Neutral Citation: 1996 ONICDRG 183

OIC A95-000369

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIA RIBEIRO

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON PRELIMINARY ISSUES

Issues:

The Applicant, Maria Ribeiro, was injured on February 25, 1994. She applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee refused to pay any benefits. Guarantee claims that Mrs. Ribeiro is not entitled to benefits for two reasons. First, she was not involved in an "accident." Second, she failed to submit an application for benefits to Guarantee within 90 days of receiving the application form.

The parties were unable to resolve their disputes through mediation and Mrs. Ribeiro applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

1. Is Mrs. Ribeiro precluded from claiming statutory accident benefits because she was not involved in an "accident" as defined in section 1 of the Schedule?

2. Is Mrs. Ribeiro precluded from claiming statutory accident benefits because she failed to submit an application for benefits to Guarantee within 90 days of receiving the application form pursuant to section 59(3) of the Schedule?

Result:

1. Mrs. Ribeiro was involved in an "accident" as defined in section 1 of the Schedule. Accordingly, she is eligible for benefits under the Schedule.

2. Mrs. Ribeiro is not precluded from claiming statutory accident benefits because she failed to submit an application for benefits within 90 days of receiving the application form.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on April 2, 3 and 24, 1996, before me, Arbitrator Shemin Manji.

Present at the Hearing:

Applicant:

Maria Ribeiro

Mrs. Ribeiro's Representative:

Michael J. Gillen Barrister and Solicitor

Guarantee's Representative:

Fiona E. Porter Barrister and Solicitor

Interpretation services in Portuguese were provided by Rosa-Maria Fuente Fernandez.

Witnesses:

Maria Ribeiro

Isabel Santos

Maureen Magill Perry

Dragan Komnenovic

Arthur Ronald McEwan

Exhibits:

A list of exhibits and other documents before the Arbitrator is attached as Appendix A. A list of authorities submitted by the parties is attached as Appendix B.

REASONS FOR DECISION:

1. Facts and Issues

Mrs. Ribeiro is 60 years old and resides with her husband in Bramalea, Ontario. Mrs. Ribeiro was born in Portugal and immigrated to Canada in 1988. She speaks Portuguese and a little English.

In February 1994, Mrs. Ribeiro was self-employed, cleaning houses. At that time, she and her husband did not own an automobile. Mrs. Ribeiro testified that she travelled to and from work by public transportation. On the morning of February 25, 1994, Mrs. Ribeiro went to clean a house on Mineola Road in Mississauga. She finished cleaning the house at 2:00 p.m. After completing her work, she walked to the closest bus stop to catch a bus to Square One. At Square One, Mrs. Ribeiro transferred to a Route 19 Mississauga bus which would take her to the Bus Terminal at Shopper's World in Brampton. From there, she would transfer to the Route 1B Brampton bus which would take her to her home in Bramalea.

The Route 19 Mississauga bus pulled into the Shopper's World Bus Terminal on time at 2:56 -2:57 p.m. When the bus pulled into the Bus Terminal, its designated parking spot in the Terminal (adjacent to or alongside the concrete platform where passengers are generally let off) was occupied by the Route 1B Brampton bus. The bus driver of the Route 19 Mississauga bus, Mr. Dragan Komnenovic, testified, and I accept his evidence, that this was a regular occurrence because both the Route 19 Mississauga bus and the Route 1B Brampton bus had been designated the same parking spot. The Route 1B Brampton bus was scheduled to leave the Terminal at 3:00 p.m.

Mr. Komnenovic testified that he did not pull up to the concrete platform and park the Route 19 bus in a straight line directly behind the Route 1B Brampton bus. Rather, he parked the bus 15 to 16 feet behind the Route 1B Brampton bus.² The distance between the front door of his bus and the platform or island was 16 feet. The distance between the middle door of his bus and the platform or island was 21 to 23 feet.³ Mr. Komnenovic testified that he parked where he did because there was nowhere else to park and it was the safest area. He had parked in this spot before.

Mrs. Ribeiro and Mr. Komnenovic gave conflicting testimony about what happened to Mrs. Ribeiro after Mr. Komnenovic parked the bus.

Mrs. Ribeiro testified that she was the first passenger to get off the bus because she had been sitting near the front door. She exited from the front door. Mrs. Ribeiro testified that as she was exiting from the bus, she noticed accumulations of snow and ice near the bus. When she reached the bottom step of the bus, she started to step down onto the ground with her left foot first, holding onto the bar or pole on the bus with her right hand. She released her hand when her left foot was on the snow and ice on the ground. Just as she released her hand, her left foot on the ground (her right foot still being on the bottom step of the bus) slipped backwards and she fell forwards onto the snow and ice hitting her face, including her forehead and hand.

Mrs. Ribeiro testified that after she fell, a woman in her twenties helped her to her feet. Mrs. Ribeiro had never met the woman before. Mrs. Ribeiro's eyeglasses had fallen off her face when she fell. The woman helped her find the glasses (they were broken). Mrs. Ribeiro testified that after she stood up, she was in shock. She was covered with snow and mud. Her nose was bleeding. She tried to clean herself. Mrs. Ribeiro testified that around this time the bus driver (of the Route 19 Mississauga bus) came out of the bus and asked her if she was okay. He gave her some tissues to help her clean herself and asked the woman who had assisted her to take her to the washroom at Shopper's World so that she could clean up properly.

The bus driver's version of what happened to Mrs. Ribeiro after he parked the bus is markedly different from Mrs. Ribeiro's. Mr. Komnenovic testified that the bus he was driving on that day was an expanded 60-foot bus with three separate doors - one in the front, one in the middle and one at the end. He testified that the area around where he parked his bus at Shopper's World Bus Terminal was clear of snow or ice. He testified that after he parked the bus, he released his seat belt and turned himself around in his seat to watch the passengers disembark from all three doors. Mr. Komnenovic testified that he saw three women including Mrs. Ribeiro, disembark from the middle door.

Mr. Komnenovic testified that after Mrs. Ribeiro stepped out of the bus and onto the pavement, she started to run. She fell hitting her face on a patch of snow and ice 15 feet west of the door of the bus from which she exited. Mr. Komnenovic testified that he was not watching Mrs. Ribeiro in particular at the time but she caught his attention when he saw her legs going backwards and her upper body going forwards as she fell on the patch of snow and ice.

Mr. Komnenovic testified that after he observed Mrs. Ribeiro fall, he came out of the bus to help her. He asked her "Why were you running for God's sake?" She told him that she was trying to catch a bus. He said to her "Hell with the bus, if you miss this one, you can catch another. Did you see what you have done with your face because of the bus?" Mrs. Ribeiro did not respond. Mr. Komnenovic testified that he always keeps some tissues in his pocket. He gave Mrs. Ribeiro the tissues. He testified that he asked her twice if he should call an ambulance because he thought that she needed one but Mrs. Ribeiro refused both times. Mr. Komnenovic testified that a young woman had helped Mrs. Ribeiro after she fell. This woman said that she would take Mrs. Ribeiro to the washroom to clean her face. After they left, Mr. Komnenovic testified that he returned to the bus and reported the incident to the dispatcher at Mississauga Transit.

Mr. Komnenovic testified that the dispatcher asked him to complete and submit an Incident Report. Mr. Komnenovic testified that he almost refused to fill out an Incident Report because he felt that the incident had nothing to do with him or his bus. However, he complied with the dispatcher's request, obtained an Incident Report form from the dispatcher that evening and completed it with his daughter's assistance that night. He submitted the completed form with his signature to Mississauga Transit the next day, Saturday February 26, 1994.

Mr. Komnenovic testified that after the incident and before he picked up the passengers for his next run, he measured the distance from the middle door to the patch of snow and ice upon which Mrs. Ribeiro fell. He also measured the size of the patch. It was 9-10 feet long, 6-7 feet wide and 2-3 inches in thickness. He observed that it consisted of more snow than ice. The patch was located on the road and not on the bus platform. Mr. Komnenovic testified that after the incident and before he picked up the passengers for his next run, he also checked the middle and back doors of the Route 19 bus to ensure that they were working properly.

Mrs. Ribeiro testified that when she got to the washroom at Shopper's World, she noticed that her face was covered with blood and mud. After she cleaned herself up, the woman who accompanied her took her to the security office in the mall, because she did not think that Mrs. Ribeiro was ready to go home. Mrs. Ribeiro testified that the people in the security office helped her apply some bandages and suggested that she go to a hospital. Mrs. Ribeiro testified that she did not go to a hospital because she did not speak English. She decided to go home instead.

Mrs. Ribeiro testified that her face was swollen the next day. However, she was not able to see her family doctor that day because it was a Saturday and he did not work on Saturdays. Mrs. Ribeiro went to see her family doctor, Dr. H.M. Jamal, on Monday, February 28, 1994. Dr. Jamal found that Mrs. Ribeiro had a "... swollen knuckle of the left 2nd finger metacarpal joint. She had deep grazes on (the) left side (of her face) and the front of the bridge of the nose and a deep infected graze near the nasion." Dr. Jamal referred Mrs. Ribeiro for x-rays because he thought that she might have broken her nose.⁴ He prescribed antibiotics and asked her to return for follow-up in about 10 days.⁵

Mrs. Ribeiro waited two weeks before she asked her step-daughter, Ms. Isabel Santos, to contact Mississauga Transit on her behalf, to report the incident. Mrs. Ribeiro testified that she did not contact Mississauga Transit herself because she spoke little English. Ms. Santos contacted Mississauga Transit by telephone and reported the incident in early March.⁶ Mississauga Transit in turn reported the incident to its insurance adjusters, Lindsey Morden Claim Services Limited ("Lindsey Morden") on March 8, 1994.⁷ Mr. Arthur Ronald McEwan of Lindsey Morden was assigned to adjust the claim.

Mr. McEwan met with Mrs. Ribeiro at her residence on April 6, 1994. Mr. McEwan testified that he arranged the meeting to find out how the incident happened and the nature and extent of the injuries and the losses Mrs. Ribeiro sustained in the incident. The purpose of the visit was also to explain insurance coverage available to Mrs. Ribeiro and the benefits available to her. Mr. Ribeiro and Ms. Santos were also present at the meeting. Ms. Santos acted as interpreter.

Mr. McEwan testified that during the meeting on April 6, 1994 he did not obtain a detailed written statement from Mrs. Ribeiro because he had determined, based on the information she provided to him, that the injuries she sustained in the incident on February 25, 1994 were very minor in nature. He understood that she had been off work for two weeks following the incident but had returned to full-time work after that and had no further problems except that she was to see a plastic surgeon on April 13, 1994, and might require surgery to deal with the scar on her nose at some point. Before he concluded the meeting on April 6, 1994, Mr. McEwan left Mrs. Ribeiro with a package of forms to be completed and submitted to him. He also asked her to submit any bills for expenses she incurred as a result of the incident.

On April 18, 1994, Mr. McEwan was advised by Ms. Santos that Mrs. Ribeiro's surgery was scheduled for May 9, 1994.⁸

On April 19, 1994, Mr. McEwan was advised by Ms. Maureen Perry of Mississauga Transit that she was getting a report of the incident from the bus driver but his report of the incident was different from that of Mrs. Ribeiro.⁹ After receiving this information, Mr. McEwan telephoned Ms. Santos and informed her of the bus driver's version of the incident and asked her if it was possible to locate the independent witness, i.e., the woman who had assisted Mrs. Ribeiro at the scene of the incident.¹⁰ Ms. Santos advised Mr. McEwan that Mrs. Ribeiro did not know who the woman was or how to contact her.¹¹

Mrs. Ribeiro underwent surgery on her nose on May 9, 1994 at the Toronto Western Hospital.¹²

Four completed Employer's Confirmation of Income Forms were received by Mr. McEwan on May 30, 1994.¹³ The cleaning bill for the coat Mrs. Ribeiro had worn on the day of the incident and the receipt for the replacement of her glasses were received by Mr. McEwan before January 6, 1995.¹⁴ Mr. McEwan testified that shortly after he received the Employer's Confirmation of Income forms, the Lindsey Morden's claim file pertaining to Mrs. Ribeiro went astray and was not found until January 1995.

Mr. McEwan testified that Ms. Santos actively pursued Mrs. Ribeiro's claims and continued to call him regularly after May 30, 1994 and before Mrs. Ribeiro retained solicitors in January 1995.

Subsequently, some time in October 1994, Mr. McEwan attended at Mrs. Ribeiro's home a second time. Mr. McEwan testified that there were two purposes for the visit: to look at the scarring on Mrs. Ribeiro's nose, as he was concerned about a potential threshold claim, and to reconstruct her claim, because his file had gone astray. Mr. Ribeiro and Ms. Santos were also present at the meeting. Mr. McEwan kept no notes of the meeting. Mr. McEwan testified that he terminated the interview with Mrs. Ribeiro quickly because Mrs. Ribeiro, Mr. Ribeiro and Ms. Santos were very hostile at the time. They were upset because they had been expecting Mrs. Ribeiro to be paid and Mrs. Ribeiro had not received any payments. Ms. Santos testified that at the meeting she advised Mr. McEwan that if Mrs. Ribeiro did not receive a cheque in two weeks, she (Mrs. Ribeiro) would retain the services of a solicitor.

On January 3, 1995, Mr. McEwan received a letter from Mrs. Ribeiro's solicitors enclosing an Application for Accident Benefits signed by Mrs. Ribeiro¹⁵ and a handwritten medical report from Dr. Jamal dated February 28, 1994.¹⁶ Sometime in January 1995, he also received a Health Practitioner's Certificate from Dr. Jamal.¹⁷

Mrs. Ribeiro's solicitors were advised by way of letters from Mr. McEwan dated January 13, February 10, and May 5, 1995 and Explanations of Assessment signed by Lynn Toth, an accident benefits examiner at Guarantee, dated January 9, February 2 and May 1, 1995, that Mrs. Ribeiro's claims for statutory accident benefits had been refused because of, inter alia, her failure to submit an application for the benefits to Guarantee within 90 days of receiving the application form.¹⁸

At arbitration, Guarantee also contended that Mrs. Ribeiro was not entitled to statutory accident benefits because she was not involved in an "accident" as this term is defined in section 1 of the Schedule.

2. Findings

a) Was Mrs. Ribeiro involved in an "accident" as defined in section 1 of the Schedule?

The word "accident" is defined in section 1 of the Schedule as follows:

"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;

Both Mrs. Ribeiro and Guarantee agree that if I find that Mrs. Ribeiro fell while alighting from the Route 19 Mississauga bus as she claims, then in accordance with my reasoning in Lynam and Formosa Mutual Insurance Company (January 18, 1996), OIC A-010990, the use and operation of an automobile caused the incident, and she would be eligible for benefits under the Schedule as a result of the injuries she sustained. Mrs. Ribeiro and Guarantee also agree that if I find that Mrs. Ribeiro fell on a patch of ice and snow 15 feet west of the middle door of the bus, as the bus driver, Mr. Komnenovic, claims, then it would have been the patch of ice and snow that caused the incident and not the use or operation of an automobile. In these circumstances Mrs. Ribeiro would not be eligible for benefits under the Schedule. Therefore, in determining whether Mrs. Ribeiro was involved in an "accident" as defined in section 1 of the Schedule, I must consider whose testimony is more worthy of belief, Mrs. Ribeiro's or Mr. Komnenovic's.

After reviewing and weighing all of the evidence, I am not satisfied that either Mrs. Ribeiro or Mr. Komnenovic gave me a totally accurate account of how and where Mrs. Ribeiro fell on February 25, 1994.

Evidence was tendered at the hearing which showed that Mrs. Ribeiro previously made statements about how the incident in which she was injured on February 25, 1994 occurred, which were inconsistent with her testimony at the hearing. At the hearing Mrs. Ribeiro testified that her left foot was on the snow and ice on the ground and the right foot was on the bus when she fell. She made no mention of falling while attempting to reach a curb or sidewalk. However, the descriptions of the cause of the incident that she gave to Ms. Santos shortly following the incident were different. One description is set out in The Mississauga Transit Passenger Injury/Property Damage Report. This Report states that Ms. Santos, who reported Mrs. Ribeiro's fall to Mississauga Transit on Mrs. Ribeiro's behalf in early March 1994, gave the following description of the cause: "(f)ell off the bus, as (he) O.P. did not pull near enough to the curb. Missed the curb & fell."¹⁹

Mrs. Ribeiro was not present when Ms. Santos reported the incident to Mississauga Transit. However, Ms. Santos testified that the description of the cause of the fall that is set out in the Mississauga Transit Passenger Injury/Property Damage Report is consistent with what she told the woman who took the report and the description was based on information provided to her by Mrs. Ribeiro.

Further, in a telephone conversation with Ms. Santos, Mr. McEwan noted that Ms. Santos gave the following description of the incident: "Stopped further from stop at Shoppers World foot between bus and sidewalk fell forward and hit nose ..." ²⁰

These discrepancies between Mrs. Ribeiro's prior statements and her testimony were not explained by her at the hearing.

While Mrs. Ribeiro's testimony in regard to her work was not directly relevant to the issue of whether she was involved in an "accident" as defined under the Schedule, it also caused me to question her credibility. Her evidence in regard to her work was confusing and inconsistent. For example, she testified that prior to February 25, 1994 she cleaned four houses one week and five houses the next. Initially, she testified that she would clean the same house only twice a month. Subsequently, she testified that she cleaned one of the houses six times a month. This is inconsistent with what was reported in the Employer's Confirmation of Income forms signed by the women to whom Mrs. Ribeiro provided cleaning services. These forms indicate that Mrs. Ribeiro cleaned each of the four houses once every week (four times a month).²¹

Mrs. Ribeiro's evidence in regard to when she returned to work following the accident was also confusing and inconsistent. At the hearing she testified that she was off work for a significant period of time in 1994 as a result of the injuries she sustained in the incident. She testified that she did not think that she was working at the time of her meeting with Mr. McEwan on April 6, 1994. However, Mr. McEwan testified that Mrs. Ribeiro told him at the meeting on April 6, 1994 that she had been off work for two weeks as a result of the incident but had since returned to work and was continuing to work full-time. Mr. McEwan's testimony is supported by the Employer's Confirmation of Income forms which indicate that she returned to her daily activities, including work, on March 14, 1994 and that she was working in April and May 1994. Dr. Jamal's Health Practitioner's Certificate which was submitted to Guarantee in January 1995, based on his visits with Mrs. Ribeiro during the period February 1994 to January 1995, indicates that she continued to work for the balance of 1994.²²

While I had difficulty fully accepting Mrs. Ribeiro's account of how and where she fell on February 25, 1994, I had even more difficulty accepting Mr. Komnenovic's testimony on this issue. I found parts of Mr. Komnenovic's testimony implausible or difficult to reconcile with the rest of the evidence tendered at the hearing. The following are examples:

• Mr. Komnenovic testified that Mrs. Ribeiro fell on a patch of snow and ice 15 feet west of the door of the bus from which she exited (the middle door). However, why would she be running in this direction if the Brampton 1B bus which she was intending to catch was directly ahead of the Mississauga Route 19 bus to the south?

• Mr. Komnenovic testified that after the incident and before he picked up the passengers for his next run, he checked the middle and end doors of the bus to ensure that they were working properly. Why would Mr. Komnenovic be checking these doors if the incident had nothing to do with the bus, as he claims? Why would Mr. Komnenovic be checking these doors if Mrs. Ribeiro fell 15 feet from the bus, as he claims?

• Mr. Komnenovic testified that immediately following the incident he measured the distance from the middle door to the patch of ice and snow. He also measured the size of the patch. If the incident had nothing to do with him, why did Mr. Komnenovic take the time to take these measurements? Why would a purportedly innocent witness to an incident be so defensive and careful?

• Mr. Komnenovic testified that he obtained an Incident Report form from the dispatcher the evening of the incident and completed it with his daughter's assistance that night. He submitted the completed form with his signature to Mississauga Transit the next day, Saturday, February 26, 1994. However, if this was the case why did it take Mississauga Transit so long to locate his report? The evidence indicates that Ms. Perry of Mississauga Transit had difficulty locating Mr. Komnenovic's report and had still not obtained it by April 19, 1994.²³

After considering all of the evidence, I am not persuaded that Mrs. Ribeiro fell on a patch of ice and snow 15 feet west of the middle door of the bus, as Mr. Komnenovic claims. Notwith-standing the difficulties I have with Mrs. Ribeiro's evidence, I find it more likely that she fell while getting off the bus and that the use and operation of an automobile caused the incident. Accordingly, she is eligible for benefits under the Schedule.

b) Is Mrs. Ribeiro precluded from claiming statutory accident benefits because she failed to submit an application for the benefits to Guarantee within 90 days of receiving the application form pursuant to section 59(3) of the Schedule?

Section 59 of the Schedule provides as follows:

59. (1) A person who wants to apply for benefits under this Regulation shall notify the insurer within thirty days after the circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter.

(2) The insurer shall promptly provide the person with,

(a) the appropriate application forms;

(b) a written explanation of the benefits available under this Regulation; and

c) written information to assist the person in applying for benefits, including information to assist the person in making any possible elections.

(3) The person shall submit an application for benefits to the insurer within ninety days of receiving the application forms.

(4) A failure to comply with a time limit set out in subsection (1) or (3) does not disentitle a person to benefits if the person has a reasonable excuse. (Emphasis added)

Section 94 of the Schedule states that the application forms referred to in section 59(2)(a) shall be in a form approved by the Commissioner of Insurance.

Section 71.1 of the Schedule sets out the consequence of the person's failure to comply with section 59. It provides as follows: "No insured person shall commence a mediation proceeding under section 280 of the Insurance Act unless he or she, (a) has complied with section 59;..."

There is some question in respect of whether Mrs. Ribeiro was provided with "the appropriate application forms" by Guarantee.

Mr. McEwan testified that when he attended at Mrs. Ribeiro's residence on April 6, 1994, he gave her an accident benefits package. The package consisted of three forms: 1) Application for Accident Benefits; 2) Medical Certificate; and 3) Employer's Confirmation of Income. Mr. McEwan testified that he gave Mrs. Ribeiro three additional Employer's Confirmation of Income forms because Mrs. Ribeiro advised that she was working for four women. Mr. McEwan testified that he explained all three forms to Mrs. Ribeiro and told her that the forms should be returned to him within 60 days.²⁴

Mrs. Ribeiro confirmed that before Mr. McEwan left her home on April 6, 1994, he gave her a package of forms but was not sure which forms were included.

In her testimony, Ms. Santos also could not say if the package of forms which Mr. McEwan left with Mrs. Ribeiro at the meeting included an Application for Accident Benefits.

I accept Mr. McEwan's testimony that the forms that he gave Mrs. Ribeiro on April 6, 1994 included an Application for Accident Benefits. Mr. McEwan's testimony is confirmed by notes he made the day following the meeting.²⁵ Further, a telephone message left by Ms. Santos for Mr. McEwan with someone in Mr. McEwan's office on April 26, 1994 indicates that Mrs. Ribeiro received an Application for Accident Benefits before that date. The message to Mr. McEwan states that Ms. Santos telephoned. Message: "fell at door next pass. almost fell on her - will put it on the AB Application."²⁶

Having found that Guarantee provided Mrs. Ribeiro with the appropriate application form on April 6, 1994, I must determine whether Mrs. Ribeiro submitted an application for the benefits within 90 days of receiving it, pursuant to section 59(3) of the Schedule. Guarantee submits that the application form was submitted and received by Mr. McEwan and Guarantee in January 1995, well after 90 days of Mrs. Ribeiro receiving the forms. Mrs. Ribeiro submits that all the forms that she received were completed and forwarded to Mr. McEwan within 90 days of her receiving the forms.

I believe that Mrs. Ribeiro is not required to establish that the application for accident benefits was actually received by Guarantee or Mr. McEwan. However, it is my opinion that Mrs. Ribeiro must prove that she forwarded the application for accident benefits to Guarantee within 90 days of receiving it. My opinion is based on a reading of section 59(3) of the Schedule and she is uniquely situated to prove this fact.

Ms. Santos testified that after ensuring that all the forms that Mr. McEwan left with Mrs. Ribeiro were completed, she put everything together and sent everything to Mr. McEwan by mail. She indicated that if the application for accident benefits had been included in the package of forms, it would have been sent to Mr. McEwan at the same time as the completed Employer's Confirmation of Income forms. As noted earlier, the completed Employer's Confirmation of Income forms were received by Lindsey Morden on May 30, 1994, within 90 days of April 6, 1994.

It is difficult to find based on Ms. Santos' testimony alone, that the Application for Accident Benefits was submitted by Mrs. Ribeiro to Mr. McEwan within 90 days of her receiving it. Neither she nor Mrs. Ribeiro acknowledge that Mrs. Ribeiro received the Application for Accident Benefits from Mr. McEwan in the first place. Therefore, they cannot say unequivocally that the Application was mailed with the completed Employer's Confirmation of Income forms. Thus I find that Mrs. Ribeiro did not comply with section 59(3) of the Schedule.

While I find that Mrs. Ribeiro did not comply with section 59(3) of the Schedule, I find that Guarantee by the conduct of its agent, Mr. McEwan, is estopped from asserting non-compliance with section 59(3) of the Schedule as a defence. In Offeh and Allstate Insurance Company of Canada (October 25, 1994), OIC A-006494, confirmed on appeal July 3, 1996, I defined "estoppel" as follows:

...where one person ('the representor') has made a representation to another person ('the representee') in words, or by acts and conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper place, objects thereto.²⁷

In this case, it was clear from Mr. McEwan's testimony that because early on in Mrs. Ribeiro's case he had formed the impression that Mrs. Ribeiro's injuries were minor and her claims were small, it didn't make any difference to him whether or not she complied with the time limit for submitting her Application for Accident Benefits. In his Report to Guarantee of January 6, 1995, he noted that an Application for Accident Benefits had been received by his office from Mrs. Ribeiro's solicitors on January 3, 1995 but said nothing about the delay and its consequences. On the contrary, he requisitioned a cheque in the amount of $323.08 for payment of one week of disability ($221.31), cleaning bill for her coat ($11.77) and replacement for her glasses ($90.00), in the hope that once the cheque was issued there would be no further claims.²⁸

Mr. McEwan may have informed Mrs. Ribeiro that there was a time limit for the submission of the accident benefits forms that he gave her. However, the evidence, including Mr. McEwan's own testimony, indicates, that Ms. Santos actively pursued Mrs. Ribeiro's claims in the 90 days following Mrs. Ribeiro's receipt of the Application of Accident Benefit form and made regular phone calls to Mr. McEwan inquiring about the status of Mrs. Ribeiro's claims. When Mr. McEwan responded to Ms. Santos' phone calls he represented to Mrs. Ribeiro through Ms. Santos, on a number of occasions, that everything was being taken care of ²⁹ and that Mrs. Rebeiro's claims would be paid.³⁰ Mr. McEwan did not inform Mrs. Ribeiro that the Application for Accident Benefits had not been received or identify any deficiencies in the information that had been submitted to him from her. Based on what she was told through Ms. Santos, Mrs. Ribeiro did not take any steps to remedy the deficiencies, to her detriment.

I find, in these circumstances, that Mrs. Ribeiro is not precluded from claiming statutory accident benefits because she failed to submit an application for the benefits within 90 days of receiving the application form.

Expenses:

The issue of expenses was not addressed by the parties at the hearing of these preliminary issues.

Accordingly, the issue of expenses will be determined in the arbitration hearing.

Order:

1. Mrs. Ribeiro was involved in an "accident" as defined in section 1 of the Schedule. Accordingly, she is eligible for benefits under the Schedule.

2. Mrs. Ribeiro is not precluded from claiming statutory accident benefits because she failed to submit an application for the benefits within 90 days of receiving the application forms.

October 24, 1996

Shemin Manji Arbitrator

Date

APPENDIX A - RECORD

Exhibits:

Exhibit 1 Applicant's Document Brief

Exhibit 2 Pre-Arbitration Hearing Brief

Exhibit 3 Telephone message from Steve Cordery to Isabel Santos dated October 11, 1994

Exhibit 4 Health Practitioner's Certificate of Dr. Jamal dated January 29, 1996

Exhibit 5 Map of Bus Terminal - Shopper's World (Brampton)

Exhibit 6 Notice of Claim to Insurance Adjusters taken on March 8, 1994

Exhibit 7 Report of Lindsey Morden Claims Services Limited dated April 28, 1994

Exhibit 8 Report of Lindsey Morden Claims Services Limited dated May 30, 1994

Exhibit 9 Report of Lindsey Morden Claims Services Limited dated January 6, 1995

Exhibit 10 Initial Contact Report of Ron McEwan dated April 6, 1994

Other documents before the Arbitration, but not marked as exhibits:

Report of Mediator dated August 23, 1995

Application for Arbitration (undated) received by the OIC on September 27, 1995

Response to an Application for Arbitration dated October 12, 1995

Pre-hearing letter dated January 23, 1996

APPENDIX B - AUTHORITIES

OIC DECISIONS:

1. Lynam and Formosa Mutual Insurance Company (January 18, 1996), OIC A-010990

2. Oliveira and Zurich Insurance Company and The Personal Insurance Company of Canada (August 10, 1993), OIC A-002691

3. Oliveira and Zurich Insurance Company and The Personal Insurance Company of Canada (March 21, 1994), OIC Appeal P-002691

4. Tran and Pilot Insurance Company (February 23, 1994), OIC A-005207

COURT DECISIONS:

1. Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] S.C.J. No. 74

2. Law, Union & Rock Insurance Company Limited v. Moore's Taxi Limited, 1959 CanLII 81 (SCC), [1960] S.C.R. 80 (S.C.C.)

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2This is consistent with Mrs. Ribeiro's evidence - see Application for Accident Benefits (undated) - Exhibit 2, Tab 1
3. 3Exhibit 5 - Map of Bus Terminal - Shopper's World (Brampton) - the markings on the map are those of Mr. Komnenovic identifying where he parked the Route 19 Mississauga Transit bus on February 25, 1994 in relation to the Route 1B Brampton bus and the platform/island.
4. 4The x-rays revealed no fracture.
5. 5Report of Dr. Jamal dated February 28, 1994, Exhibit 1, Tab 2
6. 6Mississauga Transit Passenger Injury/Property Damage Report dated March 1994 - Exhibit 2, Tab 6
7. 7Notice of Claim to Insurance Adjusters taken on March 8, 1994 - Exhibit 6
8. 8Telephone Message for Mr. McEwan from Ms. Santos April 18, 1994 - Exhibit 2, Tab 3
9. 9Handwritten note of Mr. McEwan dated April 19, 1994 - Exhibit 2, Tab 3
10. 10Handwritten note of Mr. McEwan dated April 25, 1994, Exhibit 2, Tab 3
11. 11Telephone message to Mr. McEwan from Ms. Santos dated April 25, 1994 - Exhibit 2, Tab 3
12. 12Handwritten notes of Mr. McEwan dated May 13, 1994 - Exhibit 2, Tab 3 and Report of Mr. McEwan dated January 6, 1995 to Guarantee - Exhibit 9
13. 13Exhibit 2, Tab 2
14. 14Report of Mr. McEwan dated January 6, 1995 to Guarantee - Exhibit 9
15. 15The Application form was not dated.
16. 16Report of Mr. McEwan dated January 6, 1995 to Guarantee - Exhibit 9
17. 17Health Practitioner's Certificate (undated) from Dr. Jamal - Exhibit 1, Tab 3
18. 18Exhibit 1, Tab 4
19. 19Mississauga Transit Passenger Injury/Property Damage Report Form - March 8, 1995 - Exhibit 2, Tab 6
20. 20Handwritten notes of Mr. McEwan - Exhibit 2, Tab 3. This particular note is not dated but was made prior to March 16, 1994 and following a telephone discussion with Ms. Santos setting up an appointment to meet with Mrs. Ribeiro.
21. 21Employer's Confirmation of Income dated May 21, 1994, April 26, 1994, April 28, 1994 and April 13, 1994 - Exhibit 2, Tab 2
22. 22Health Practitioner's Certificate (undated) - Exhibit 1, Tab 3 (received January 27, 1995)
23. 23Handwritten notes of Mr. McEwan - telephone conversation with Ms. Perry, April 19, 1994 - Exhibit 2, Tab 3
24. 24At the hearing, Mr. McEwan acknowledged that he misinformed Mrs. Ribeiro. An applicant is required to submit an application for benefits within 90 days, not 60 days, of receiving them.
25. 25Handwritten notes of Mr. McEwan dated April 7, 1994 - Exhibit 2, Tab 3
26. 26Telephone message to Ron (McEwan) dated April 26/94 from Ms. Santos - Exhibit 2, Tab 3
27. 27Spencer Bower on the Law Relating to Estoppel by Representation, 3rd ed. by Turner (London, Butterworths, 1977), p. 9 quoted in Pannenbecker v. Dominion of Canada General Insurance Company (1977), 1977 CanLII 667 (AB SCTD), 76 D.L.R. (3d) 132 at pp. 139-40 (Alta. S.C.T.D.), rev. on other grounds 1978 CanLII 1952 (AB SCAD), 93 D.L.R. (3d) 450 (S.C. App. Div.)
28. 28Report of Mr. McEwan dated January 6, 1995 - Exhibit 9
29. 29Testimony of Mr. McEwan and Ms. Santos and handwritten notes of Mr. McEwan dated September 21, 1994 - Exhibit 2, Tab 3
30. 30Testimony of Mr. McEwan and Ms. Santos