Ontario Insurance Commission
Neutral Citation: 1995 ONICDRG 64
Between:
Haisam Abou-Hantach Applicant
and
Allstate Insurance Company of Canada Insurer
DECISION
Issues:
The Applicant, Haisam Abou-Hantach, was injured in a motor vehicle accident on February 15, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer effective May 13, 1994. 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 issue in this hearing is:
- To what amount of weekly income benefits is the Applicant entitled?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant should have received $185.60 per week over 156 weeks for a total of $28,953.60. Instead, he has received $45,062.40. The Insurer is entitled to a repayment of $16,108.80 according to the provisions of section 27 of the Schedule (the "Schedule"), plus interest, according to section 27(4) from the date of this decision.
The Applicant is not entitled to his expenses of the arbitration.
The Applicant will pay the Insurer its assessment of $1,000 pursuant to section 282(11.2) of the Insurance Act.
Hearing:
The hearing was held in North York, Ontario, on February 27 and April 26, 1995, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant: Haisam Abou-Hantach
Applicant's Representatives: Neil Sacks, Barrister and Solicitor (April 26 only) Joseph Pileggi, Legal Assistant
Insurer's Representative: Ian Kirby, Barrister and Solicitor
Insurer's Officer: Philip Langford, Claims Manager
Witnesses: Haisam Abou-Hantach Khaled Abdelmoneim Kathleen Evans Glen Bacon
The parties filed ten exhibits at the hearing, including a brief of documents.
Evidence and Findings:
Mr. Haisam Abou-Hantach, 39, was injured in a motor vehicle accident on February 15, 1992. The Insurer accepts that the Applicant's injuries are sufficient to disable him from performing the essential tasks of his employment or self-employment for 156 weeks. This hearing concerns the amount of weekly income benefits Mr. Abou-Hantach should have received during the period from February 22, 1992 to February 22, 1995.
In the summer of 1991, Mr. Abou-Hantach began a business in Pickering called Metro Auto Sales and Service. He sold cars and did automobile repairs. However, his shop was not making money and he decided, in the late fall of 1991, to close it. Mr. Abou-Hantach closed his service department around December 21, 1991 and moved his equipment to other locations. He completed selling off his inventory of cars.
Mr. Abou-Hantach claims that he was entitled to start work with a friend, Khaled Abdelmoneim, who carries on a business known as Pyramid Door System Ltd. This business services and installs overhead doors, mainly in the commercial garage market. Mr. Abou-Hantach says he was to begin employment with Mr. Abdelmoneim on Monday, February 17, 1992, two days after the accident. Mr. Abou-Hantach says that he was to earn $18 per hour and to work more than 40 hours per week at this employment.
The Insurer says that Mr. Abdelmoneim made no legitimate offer of employment to Mr. Abou-Hantach prior to the accident and submits that Mr. Abou-Hantach fabricated the job offer after the accident, in an effort to obtain increased weekly income benefits from the Insurer.
Mr. Abou-Hantach, his girlfriend Kathleen Evans, and Khaled Abdelmoneim testified at the hearing. In addition, an investigator testified and various documents were filed, some relating to the offer of employment and some relating to other matters involving the Applicant. These other documents were letters written on the stationery of Pyramid Door System Ltd.
In this matter the Applicant bears the burden of proving, on a balance of probabilities, that he was "entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing" pursuant to section 12(2)1.iii. of the Schedule. Mr. Abou-Hantach has not done this. Although I believe that Haisam Abou-Hantach and Khaled Abdelmoneim had some discussions prior to the accident about Mr. Abou-Hantach working as a sub-contractor for Pyramid Door System Ltd., I am not satisfied that the discussions resulted in a "legitimate offer of employment made before the accident" as claimed by the Applicant.
Although he claimed to be starting work two days after the accident, he had made no agreement as to a time or a place to meet his employer.
Mr. Abou-Hantach's auto sales business had been closed since December 1991. In the circumstances of this case, it is too overwhelming a coincidence that Mr. Abou-Hantach should be starting to work full-time, two days after the accident. After the accident, Mr. Abdelmoneim took on no employees or subcontractors, but carried on the business alone as before. The business of Pyramid Door System Ltd. is still carried on from Mr. Abdelmoneim's vehicle, with the aid of a mobile telephone and a mail drop for his business address.
The Application for Accident Benefits by Mr. Abou-Hantach was dated March 2, 1992, well after his release from hospital. He first gave a statement to the claims representative on March 17, 1992. In my view, the Applicant clearly had time after the accident to consider his answers to the employment questions.
Various statements were given by Mr. Abou-Hantach and Khaled Abdelmoneim after the accident. In his first statement, dated March 10, 1992, Mr. Abdelmoneim stated that he had four employees working in his business and that he would have employed Mr. Abou-Hantach from February 17, 1992, at a rate of $18 per hour for a 40 hour work week. He claimed that he had work until June 1992. Thirteen months later, in April 1993, Mr. Abdelmoneim made a second statement, in which he confirmed that he had no employees and had never had any employees. He confirmed in that statement that he and Mr. Abou-Hantach had discussed Mr. Abou-Hantach working as a subcontractor in October 1991. He stated that about ten days later, they met again and Mr. Abdelmoneim wrote comments in the "for office use only" section of a job application. Two weeks following that, they met a third time and Mr. Abou-Hantach indicated he did not think it a good idea for him to be a subcontractor, and that he would prefer to continue to work with cars. In the April 1993 statement, Mr. Abdelmoneim claimed that after the accident Mr. Abou-Hantach asked him repeatedly to provide a letter stating that he was employed by Pyramid Door System Ltd. Mr. Abdelmoneim refused to provide such a letter.
Between the two statements, it would appear that relations deteriorated between the Applicant and Mr. Abdelmoneim, because a car which Mr. Abdelmoneim bought from Mr. Abou-Hantach in late 1992 was a "lemon" and Mr. Abou-Hantach would neither fix it nor return Mr. Abdelmoneim's money. In addition, in the spring of 1993, letters on the stationery of Pyramid Door System Ltd. were sent to the Department of External Affairs in an effort to secure for Mr. Abou-Hantach a travel document to allow him to return to Syria. These letters claimed that Mr. Abou-Hantach was an employee of Pyramid Door System Ltd. and that he had been so employed since April 1990. A second letter claimed that Haisam Abou-Hantach would be representing the company at a convention in West Germany in March 1993.
At the hearing, Khaled Abdelmoneim denied that he had written the letters. Although Mr. Abou-Hantach admitted that the contents of the letters were false, he insisted that the letters had been written and signed by Khaled Abdelmoneim.
A copy of a third letter was filed, signed by Khaled Abdelmoneim and acknowledged by him. This letter was directed to an official in the Department of External Affairs and stated that Mr. Abou-Hantach had never been employed by the company or supplied with Pyramid Door System Ltd.'s letterhead, or authorized to write or sign letters on Mr. Abdelmoneim's behalf. In his letter to External Affairs, dated March 15, 1993, Mr. Abdelmoneim claimed not even to have known about the existence of such letters prior to a telephone call from that office.
Mr. Abou-Hantach admitted he was convicted of an offence, as a result of his use of these letters.
At a meeting at the offices of the Applicant's solicitors in the fall of 1993 and at the hearing, Mr. Abdelmoneim's evidence, once again, was that Mr. Abou-Hantach would have begun work with Pyramid Door System Ltd. on February 17, 1992, at a rate of $18.00 per hour for a greater than 40 hour week.
However, during an interview with an investigator on December 13, 1993, Mr. Khaled Abdelmoneim reportedly admitted both that he gave Mr. Abou-Hantach letterhead on which to write the letters to obtain a travel document, and that he was to share in the insurance money to be received as a result of his false statements about Mr. Abou-Hantach's employment with Pyramid Door System Ltd. He confirmed to the investigator the veracity of his April 13, 1993 statement.
I conclude that the evidence which I heard about the Applicant's employment with Pyramid Door was fabricated to convince the Insurer to pay an amount of benefits for which the Applicant was not eligible. In my opinion, neither Mr. Abou-Hantach nor Mr. Abdelmoneim have a great regard for speaking the truth. Where the evidence conflicts, I prefer the evidence of Khaled Abdelmoneim in his statement of April 13, 1993, and his statements to the investigator of December 13, 1993, to the evidence of his other statements and his testimony at the hearing.
Even if I found that Mr. Abdelmoneim made Mr. Abou-Hantach a legitimate offer of employment, the outcome of this arbitration would be no different.
Mr. Abou-Hantach testified that he was to be paid an hourly rate of $18 for a more than 40 hour week. This does not accord with the evidence of his potential employer, Khaled Abdelmoneim of Pyramid Door System Ltd. Mr. Abdelmoneim was quite clear in his evidence that he would only have paid Mr. Abou-Hantach when he received payment from third parties contracting with Pyramid Door System Ltd. for the installation of garage doors. It was clear to me that Mr. Abdelmoneim contemplated a scheme of subcontracting to Mr. Abou-Hantach, not a traditional, hourly-waged employer-employee relationship.
Mr. Abou-Hantach brought no evidence of contracts which had been secured by Pyramid Door System Ltd. for him to complete. Neither did Mr. Abdelmoneim testify as to any contracts which he had to complete himself, or subcontract to others, as a result of the failure of Haisam Abou-Hantach to join his firm. Accordingly, Mr. Abou-Hantach would be entitled to only the minimum weekly income benefit, since he did not prove his gross weekly income would have exceeded $232.
Ms. Kathleen Evans testified that in the fall of 1991 she tried to dissuade Mr. Abou-Hantach from accepting a subcontracting arrangement with Khaled Abdelmoneim; she thought he was capable of getting a better position. She also testified that she recalled a conversation on February 14, 1992 with respect to these plans. Ms. Evans also claimed that in the late fall of 1991, Mr. Abou-Hantach had agreed to work for Mr. Abdelmoneim. This is inconsistent with the testimony of both the Applicant and Khaled Abdelmoneim. I am unable to accept Ms. Evans' evidence. She is regrettably not an independent witness, but a person closely linked to the Applicant and concerned about his financial well-being. Although I accept that there were some discussions between Mr. Abou-Hantach and Mr. Abdelmoneim regarding Mr. Abou-Hantach working for Pyramid Door System Ltd., I am not convinced discussions progressed to the state of a firm job offer as described by Mr. Abou-Hantach.
In the alternative, the Applicant would have been entitled to rely on his income from the four weeks preceding the accident, according to the provisions of section 12(7)1.i to prove a greater than minimum gross weekly income. On his application for accident benefits, Mr. Abou-Hantach claimed to have earned $600 per week in the four weeks before the accident. However on the evidence received at the hearing, I am not satisfied that Mr. Abou-Hantach earned a gross weekly income greater than $232 in the four weeks preceding the accident. Accordingly, on that basis as well, he would be entitled to only the minimum amount of weekly income benefits, or $185.60.
Expenses:
The Applicant seeks his expenses of this hearing. The Insurer, on the contrary, submits that I should deny the Applicant's expenses, and in addition, order that the assessment paid by the Insurer under section 14 of the Insurance Act should be repaid by the Applicant according to the provisions of section 282(11.2) of the Act.
In my view, this Applicant has advanced an entirely unmeritorious claim and fabricated much of the evidence before me. On that basis I deny him his claim for costs in the proceeding. The Insurer also requests that the Applicant pay its assessment according to the provisions of section 282(11.2) of the Insurance Act. That section provides:
(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 find that this Insured person has commenced a frivolous and vexatious arbitration and order that he repay the assessment fee of the Insurer, which in this case is in the amount of $1,000.
Order.
The Applicant should have received $185.60 per week over 156 weeks for a total of $28,953.60. Instead, he has received $45,062.40. The Insurer is entitled to a repayment of $16,108.80 according to the provisions of section 27 of the Schedule, plus interest, according to section 27(4) from the date of this decision.
The Applicant is not entitled to his expenses of the arbitration.
The Applicant will pay the Insurer its assessment of $1,000 pursuant to section 282(11.2) of the Insurance Act.
June 7, 1995
K. Julaine Palmer Arbitrator