Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 35
Appeal: P-002213
OFFICE OF THE DIRECTOR OF ARBITRATIONS
Prudential of America General Insurance Company (Canada) Appellant
and
Emmanuel Ntiri Respondent
Before: Elisabeth Sachs
Counsel: Stephen Malach, QC (for the Appellant) David S. Wilson (for the Respondent)
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 April 19, 1993 is confirmed.
The respondent, Emmanuel Ntiri, is entitled to his reasonable expenses of the appeal.
March 7, 1996
Elisabeth Sachs Director
REASONS FOR DECISION
I. BACKGROUND
Emmanuel Ntiri was injured in a motor vehicle accident on May 11, 1991. He received weekly income benefits from the appellant, Prudential (“Prudential”) under section 12 of O. Reg. 672, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 (the Schedule) at the maximum level of $600 until February 4, 1992. The payments were then reduced in two stages by Prudential on the basis of insufficient proof by Mr. Ntiri of his claimed income from two jobs and an allegation that he had earnings after the accident.
Mr. Ntiri was successful in disputing the reduction of his benefits after a five day arbitral hearing in which ten witnesses testified and twenty four exhibits were filed. No transcript of the oral evidence is available, making it difficult to determine on appeal what conflicts may have existed in the oral evidence unless specifically referred to in the arbitration decision.
In addition to income from full time employment as a truck driver, the arbitrator found Mr. Ntiri earned $340 weekly delivering newspapers before the accident, and thus was entitled to a further $272 in benefits per week. The arbitrator also determined Mr. Ntiri did not resume this work after the accident. On a collateral benefits issue raised by Prudential, the arbitrator held there was insufficient evidence to determine whether a disability insurance policy, said to be available to newspaper employees, was in fact available to Mr. Ntiri .
II. ISSUE AND SUBMISSIONS
A. Appellant’s Submissions
Prudential seeks a rehearing on whether Mr. Ntiri is entitled to weekly income benefits in respect of the newspaper job. It alleges the arbitrator misdirected himself as to the fundamental issue in dispute, by presuming the parties agreed that Mr. Ntiri actually worked delivering papers before the accident, and in characterizing the main issue as being about the amount earned from this endeavour. Prudential disputes Mr. Ntiri delivered papers before the accident and says the evidence, at most, shows only the purchase of papers or a route in Mr. Ntiri’s name. It argues a rehearing is required because the wrong issue, going to the “heart of the matter”, was addressed. Consequently, the evidence was not properly evaluated or put into context by the arbitrator - the whole integrity of the decision has been compromised. This, it is submitted, is one of those clear, unequivocal cases where a rehearing is required.
Alternatively, Prudential argues that if Mr. Ntiri is found to have been employed in delivering newspapers, then the evidence shows he took part in “working the route” after the accident, and weekly income benefits ought to be reduced accordingly.
Finally, Prudential argues because it discovered a disability benefits policy for certain classes of newspaper employees, and the document was introduced into evidence, the burden of proof shifts to Mr. Ntiri to show why his weekly income benefits should not be reduced by the amount collateral benefits available.
B. Respondent’s Submissions
Mr. Ntiri takes the view the insurer cannot have it both ways. Either there was pre-accident employment in which he was engaged for a disputed amount of remuneration, or there was not. Labelling the insurer’s position “bizarre”, Mr. Ntiri argues that while there was no formal agreement that he worked delivering papers pre-accident, the dispute always centred on what his total earnings were.
The reduction in his benefits stemmed from two allegations made by Prudential; firstly that he did not earn as much from newspaper delivery as he claimed and secondly, that he went back to this work after the accident but not his full time occupation. A further reduction was claimed when the possibility of a disability policy was discovered. Mr. Ntiri admits he did not show his delivery earnings on any personal income tax returns, nor could he point to specific bank deposits in relation to that work, but argues his evidence on the amounts earned, buttressed by the oral testimony of the paper’s district manager and submitted invoices, would have been irrelevant, and disregarded if the sole issue was whether he was working before the accident. That evidence could only be relevant to whether he had a new job, resumed working at a pre- existing job after the accident, or to prove what he earned prior to the accident. While not explicitly stated as a distinct finding, Mr. Ntiri argues the arbitrator obviously accepted his testimony about delivering papers since March, 1989, the hours worked, and the number of papers delivered. Thus, it is submitted, Prudential is really arguing facts anew, and wants the Director on appeal to substitute a different view of the evidence, notwithstanding a lack of transcript or other verification of the oral testimony heard by the arbitrator.
Further, Mr. Ntiri submits the arbitrator need not refer to all the witnesses, all the documents and all possible conflicts in the evidence. It is sufficient if he sets out what is relied on for the conclusions reached. For the Director to now go back and reevaluate this evidence is “second guessing ” and not part of the appellate function. Citing the Calogero1 decision, Mr. Ntiri says the arbitrator’s findings can only be overturned if they have insufficient or no evidence to support them. While conceding the arbitrator was wrong in stating “it was agreed”that Mr. Ntiri worked delivering papers pre-accident, it is not a presumption necessary to the arbitrator’s ultimate decision, which included acceptance of independent oral and documentary evidence and finding Mr. Ntiri and his witnesses credible.
III. ANALYSIS AND FINDINGS
The parties agree the arbitrator erred in presuming any agreement between them that Mr. Ntiri’s pre-accident newspaper activities constituted remunerative “employment”. Prudential says this error is fatal to the decision. Mr. Ntiri contends it is a minor matter in the overall context of the decision and the evidence led over five days of hearing.
After reviewing the reasons for decision, I am of the view the arbitrator did not rely strongly, if at all, on the purported agreement. In particular, the arbitrator refers to Mr. Ntiri’s testifying as to his continuous delivering of papers from March, 1989 “without interruption until the accident on May 11, 1991.” (p. 5, Decision) I conclude, given his analysis thereafter, the arbitrator found that testimony credible and accepted it. As well, referring to the evidence of the district sales manager, the arbitrator states he was “a reliable and credible witness”, who stated Mr. Ntiri was a delivery person since at least March, 1990 and “explained many details of the Applicant’s route deliveries...” (p. 6, Decision). Having made that determination, the arbitrator went on to consider the other aspects, namely how much did Mr. Ntiri earn, and did he “return” to the delivery work after the accident. To that end, Prudential submitted surveillance evidence which ultimately was not accepted by the arbitrator. It is clear, given the submissions of the parties and the evidence they called at the hearing, these were the main issues. The lack of agreement on quantum, not any serious disagreement about whether Mr. Ntiri had and worked a paper route, led to the dispute between the parties.
As for the arbitrator’s conclusions on the appropriate earnings level (income less ceasing expenses analysis) of Mr. Ntiri’s delivery work, and whether he resumed this work after the accident, I see nothing in the documentation or the characterization of the evidence in the decision that would compel me to overturn them. The arbitrator directly accepts independent evidence on earnings, and rejects Prudential’s surveillance and eye-witness evidence on identity.
Prudential cites what it says are numerous factual inconsistencies and illogical conclusions given the oral testimony. Mr. Ntiri cannot concede, or recall with precision what was or was not said at the hearing. On appeal, it is the record I must look to, the adequacy of which is hampered by the lack of a transcript. The record, coupled with the reasons for decision, disclose sufficient evidence to support the arbitrator’s findings, and it is not for me to ascribe a different interpretation to that evidence.
Prudential also seeks what amounts to a variation of the arbitrator’s order, by asking I find it is entitled to deduct collateral disability insurance benefits allegedly available to Mr. Ntiri through his employment with the newspaper. The arbitrator stated that although an insurance policy was filed (Exhibit 11), no witness testified about coverage or level of benefits based on classification, nor was any other evidence proffered about it. I am now being asked to substitute my own view, in the absence of any new evidence, that Mr. Ntiri was entitled to $25 per week in disability benefits. I am in no better position that the arbitrator in determining what benefits, and in what amount, might have been available, notwithstanding a review of the exhibit. The insurer is certainly entitled to a deduction from weekly income benefits otherwise payable if there are payments for loss of income or benefits under an “income continuation benefit plan”, whether applied for or not, available to Mr. Ntiri ( see s. 12(4)(b) of the Schedule). Mr. Ntiri is under a positive obligation to answer the insurer’s questions in that regard, quite independent of an arbitrator making specific findings about it.
No matter on whom the onus rests with respect to proof of collateral benefits, asking for an order on appeal to vary the benefit amount awarded requires tendering of cogent evidence which was not available at the hearing that, if believed, could reasonably be expected to affect the resultant finding of quantum. As it stands, I have no basis on which to vary the arbitrator’s order.
However, I remain seised of this issue. Either party may bring a motion for an order if further information comes to light and the parties cannot agree as to the effect, if any, the policy has on the weekly income benefits.
IV EXPENSES
Mr. Ntiri is the successful party in this appeal, and is entitled to his reasonable expenses. If the parties cannot agree, expenses may be assessed by filing written submissions with the Registrar.
March 7, 1996
Elisabeth Sachs Director