Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 176
Appeal P-000602
OFFICE OF THE DIRECTOR OF ARBITRATIONS
MANUEL LOPES
Appellant
and
FEDERATION INSURANCE COMPANY OF CANADA
Respondent
Before:
Elisabeth Sachs
Counsel:
Michael E. Cobb (for Manuel Lopes)
David M. Miller (for Federation Insurance)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitration order dated November 9, 1992 is confirmed.
Mr. Lopes is not entitled to his appeal expenses.
October 22, 1996
Elisabeth Sachs Director of Arbitrations
Date
REASONS FOR DECISION
I. BACKGROUND
Manuel Lopes was injured in a motor vehicle accident on September 6, 1990. He reported the accident promptly to his insurer, Federation Insurance Company of Canada ("Federation"), but only applied for weekly income benefits under section 12 of O. Reg 672, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the Schedule) six months later. Federation paid Mr. Lopes five weeks of income benefits at the minimum rate. It disputed Mr. Lopes' employment status at the time of the accident, the disabling nature of his injuries and any claim for benefits above the minimum amount of $185.60. Mr. Lopes claimed continuing entitlement to income benefits to the end of February, 1992.
An arbitration hearing took place over three days at which Mr. Lopes, his family physician, a vocational rehabilitation expert and one other person testified. Twenty exhibits were filed. The arbitrator found Mr. Lopes entitled to weekly income benefits to November 14, 1991. However, she held that Mr. Lopes had not met the onus of proving a gross income for the 52 week period before the accident to entitle him to an award beyond $185.60 weekly. She further ordered Federation was entitled to a credit for amounts Mr. Lopes earned during the post-accident period.
Mr. Lopes appealed the finding with respect to the level of his gross income, alleging that the arbitrator erred in not accepting that he was receiving an average gross income of $450 weekly, primarily through taking money "out of the till" from his pizza business which he sold just prior to the accident. On appeal, Mr. Lopes seeks to introduce as fresh evidence a number of documents to corroborate his living expenses to show he could not have been covering his ordinary living expenses without taking cash from the business. He also disputed the arbitrator's finding that she could not, on the testimony and scant documentation before her, ascertain what net income he had in the pre-accident period as a salesman for National Safety Associates.
II. ISSUES AND ANALYSIS
A. Fresh Evidence
Mr. Lopes asks that certain documents be admitted on the appeal, and thereafter a re-hearing held, to determine his true income picture which he claims will result in a much higher weekly income benefit payable. He relies on a statement made by the arbitrator at page 30 of her decision, as follows:
It is my responsibility to accept proof from an applicant, which is worthy of belief, substantiating his claims with respect to pre-accident income. It is difficult for applicants to come before me as an adjudicator and admit they have lied in other circumstances where a truthful response was required. It becomes even more difficult to unweave a web of deceitful behaviour, once it has ben initiated.
I say this, because in my view, had the Applicant brought forward sufficient, compelling evidence of greater income, I would have found in his favour, regardless of the false income tax returns.
(Emphasis added)
Mr. Lopes says he now has telephone, public utility, repair and mortgage bills available, marked as paid, which he could not have paid unless he was taking a certain amount of money from the pizza business. He notes that the arbitrator accepted his own testimony and the evidence of a witness who saw him removing money from the cash register on weekends and other times. Mr. Lopes testified he took between $400 to $500 weekly unreported in business documents or in his personal income tax returns. The arbitrator does not record in her decision whether the witness knew what amounts he observed Mr. Lopes take other than to say at page 16 of the decision that the witness "understood that the Applicant was living on the earnings of the restaurant".
In the absence of a transcript, I can only take the record as it exists before me on that issue. Clearly, while the arbitrator was prepared to accept the witness' and Mr. Lopes' testimony on the fact of taking cash, she did not accept it for establishing an amount. She wrote at page 30: I accept that, in order to meet his living expenses, the Applicant must have earned some income during that period. However, he has produced insufficient evidence of his exact income. ...I am unable to accept his bald assertion that he extracted $400.00 to $500.00 per week from the cash register of 789018 Ontario Inc. as sufficient, reliable proof of this greater level of income.
Mr. Lopes knew early on that Federation was not prepared to accept his unsupported statements about his income level from employment or other sources. During the course of the arbitration pre-hearing on June 19, 1992, as confirmed in the pre-hearing letter, documentation surrounding income was referred to several times as being crucial to the weekly benefit level determination. Mr. Lopes understood he was to furnish all his available income documents to Federation. When the arbitration hearing started in July, 1992, Mr. Lopes had not yet done so. He was granted an adjournment to September in order to gather his evidence. The results are recorded in the arbitrator's comments above.
A number of cases have commented on the criteria to be applied in determining whether new evidence should be admitted in the appeal process.1 There is no question the documents now being put forward were available at the time of the hearing, and well before. That alone might preclude their admission at this late stage. The time for proving income was at the hearing, in whatever manner was available then. I appreciate Mr. Lopes had moved his residence several times and severed the relationship with persons living with him (and presumably in a position to know something about his income and expenses) at the time of the accident. Nevertheless, since Mr. Lopes now seeks to introduce bills and receipts from that time, it appears they were available but not produced earlier. Relying on the arbitrator's statement that she might have been more inclined to award a larger amount if sufficient evidence had been forthcoming, does not mean Mr. Lopes now has an automatic second opportunity to produce more evidence. However, this aspect is but one to be considered.
The criteria are guidelines only, and each case will be looked at on its own merits including the nature of the evidence initially before the arbitrator and findings she made relative to its weight and credibility.
The reliability of the documents may not be in issue, particularly if they are certified as paid by the utility suppliers or bear payment stamps. They may indeed show that Mr. Lopes, and the persons living with him, had financial requirements to meet a certain standard of living, and that the payments were made.
The relevance of these documents, on the other hand, is more problematic. They will be tendered to show Mr. Lopes, in order to pay his household expenses, had to have a monthly income of some fluctuating amounts. That proposition was already accepted by the arbitrator. More importantly, though, the source of that income and whether it was generated by Mr. Lopes himself, remain unknown.
The arbitrator noted the lack of any banking records or a witness who could "credibly substantiate his income, other than brief testimony from one friend....[which] was vague". (Decision p. 30). There is no suggestion bank records, or another credible witness who might not have been available earlier, can now testify as to Mr. Lopes' income. Indeed, the arbitrator was faced with personal income tax returns showing Mr. Lopes' total income to be $1,562 in the calendar year before the accident, and a net income $5,683 in 1990. I do not believe telephone, utility and repair bills, and mortgage payment receipts come close to meeting the test for admission of fresh evidence.
B. Rehearing of Evidence
Mr. Lopes asks that I rehear him and the witness who testified at the hearing to determine in what range his pre-accident income might fall. I have stated previously that although re-hearings are within the Director's prerogative on appeal, they are not entertained as of right and will only take place in the rarest of cases. The Director's function is that of appeal, not to re-try the case.2
Mr. Lopes' alleges the witness' evidence was simply dismissed as "vague" without comment as to its credibility. Even if credible generally, the arbitrator was entitled to conclude the evidence was imprecise or unhelpful. The arbitrator found the evidence confirmed Mr. Lopes was stealing from the business, but not in what amount. It is not the Director's role to come to conclusions different from those of the arbitrator unless, on a review of the record, the findings made have insufficient or no evidence to support them. There was definitely enough evidence to show Mr. Lopes was taking money, but he could not meet the onus of showing what amount he took, nor what he earned as an apparently self-employed salesman in the pre-accident period. Filling in those gaps after the hearing is not what is contemplated in the appeal process.
III. EXPENSES
This appeal was unsuccessful. In my view, it was premised on trying to prove well after the arbitration those facts which should have been brought forward on proper evidence, then available, at the hearing. I decline to award expenses in this case.
October 22, 1996
Elisabeth Sachs Director of Arbitrations
Date
Footnotes
- See Plows and Jevco, (May 22, 1992, OIC P-000175/000588), applied in Bruno and Liberty Mutual, (August 31, 1993, OIC P-002249) and Shelley L. P. and Royal, (June 23, 1995, OIC P-00235) and subsequent cases. The criteria include: the evidence should not generally be admitted if with due diligence it could have been adduced at the hearing; it must be reasonably capable of belief; relate to a decisive issue and, if believed, be expected to have affected the result.
- See Calogero and Co-operators, (February 13, 1992, OIC P-000251) and the subsequent cases applying the principles first enunciated in it.