of the Schedule on the grounds that he had an offer of employment. 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:

1. Does Mr. Bitris qualify, from the date of the accident onwards, for weekly income benefits under section 12 of the Schedule based on a legitimate offer of employment at the time of the accident?

The parties agreed that disability under section 12 of the Schedule is not an issue.

2. Mr. Bitris also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Bitris does not qualify for weekly income benefits under section 12(2)1(iii) of the Schedule.

2. Mr. Bitris is not entitled to his expenses incurred in the hearing.

3. Allstate is entitled to an award of $2,000 under section 282(11.2) of the Insurance Act to be paid by Mr. Bitris.

Hearing:

The hearing was held in Toronto, Ontario, on August 16 and September 1, 1995 before me, Beth Allen, Arbitrator.

Present at the Hearing:

Applicant: Khalil Bitris

Applicant's Representative: Robert Lee Barrister and Solicitor

Insurer's Representative: Rick Rose Barrister and Solicitor

Insurer's Officer: Gary Tsuji Claims Manager

Witnesses for the Applicant: Fiktor Yonan Odah Khananisho William Sada

For the Insurer: Ellen Katz Zuhair Toma Isaac Moussadji Faozi Zoura

Exhibits:

Exhibits are listed at Schedule A.

Interpretation services in Assyrian were provided by Watson Zaia of Omnicom.

FACTUAL BACKGROUND

Mr. Bitris was injured in an automobile accident on November 14, 1993. At the time, he was insured under an automobile insurance policy with Allstate Insurance Company of Canada ("Allstate"). He has received weekly benefits at $185 per week under section 13 of the Schedule and continues to receive these benefits. Mr. Bitris claims, however, that he is entitled to section 12 benefits since he had a legitimate offer of employment within the requirements of the Schedule at the time of the accident..

MR. BITRIS' EMPLOYMENT BACKGROUND

Mr. Bitris is a 42-year-old Assyrian man who emigrated from Iraq to Canada via Italy in 1986. Before arriving in Canada, he lived in Italy for about five years. In Iraq he worked as a carpenter in the construction industry and as a cook in a restaurant. While in Italy Mr. Bitris worked in construction as well as in a restaurant. After arriving in Canada, he worked at Majestic Plastics as a machine operator in 1987. Allstate submitted into evidence documents which show that Mr. Bitris worked at Majestic Plastics until September 1987 (Exhibit 3). This is the only documentary evidence of Mr. Bitris' work history that was presented.

Mr. Bitris testified, however, that his last jobs were in 1988 or 1989 as a shelf stocker at a Mac's convenience store, and as a painter with a person named Johnson Shimo. He stated that he had the employment records for these jobs at home, yet he did not present copies of them at the hearing. Mr. Bitris also testified that he worked as a cook of Middle Eastern foods at a restaurant in Toronto called the Three Musketeers.

Mr. Bitris further claims that before the accident the Arabella Billiards and Snooker Club (the "Arabella") had offered him a job as a cook.

Allstate's evidence about Mr. Bitris' employment at Three Musketeers directly contradicts that of Mr. Bitris. Mr. Bitris' relationship with Three Musketeers is significant because the owners of the Arabella claim that their job offer to Mr. Bitris was based on his experience cooking Middle Eastern food at Three Musketeers.

Mr. Bitris did not know whether he worked at Three Musketeers in 1987 or 1988, but stated that he worked there for seven or eight months. He stated that this was his only experience as a cook in Canada. At the time, the owners of Three Musketeers were two brothers, Faozi Zoura and Zoura Zoura. Mr. Bitris testified that he earned $350 a week at Three Musketeers and was paid in cash. His evidence was that he ran the restaurant part of the business, cooking food and serving beverages at the bar. His work days were 10 to 12 hours long.

Fiktor Yonan, Odah Khananisho and William Sada testified on behalf of Mr. Bitris. Mr. Yonan and Mr. Khananisho are the owners of the Arabella who allegedly offered Mr. Bitris a job. The three witnesses admitted being personal friends of Mr. Bitris. Mr. Yonan has known him since about 1986 and Mr. Khananisho has been a close friend since 1983, when they both lived in Italy. In fact Mr. Khananisho sponsored Mr. Bitris as an immigrant to Canada. William Sada, a previous owner of the Arabella, has been Mr. Bitris' close friend for about eight years, frequently socializing with him. Mr. Sada attended to many of Mr. Bitris' personal needs after the accident.

Mr. Bitris' witnesses testified that Mr. Bitris worked at Three Musketeers when they were customers there in 1987 or 1988. Mr. Sada stated that he saw Mr. Bitris working there at least 100 times.

However, Mr. Faozi Zoura, testifying for Allstate, directly contradicted this evidence. He testified he became an owner of Three Musketeers in approximately 1989, and sold the restaurant about two-and-a-half years ago. He indicated that he operated the business with the assistance of his three sons. Mr. Zoura stated that he knew Mr. Bitris as a customer at Three Musketeers and has known him since the time they lived in Italy.

Mr. Zoura testified that Mr. Bitris, like many other customers of Three Musketeers, would assist him for about a half-hour at a time, during periods when the restaurant was very busy. This help would take the form of the customers picking up their own food at the counter rather than waiting to be served. He emphatically denied that Mr. Bitris was ever paid or that Mr. Bitris ever cooked or ran the kitchen and the bar portion of the restaurant.

Zuhair Toma, a co-owner of Three Musketeers since 1992, testified that before becoming an owner, he had frequented Three Musketeers daily from 1986 onwards, in the afternoons and evenings. He lived in a neighbouring building. Mr. Toma confirmed Mr. Zoura's evidence. He regularly saw Mr. Bitris socializing at Three Musketeers, mainly with Mr. Sada and Mr. Khananisho, but he never saw him working there under the Zoura's ownership.

Isaac Moussadji also supported Mr. Zoura's testimony. He has been a certified management accountant for 33 years. He has provided accounting services for Three Musketeers since the Zouras took over its ownership in 1989. He stated that family members operated the business under the Zoura's ownership. He testified that he had no knowledge of any persons working for cash at Three Musketeers. Mr. Moussadji testified that he does not know Mr. Bitris and in his capacity as accountant, he never saw any evidence of wages being paid to Mr. Bitris.

THE ALLEGED OFFER OF EMPLOYMENT

Mr. Bitris claims entitlement to weekly income benefits under section 12(2)1(iii) of the Schedule on the basis that at the time of the accident he was entitled to start work under a legitimate offer of employment. Section 12(2)1(iii) states:

12(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1He or she must have been at the time of the accident,

(iii) entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

Mr. Bitris' evidence is that the Arabella had offered him a job as a cook of Middle Eastern food. According to Mr. Bitris, Mr. Yonan and Mr. Khananisho offered him the position. Mr. Sada was present when the offer was made.

Mr. Bitris and his three witnesses all testified that the offer was made orally at the Arabella some time around the first week of November 1993. Neither Mr. Bitris nor his witnesses were absolutely certain of the exact date of the offer.

Mr. Yonan and Mr. Khananisho claimed they approached Mr. Bitris with the job offer. They stated that because they worked long hours, they desperately required a cook to assist them at the Arabella. They explained that they worked seven day weeks, about 70 hours per week. They performed all the cooking and serving of food and drinks to customers, as well as the cleaning. Mr. Yonan's wife would occasionally assist for no pay. Hiring a cook would allow them much needed time to spend with their families.

Mr. Sada's and Mr. Bitris' evidence differs on how the job offer came about. Mr. Sada and Mr. Bitris were positive that Mr. Bitris had approached Mr. Yonan and Mr. Khananisho and asked for a job on the day in question. Mr. Sada indicated that he knew his friend was desperate to find a job. They had gone to the Arabella together that day.

Mr. Yonan, Mr. Khananisho and Mr. Bitris stated that the job was to begin on November 15 or 16, 1993. However, there was contradictory evidence about the terms of the alleged offer. Mr. Bitris and Mr. Yonan testified that Mr. Bitris was offered gross pay of $2,000 per month or $500 per week. However, Mr. Khananisho testified that the $2,000 per month was to be net pay, after deductions.

There was no formal written agreement, application or other document evidencing this offer at the time the alleged offer was made.

Both Mr. Yonan and Mr. Khananisho testified that they did not advertise for the job they offered to Mr. Bitris. They indicated that they approached Mr. Bitris because they knew he had experience as a cook at Three Musketeers. Also, he was well-known in the Assyrian community and his presence as an employee at the Arabella would be an asset to their business. They had never employed a cook before they made the offer to Mr. Bitris, nor did they advertise for or hire a cook after it became apparent that Mr. Bitris was not able to take the job. Under cross-examination, neither Mr. Yonan nor Mr. Khananisho offered a clear explanation why a cook has never subsequently been hired at the Arabella, despite the alleged need for one. Mr. Khananisho indicated that the offer has remained open to Mr. Bitris for nearly three years, in case he wishes to work at the Arabella.

Mr. Bitris acknowledged that there was no written evidence of the job offer before the accident. However, Mr. Yonan provided a hand-written letter dated January 26, 1994 (Exhibit 1, Tab 5), directed "to whom it may concern", confirming that he offered a job to Mr. Bitris as a cook at the Arabella at a salary of $2,000 a month. Under cross-examination Mr. Bitris denied ever seeing this letter. He denied ever asking Mr.Yonan to provide the letter. He had no idea that Mr.Yonan was going to send the letter to Allstate. Mr.Yonan, however, contradicted this evidence. Under cross-examination Mr. Yonan testified that Mr. Bitris asked him to prepare the January 26, 1994 letter to confirm the November 1993 offer of employment.

Counsel for Allstate questioned both Mr. Yonan and Mr. Khananisho about the financial statements for the Arabella for January 1 to December 31, 1993 and January 1 to December 31, 1994 (Exhibit 4). The financial statements are unaudited and as such the information they contain reflects the information given to the accountant by the owners themselves. However, when asked under cross-examination about the accuracy of the statements, both Mr. Yonan and Mr. Khananisho conceded that the statements accurately reflect the Arabella's financial status during the relevant years.

Counsel for Allstate pointed out that Mr. Bitris' gross annual salary at $2,000 per month would have been $24,000; while his gross annual salary at $500 per week would have been about $26,000. Were the $2,000 per month to have been his net pay, his gross annual salary would have been about $30,000. According to the financial statements, the Arabella's net income for 1993 was $28,560.42, and was $19,026.79 for 1994. Mr.Yonan and Mr. Khananisho testified that they divide the net income from the business equally between themselves. Allstate questioned the plausibility of Mr.Yonan's and Mr. Khananisho's alleged offer to pay Mr. Bitris at $2,000 a month or $500 per week in the year after the accident since, according to the 1994 financial statement, this would have put the Arabella in a financial loss situation.

Mr. Yonan and Mr. Khananisho both attempted to explain this by testifying that they anticipated that Mr. Bitris' popularity in the Assyrian community would attract extra business. This would justify paying him at the salary they allegedly offered.

REASONS FOR DECISION

Mr. Bitris' entitlement to benefits under section 12 of the Schedule depends on my finding that, at the time of the accident, he had a legitimate offer of employment.

Considering the various inconsistencies in the evidence before me, I find that Mr. Bitris' evidence that the Arabella offered him employment is not credible.

Certain minor contradictions, such as differences in the evidence as to the date of the offer, other discrepancies as to dates, and disagreement on who approached who about the job at the Arabella, are not sufficient on their own to discredit Mr. Bitris. If I accepted Mr. Bitris' claim, these discrepancies might be reasonably attributable to fading memories, since we are looking at events dating back three years and more. However, I find the combination of the minor discrepancies with the more serious ones makes Mr. Bitris' evidence untrustworthy.

The evidence about Mr. Bitris' past employment at Three Musketeers, as well as about the terms of the alleged offer and the circumstances of Mr. Yonan's January 26, 1994 offer letter, causes me concern.

According to Mr. Bitris' evidence, the owners of the Arabella based their job offer primarily on his past cooking experience at Three Musketeers. However, I find Mr. Bitris' evidence in this area to be untrustworthy.

I have difficulty accepting the evidence of Mr. Bitris and his witnesses. Each of these witnesses, Mr. Yonan, Mr. Khananisho and Mr. Sada, is a personal friend of Mr. Bitris. None of Mr. Bitris' witnesses are independent, disinterested persons. As such it is reasonable to presume that they are interested in a decision in favour of their friend. For this reason, I place little weight on their testimonies about the offer of employment and Mr. Bitris' past cooking experience.

I find Allstate's evidence that Mr. Bitris was not employed by Three Musketeers is more reliable. Mr. Zoura's testimony that Mr. Bitris never worked at Three Musketeers under his ownership was particularly persuasive. Mr. Toma's and Mr. Moussadji's evidence confirmed Mr. Zoura's testimony.

I also considered Allstate's witnesses' relationship to Mr. Bitris. Mr. Moussadji had never met Mr. Bitris, while Mr. Toma and Mr. Zoura were acquainted with him. However, neither Mr. Toma nor Mr. Zoura apparently bore any animosity or ill-will against Mr. Bitris. I can find no motive for these witnesses to wilfully misrepresent Mr. Bitris' situation.

I find it implausible that Mr. Yonan and Mr. Khananisho would offer Mr. Bitris a job at a generous $2,000 per month or $500 per week as a cook, if Mr. Bitris did not have some past experience doing this work. Mr. Bitris testified that he had cooked Middle Eastern food in Iraq. However, there is no evidence that Mr. Yonan or Mr. Khananisho were aware of this. It is particularly difficult for me to accept that Mr. Yonan and Mr. Khananisho, on the uncertain prospect that Mr. Bitris' popularity would generate business income, would offer him a salary that would create financial difficulties for their business and virtually eliminate their own income.

There were also discrepancies within Mr. Bitris' evidence about the written offer letter.

Mr. Bitris' evidence conflicts with Mr. Yonan's about the January 26, 1994 letter written by Mr. Yonan. While Mr. Bitris insists that he did not know Mr. Yonan was going to write the letter, Mr. Yonan claims that Mr. Bitris actually requested the letter to support his claim about the job offer.

I also find it unlikely that the owners of the Arabella actually required a cook, since they never advertised for or hired a cook after Mr. Bitris' accident. Their expressed need for a cook is particularly implausible given that Mr. Yonan and Mr. Khananisho have left this job open for almost three years.

In conclusion, I am not convinced that Mr. Bitris had a genuine offer of employment at the time of the accident. For this reason, I find Mr. Bitris does not qualify for weekly income benefits under section 12 of the Schedule.

ENTITLEMENT TO EXPENSES AND ASSESSMENT OF COSTS

Mr. Bitris claims entitlement to an award of his expenses incurred in the hearing. An arbitrator has the discretion under section 282(11) of the Insurance Act to award expenses. This section provides:

(11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

Past arbitration cases have provided guidelines for the exercise of this discretion. In McCormick, Senior Arbitrator Naylor indicated that it is appropriate to award an applicant his or her expenses unless it is found that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."² In the Allison case, Arbitrator Renahan denied an award of arbitration expenses because the applicant was dishonest in presenting evidence.³

I adopt the approach used by the arbitrator in the Allison case. Mr. Bitris has been receiving disability benefits since the accident and continues to receive benefits. It is clear to me that Mr. Bitris has advanced a dishonest claim to increase the amount of his entitlement to benefits. I, therefore, decline to award Mr. Bitris his expenses of the arbitration.

Counsel for Allstate submitted that an assessment should be imposed against Mr. Bitris under section 282(11.2) of the Insurance Act. An arbitrator has the discretion under this provision to impose an assessment against the applicant if he or she commences an arbitration that is frivolous, vexatious, or an abuse of process. This section states:

(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

I exercise my discretion in this case to impose an assessment against Mr. Bitris. He has abused the arbitration process and consumed considerable time and expense in advancing his ingenuine claim.

Order:

1. Mr. Bitris does not qualify for weekly income benefits under section 12(2)1(iii) of the Schedule.

2. Mr. Bitris is not entitled to his expenses incurred in the hearing.

3. Allstate is entitled to an award of $2,000 under section 282(11.2) of the Insurance Act to be paid by Mr. Bitris.

September 20, 1995

Beth Allen Arbitrator

Date

SCHEDULE A

Exhibits

Exhibit 1 Book of exhibits prepared by counsel for Mr. Bitris (17 tabs).

Tab 1 Copy of newspaper article regarding Mr. Bitris' accident from The Toronto Sun, dated November 15, 1993, page 4.

Tab 2 Ontario Automobile Insurance Application for Accident Benefits, dated February 24, 1994.

Tab 3 Ontario Automobile Insurance Medical or Psychological Report, dated January 18, 1994.

Tab 4 Ontario Automobile Insurance Assessment of Claim by Insurer, dated February 28, 1994.

Tab 5 Letter from Fiktor Yonan, dated January 26, 1994.

Tab 6 Affidavit of Khalil Bitris, sworn February 10, 1995; letter from Fiktor Yonan, dated January 26, 1994; statement by Fiktor Yonan, dated April 27, 1994.

Tab 7 Statement by Fiktor Yonan, dated April 27, 1994.

Tab 8 Hand-written statement, as made by Mr. Bitris, undated.

Tab 9 Typed version of Mr. Bitris' statement of April 27, 1994.

Tab 10 Letter from Robert L. Lee, dated February 24, 1994.

Tab 11 Letter from Robert L. Lee, dated February 25, 1994.

Tab 12 Letter from Robert L. Lee, dated April 26, 1994

Tab 13 Letter from Robert L. Lee, dated May 2, 1994.

Tab 14 Letter from Allstate, dated May 25, 1994.

Tab 15 Letter from Robert L. Lee, dated February 13, 1994; authorization by Mr. Bitris, dated February 13, 1995.

Tab 16 Letter from Robert L. Lee, dated March 9, 1995.

Tab 17 Patient Medical Records - Sunnybrook Health Science Centre, dated April 18, 1994.

Exhibit 2 Letter from Revenue Canada, dated March 2, 1995

Exhibit 3 Record of Employment from Majestic Plastics (date unclear); letter from Mr. Hart of Majestic Plastics, dated January 27, 1988; letter, dated October 19, 1987 and receipt from Med Care, dated June 24, 1987; Workers' Compensation Board (WCB), Employer's Report of Accidental Injury or Industrial Disease; Time Card, dated September 27, 1987; Letters from WCB to Majestic Plastics, dated November 17, 1987 and October 15, 1987; Accident Cost Statements, dated February 1988, November 1987, October 1987 and December 1987; Letter from Majestic Plastics, dated June 29, 1987.

Exhibit 4 Financial Statements for Arabella Billiards and Restaurant for the period from January 1 to December 31, 1993 and 1994.

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 I, 1994. In this decision, the term "Schedule^1" will be used to refer to Regulation 672.
2. 2Ralph McCormick and Economical Mutual Insurance Company, Commission File No. A-00139, October 2, 1991, page 24.
3. 3Isabell Allison and Markel Insurance Company of Canada, Commission File No. A-001231, June 14, 1995 (under appeal), at page 14.