Neutral Citation: 1995 ONICDRG 8
File No. A-007573
ONTARIO INSURANCE COMMISSION
BETWEEN:
FRANCINE E. ALEXANDER
Applicant
and
CONSTITUTION INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Francine E. Alexander, was injured in a motor vehicle accident on September 12, 1991. She applied for and received statutory accident benefits from Constitution Insurance Company of Canada ("Constitution"), payable under Ontario Regulation 6721. Weekly benefits were terminated by Constitution on November 7, 1992. Ms. Alexander seeks reinstatement of weekly benefits. She also seeks a determination as to whether she is entitled to weekly benefits under section 12 or section 13 of the Schedule. The parties were unable to resolve their disputes through mediation and Ms. Alexander applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").
This case is already the subject of a "Decision on Preliminary Issue" released November 25, 1994, by Arbitrator Shemin Manji. In that decision, Ms. Manji decided what issues should be included in the arbitration. By agreement of the parties, the only issue before me in this hearing is:
Was Francine Alexander on a "temporary lay-off" at the time of the motor vehicle accident on September 12, 1991?
The Applicant also claims interim benefits under section 279(4.1) of the Act, as amended.
Result:
- Ms. Alexander was not on a temporary lay-off at the time of the motor vehicle accident on September 12, 1991. Her entitlement to benefits should be considered under section 13 of the Schedule.
Hearing:
The hearing was held on December 5, 1994, at North York, Ontario, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Francine E. Alexander
Applicant's Representatives:
Kenneth Arenson
Barrister and Solicitor
Kim Litwood
Law Clerk
Insurer's Representative:
Philippa G. Samworth
Barrister and Solicitor
Insurer's Officer:
Mary DiMartino
Claims Manager
Evidence and Findings:
Ms. Alexander was involved in a motor vehicle accident on September 12, 1991. She was not employed at the time of the accident and she had not worked for 180 days in the 12-month period before the accident. She had worked as a real estate salesperson prior to the summer of 1990, and claims that she was on a temporary lay-off.
Ms. Alexander received weekly benefits, under section 13 of the Schedule, from September 19, 1991 to November 7, 1992, when benefits were terminated. Ms. Alexander disputed the termination of benefits. She also claimed that because she was on a temporary lay-off at the time of the accident, she was entitled to receive benefits under section 12, rather than section 13 of the Schedule.
The Insurer took the position that, at the time of the accident, Ms. Alexander was an unemployed homemaker. She had last worked in June 1990, 15 months prior to the accident of September 12, 1991.
Ms. Alexander took the position that she was self-employed when she worked as a real estate salesperson. The Insurer, on the other hand, was of the view that Ms. Alexander was employed by Ross Lloyd Martin, an insurance brokerage, and was not self-employed.
The Applicant's counsel advanced an inventive argument with respect to the language of section 12 of the Schedule. He submitted that with respect to a self-employed person, the phrase "temporary lay-off" should be interpreted to be the equivalent of a withdrawal of services, because otherwise a self-employed person could never withdraw from the workforce, as could an employed person, and still preserve his or her entitlement to weekly income benefits. The Insurer responded that, on the contrary, section 12(3) of the Schedule provides that persons who are not employed at the date of the accident must look to their previous employment in the past year, and if they have been employed or self-employed for 180 days, they are entitled to weekly income benefits.
The period in question in this action is the period between November 7, 1992 and September 18, 1993, when benefits were reinstated for Ms. Alexander following a second motor vehicle accident. The remainder of this hearing has been adjourned until February 1995 so that the outstanding issue of eligibility, under the proper section, can be ascertained.
Background
Ms. Alexander was first licensed as a real estate agent in 1983. She worked for approximately four brokers before working as a salesperson with Ross Lloyd Martin. Ms. Alexander specialized in the sale of new condominiums.
Ms. Alexander's remuneration consisted of a flat rate commission on the sale of each unit. As each offer to purchase was accepted, an amount equal to the commission from the sale on closing was credited to an account receivable in Ms. Alexander's name in the offices of the real estate broker. Ms. Alexander would draw against these credits for her monthly remuneration. Ms. Alexander testified that the broker deducted Canada Pension Plan benefits, U.I.C. premiums, and income taxes at source in relation to the commission monies paid out to her, as they were paid. She received a T-4 slip every year. She had no extended health or other benefits.
Ms. Alexander described her job working in the condominium office. She went to the office at approximately 1:00 p.m. and stayed until 9:00 p.m. She was involved in many facets of the planning of the condominium project. Ms. Alexander testified that she was "assigned" to a condominium project by the broker. She had no choice in the assignment, however she could decline to become involved if it was a great distance from her home. She reported to a manager at Mr. Martin's office who checked out the condominium sites to see what the traffic was like, and to see what promotions could be offered to increase sales opportunities.
Ms. Alexander resigned her position in June 1990. A copy of her letter of resignation was filed. Ms. Alexander was dissatisfied with the financial arrangements in place at that time. It was apparent to her that the builders were going bankrupt and she was not receiving her expected draw.
In the period after her resignation, Ms. Alexander sought other employment; for two weeks she tried a job in which she sold clothing at old age and nursing homes. In addition, she registered with an employment agency for individuals over the age of 55. She sought work in the medical secretarial field, other office work, and in the field of property management. Ms. Alexander also worked for one day at Lipton's clothing store in the Yorkdale Mall; however, a promise of employment at one of three Toronto Lipton's locations did not materialize before that enterprise went bankrupt. She testified that she sent out a lot of résumés. She said that she had no money to start a business of her own.
During this time, Ms. Alexander also testified that she received a real estate newsletter, her MLS books, and visited condominium sites which she knew, and spoke to the agents. They confirmed to her that not much was happening in the new condominium sales market. She lived on U.I.C. benefits and also cashed in savings. Ms. Alexander testified that she had not given up on real estate, but intended to go back into that field when the market picked up. By the time of the accident in September 1991, the market had not yet "picked up".
Ms. Alexander testified that she considered herself self-employed, because if she did not sell condominiums, she did not get paid. She contrasted this with a contract of employment where one would be paid even if one did not sell any condominiums.
When Ms. Alexander applied for benefits after her motor vehicle accident, she checked off a box on the Application for Accident Benefits marked "unemployed". Other choices with respect to that category included "employed", "self-employed", "on a temporary lay-off", "retired". Ms. Alexander agreed that she had not worked 180 days out of the previous year. Ms. Alexander agreed that upon her resignation from Ross Lloyd Martin, she had no real intention of returning to that company. She indicated that she was called by the company in the spring of 1991 with respect to a small project in Newcastle selling some new homes. However, she refused to entertain the idea of becoming engaged in that project as it was too far from her home.
Findings
I find that at the time of the accident, Ms. Alexander was neither employed nor self-employed, nor was she on a temporary lay-off. Accordingly, she does not qualify for weekly income benefits under section 12(2) of the Schedule. I further find that she does not qualify under section 12(3) of the Schedule as she was not employed or self-employed for any 180 days in the 12-month period before the accident.
In my view, based on the evidence at the hearing, Ms. Alexander was employed as a commission salesperson by Ross Lloyd Martin until she resigned her position in June 1990. Ms. Alexander's employment was not remunerated by salary or hourly wages, but by commission. She received instructions from a manager as to where she was to work; she had set hours of work; she worked on the condominium premises; her employer deducted CPP, UIC and income tax at source and gave her a T-4 slip at the end of each year; she acknowledged that Mr. Martin had a right to discharge her and that she had a right to terminate her services. This was a right she exercised in June 1990. All of these factors are indicia of an employment relationship.
Ms. Alexander resigned her position in June 1990. In no way could this severance be classified as a "temporary lay-off". Even Ms. Alexander acknowledged that she had no intention of returning to the Martin firm, although she was approached later about a small project in Newcastle. In addition, it was she who initiated the termination of services, not her employer. Further, Ms. Alexander actively sought other employment, in a wide range of job areas, after leaving the Martin firm. And finally, in her application for accident benefits, Ms. Alexander checked off the box marked "unemployed".
Interim Benefits:
The Applicant, without calling any medical evidence, asked for an order providing interim benefits until the February hearing date. The parties were provided with a copy of the decision in Nadine Osbourne and Allstate Insurance Company of Canada and York Fire & Casualty Company, November 18, 1994, OIC File Nos. A-009110 and A-009111. That decision dealt with interim benefits.
I received no medical evidence in this hearing, nor heard anything but very brief testimony about the effect of the accident on Ms. Alexander's health. Accordingly, I have no basis to make any order of interim benefits.
Continuation of Hearing
This case is scheduled to resume in February before me for consideration of Ms. Alexander's entitlement to benefits under section 13 of the Schedule after November 7, 1992.
Order:
- Ms. Alexander was not on a temporary lay-off at the time of the motor vehicle accident on September 12, 1991. Her entitlement to benefits should be considered under section 13 of the Schedule.
January 31, 1995
K. Julaine Palmer Arbitrator
Date