Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 68

Appeal P-003703

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MARIA JAMBOR

Appellant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Respondent

Before:

Susan Naylor, Director's Delegate

Representatives:

Maria Jambor (in person)

Mavis Haws, Accident Benefit Unit Manager (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 August 14, 1995, is confirmed.
Ms. Jambor is not entitled to her appeal expenses.

May 1, 1996

Susan Naylor

Director's Delegate

Date

REASONS FOR DECISION

I. THE NATURE OF THE APPEAL

Maria Jambor was injured in an automobile accident on February 20, 1992. She received weekly income benefits at the rate of $185.60 under the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, Ontario Regulation 672, R.R.O. 1990, (the Schedule). Her benefits were terminated on March 3, 1995. Dominion of Canada General Insurance Company (Dominion) calculated Ms. Jambor's benefits based on her earnings from a part-time factory job, where she worked for the six weeks before the accident. Ms. Jambor claimed that she was also self-employed at the time of the accident, and that she was entitled to a higher rate of benefits because of this work.

The arbitrator held that Dominion's calculations were correct and that Ms. Jambor was only entitled to $185.60 a week. Ms. Jambor disagreed with this result and appealed the arbitrator's order.

The appeal proceeded on the basis of the arbitration record, the transcript of evidence given at the hearing and the written submissions of the parties. Ms. Jambor complained that the transcript did not accurately record her testimony and that mistakes were made because the reporter did not understand her accent. She pointed out that the transcript referred to her "head" instead of her "health" and that it confused the words "did" and "didn't". However, Ms. Jambor did not point to any mistakes affecting the substance of her testimony about her income and I accept that the transcript fairly records her testimony in this regard.

II. ANALYSIS

The facts, as found by the arbitrator, are relatively straightforward. Ms. Jambor, who had recently immigrated to Canada from Hungary, decided to start a street vending business selling fruit. She was in the process of getting the necessary municipal licenses and permits when the accident occurred, ending her plans.

Ms. Jambor obtained a vendor's permit from the Retail Sales Tax Branch of the Ministry of Revenue, and a business license and vehicle sticker from the Metropolitan Licensing Commission. These allowed her to sell fruit from a push cart. However, she did not realize that she needed a separate vending zone permit from the City of Toronto to operate her cart from a specific site. She started selling from the cart but was fined by the police in September 1991, for selling without a City permit. According to the record, Ms. Jambor continued to sell fruit without the permit, but was forced to move around to avoid the police. Ms. Jambor applied for the permit and shortly before the accident, submitted a non-refundable processing fee to have the location of her choice reviewed. At the time of the accident on February 20, 1992, she had not yet received a response to her application. In July 1992, she was told that her application had been approved subject to payment of the permit fee and satisfaction of insurance requirements. Unfortunately, Ms. Jambor was unable to take up the permit because of her injuries, and it was ultimately cancelled.

The arbitrator accepted that Ms. Jambor operated her fruit selling business in September and October, 1991, but could not determine whether she sold fruit at any other time. According to the arbitrator's reasons, supported by the record, Ms. Jambor could not specify whether she earned any income from her activities. Her 1991 notice of assessment reported a total income of $1,728, but Ms. Jambor was unclear as to the source of this income. Her 1992 notice of assessment reported only her part-time factory work. Ms Jambor did not produce any other documentation that would assist in determining her earnings from self-employment. Consequently, the arbitrator did not include any other income in calculating Ms. Jambor's benefits.

Ms. Jambor attached a number of documents to her Notice of Appeal. For the most part, these were documents marked as exhibits at the arbitration hearing. Three documents were new. One was a memorandum, dated October 29, 1991 announcing the introduction of a new access card system for entering the Ontario Food Terminal building. Buyers were given a deadline of January 31, 1992 to pay for and pick up their cards. The second was a receipt for $200, dated January 28, 1992, which showed that Ms. Jambor had paid for her access card within the requisite time. Copies of parking receipts for charges incurred in September and October, 1991 were also included.

Ms. Jambor claimed that she wanted to introduce the documents in response to the evidence Dominion presented at the arbitration. She argued that she was precluded from doing so, because the arbitration finished earlier than expected. Ms. Jambor claimed that she had not seen the exhibits referred to by Dominion at the hearing, and was "totally unprepared for them".

The allegation of surprise is difficult to understand, since most of the documents marked as exhibits came from Ms. Jambor herself. It is agreed that the arbitrator concluded the hearing in one day rather than the two originally scheduled, although the transcript does not indicate that Ms. Jambor raised any objection to this. But even if I allow Ms. Jambor's new documents, they do not materially assist her. The arbitrator accepted that Ms. Jambor was carrying on business in the months she incurred the parking charges. The issue is how much, if anything, she earned. Similarly, the documents relating to Ms. Jambor's access card do not assist with this inquiry.

III. CONCLUSION

In essence, Ms. Jambor's claim is not based on the income she actually earned from selling fruit before the accident, but on the income she expected to earn once all the permits were in place. The arbitration record supports the arbitrator's description of Ms. Jambor as a "very enterprising, determined and intelligent person". She has been seriously affected by her inability to continue with her business enterprise or to support herself independently on the money she received from Dominion. There is no question that her appeal is sincere. However, the Schedule sets out the benefits that are payable in the event of an automobile accident. Claims for lost business opportunities or for future loss of income are not benefits that are available under the Schedule, no matter how meritorious they may be.

The formula for calculating weekly income benefits is set out in section 12(7) of the Schedule. Generally speaking, the determination is retrospective. It looks back at an applicant's actual income from employment or self-employment before the accident intervened, rather than forward to what might have happened if the accident had not occurred.

Benefits are based on an applicant's average gross weekly income from employment or self-employment for either the four, or the fifty-two weeks before the accident, or on a deemed minimum income of $232, whichever is more favourable to him or her.¹ The arbitrator held that Ms. Jambor's actual income from employment in the four and the fifty two weeks before the accident was less than $232 a week. Therefore, Ms. Jambor's average gross income was deemed to be the higher amount, entitling her to a weekly income benefit of $185.60. The arbitrator's findings were amply justified by the evidence.

An exception to the retrospective calculation is contained in section 12(7) 2. Someone who has an offer of employment made before the accident, subject to certain conditions, may calculate his or her benefits based on the gross weekly income payable under the contract of employment. For the reasons set out in the arbitrator's decision, I agree that Ms. Jambor's circumstances do not fall within this provision. Ms. Jambor's appeal is therefore dismissed.

Ms. Jambor did not ask for her appeal expenses. It is not clear to me what expenses she would have incurred as an unrepresented party, beyond the filing fee. While Ms. Jambor's appeal was sincere, the only real ground she advanced was that she disagreed with the result at arbitration. Parties generally have been denied their expenses in such circumstances. There is no reason to adopt a different view in Ms. Jambor's case.