Neutral Citation: 1995 ONICDRG 51
File No. A-004447
ONTARIO INSURANCE COMMISSION
BETWEEN:
RANDI OSBORNE
Applicant
and
CANADIAN GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Randi Osborne, was injured in a motor vehicle accident on February 2, 1991. He applied for and received weekly income benefits from Canadian General Insurance Company ("Canadian General"), payable under Ontario Regulation 6721. At the time of the accident, Mr. Osborne owned and operated a courier service, which continued to operate after the accident. The business closed on March 31, 1991. During the period between the accident and the closure of the business, Mr. Osborne received certain payments from it. Canadian General argues that the money paid to Mr. Osborne by the courier service is deductible from his weekly income benefits. The parties did not resolve the dispute through mediation and Mr. Osborne applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
Do payments from Mr. Osborne's business qualify as post-accident income under section 15 of the Schedule?
Mr. Osborne claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
Payments from Mr. Osborne's business qualify as post-accident income under section 15 of the Schedule. This income is deductible from Mr. Osborne's weekly income benefits during the period before April 1, 1991.
Hearing:
The hearing was held in North York, Ontario, on October 24 and 25, 1994, before me, Fred Sampliner, arbitrator.
Present at the Hearing:
Applicant: Randi Osborne
Applicant's Michael Huclack Representative: Barrister and Solicitor
Insurer's Gregory Heckel Representative: Barrister and Solicitor
Witnesses: Wayne Osborne Randi Osborne John Seigel Daniel Edwards
Exhibits:
The parties filed six exhibits. On consent, Canadian General filed an accounting report after the hearing concluded.
Evidence and Findings:
When an insured person becomes disabled from work due to injuries sustained in an automobile accident, he or she may be eligible for a weekly benefit from the automobile insurer under the Schedule. Income earned by the insured person after the accident is deducted from the weekly benefit under section 15 of the Schedule:
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.
At the time of the February 2, 1991 accident, Randi Osborne owned and managed Paradise Courier ("Paradise"). His cousin, Wayne Osborne, was the co-manager. Randy, Wayne and the independent drivers that they hired delivered airline tickets to customers of Marlin Travel ("Marlin") in the metropolitan Toronto area.
All of Paradise's courier work came from Marlin Travel, and essentially the company was reliant upon Marlin's business. When Marlin failed to renew a four year service contract with Paradise, which expired on March 31, 1991, Paradise laid off its employees and went out of business. However, for nearly two months after the accident, Paradise Courier continued to operate under the management of Wayne Osborne.
I heard a great deal of evidence about Randi Osborne's contact with the business after the accident. Randi Osborne testified that he was in hospital for about a month after the accident. While in hospital, Randi may have briefly discussed business with his cousin, Wayne, but he maintained that he was not able to make decisions or handle the day-to-day affairs.
When Randi Osborne left the hospital, he did not return to live with his wife. He went to live at his girlfriend's house. Apparently, Mr. Osborne's marriage, his health and his business were simultaneously in turmoil. However, Randi Osborne stated that from the time that he left hospital at the end of February 1991, until Paradise closed shop at the end of March 1991, he and Wayne talked about the business every day.
In my opinion, the evidence of Randi Osborne's participation in the operations of Paradise Courier is not relevant to the determination of post-accident income. The business was an unincorporated sole proprietorship owned by Randi Osborne. He had management authority and ownership of the business both before and after the accident. Because Randi Osborne was the owner and manager at all relevant times, I find that any money flowing to him from Paradise qualifies as post-accident income within the meaning of section 15.
I am provided with documentary evidence that Randi Osborne was in receipt of post-accident income from his business. Copies of two cheques drawn on the account of Paradise Courier and payable to Randi Osborne in the sum of $4,130 and $5,000 were presented at the hearing. Randi Osborne denies receiving any of these funds. Instead, he claims that he received only $3,000 from Paradise after the accident. Neither the company records nor his cousin verify payment of this sum.
Randi Osborne testified about his recall of the events and his income after the accident. Early in his testimony, Randi Osborne said that he sustained a double fracture of the skull, two brain hematomas, and a broken vertebrae in the accident. He was in a coma for some time, and remained in hospital for nearly a month. According to Randi, his first post-accident recollection is talking to a friend while in hospital, towards the end of February 1991.
Randi Osborne stated that the accident has left him with poor organizational skills and memory. His higher brain functions are impaired. More importantly, he admitted that he has poor recall of the events immediately after the accident.
Randi Osborne's inability to accurately recall events after the accident was demonstrated during his evidence. In testifying, Randi Osborne vacillated and was unsure of his answers. Sometimes he required repetition of the question, demonstrating difficulty in concentration.
It is apparent that due to Randi Osborne's injuries he does not have an accurate recall of the events during the two months after the accident. I find that his evidence about this period is not reliable.
Wayne Osborne testified that he negotiated the $5,000 cheque payable to Randi and handed him the cash. Wayne denied that Randi received anything more than $5,000 from Paradise after the accident. However, Wayne Osborne did not explain the $4,130 cheque payable to Randi Osborne.
The cheques payable to Randi Osborne, drawn on and processed through the Paradise account, create a presumption that he received the $5,000 and $4,130. Wayne Osborne admitted cashing the first cheque and providing the money to his cousin. However, Wayne's denial that Randi Osborne received further money from Paradise does not, in my opinion, adequately explain the $4,130 cheque. I prefer the document over Randi and Wayne Osborne's denial of this payment. I find that the cheque is reliable proof that Randi Osborne received $4,130 from Paradise after the accident.
There is some question whether these funds might represent pre-accident income. It is apparent that the $5,000 cheque, dated March 28, 1991, is removed in time from the accident, and represents post-accident income. On the other hand, the notation on the $4,130 cheque, dated February 15, 1991, indicates that it is compensation for courier services performed from February first to the fifteenth. Randi Osborne was in hospital for all but one day of that period. Thus, the statement on the check cannot be accurate. I do not accept that any portion of the $4,130 cheque should be attributed to Randi Osborne's courier services before the accident.
In sum, I find that Randi Osborne received $4,130 and $5,000 in post-accident compensation from Paradise Courier. In accordance with section 15 of the Schedule, I find that $7,304 (80% of the post-accident income) is deductible from Randi Osborne's weekly income benefits before March 31, 1991.
Expenses:
I exercise my discretion to award Mr. Osborne his expenses of the arbitration.
Order:
Canadian General is entitled to deduct $7,304 against the amount of weekly income benefits owed to Randi Osborne for the period before April 1, 1991.
Canadian General will pay Randi Osborne his expenses of the arbitration.
May 10, 1995
Fred Sampliner Arbitrator
Date