minicounsel

Neutral Citation: 1997 ONICDRG 185

OIC A96-000272

BETWEEN:

GURNEK SINGH

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

The Applicant, Gurnek Singh, was involved in a motor vehicle accident on July 23, 1994. He applied for weekly income replacement benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.[1] Dominion refused to pay any benefits. The parties were unable to resolve their disputes through mediation, and Mr. Singh applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act").

Dominion argues that Mr. Singh is not entitled to statutory accident benefits because he failed to notify Dominion of his intention to apply for benefits within thirty days after the circumstances arose that gave rise to his entitlement to benefits, in contravention of subsection 59(1) of the Schedule. Mr. Singh disagrees.

The issue in this hearing is:

Is Mr. Singh disentitled to statutory accident benefits by reason of his failure to comply with the notice requirements in subsection 59(1) of the Schedule?

Mr. Singh also claims interest on any amounts owing and his expenses incurred in the hearing.

Mr. Singh is not entitled to statutory accident benefits.
Mr. Singh is entitled to his expenses incurred in the hearing.

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on August 19, 1996, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant:

Gurnek Singh

Mr. Singh's

Brent Vickar

Representative:

Barrister and Solicitor

Dominion's

Jacqueline Wall

Representative:

Barrister and Solicitor

Witnesses:

Mr. Gurnek Singh

Mr. Baljinder Badesha

Mr. Robert Gow

Ms. Sally Nelly

Ms. Suzanne Young

The proceedings were recorded by Katherine McMenemy from the offices of Alfred C. Devenport, Official Examiner.

Mr. Singh's testimony was given through an interpreter of Punjabi and English, Ken Mann.

A list of exhibits and other documents on the record is attached as Appendix A.

Reasons for Decision:

I issued a brief decision by way of letter on September 19, 1996, with reasons to follow. These are my reasons:

The Law:

Subsection 59(1) of the Schedule sets out the time limit within which a person must give the insurer notice of his or her intention to apply for benefits under the Schedule:

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. Subsection 59(4) of the Schedule provides for this time limit to be extended in certain circumstances:

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

Section 71.1 of the Schedule sets out the consequence of a person's failure to comply with section 59:

71.1 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;

Subsection 281(2) of the Act states that no person may refer issues in dispute to an arbitrator unless mediation was sought and failed. Therefore, a person who is precluded from commencing a mediation proceeding is also precluded from referring the matter to arbitration.

Evidence and Findings:

Mr. Singh was born in India. He came to Canada in 1989. He has lived in Toronto since that time. Mr. Singh operates an auto body business known as Brampton Auto Collision, which specializes in accident vehicle repair. He started this business in early 1991.

Mr. Singh was involved in a motor vehicle accident on July 23, 1994. Mr. Singh had insurance on his personal vehicle through Dominion. At the time of the accident Mr. Singh was a front passenger in another vehicle. The driver of the vehicle in which he was a passenger rear-ended a vehicle stopped at an intersection.

Mr. Singh testified that at the time of the impact he hit his head on the windshield, cracking the windshield. He stated that he suffered injuries to his head, neck and lower back in the accident.

There is conflicting evidence as to when, following the accident, Mr. Singh first reported the accident and his intent to apply for statutory accident benefits to Dominion. Dominion submits that this did not occur until October 18, 1994, some 87 days following the accident. Mr. Singh submits that he reported his claim within 30 days of the accident.

Mr. Singh testified that he first attempted to call his insurance broker, Mr. Dribget Singh Sodhi, at North York Broker Insurance Brokers Ltd., a week after the accident. He was advised by someone called Judy or Julie that Mr. Sodhi was not in the office. Mr. Singh testified that he speaks and understands some English but is more comfortable speaking Punjabi. Mr. Sodhi speaks Punjabi. Mr. Singh asked the woman who answered the phone, and only spoke English, to have Mr. Sodhi call him because he (Mr. Singh) had been involved in a motor vehicle accident. Mr. Singh gave the woman his home telephone number. Mr. Singh testified that the woman told him that Mr. Sodhi would be calling the office at mid-day and that when he called, she would give him Mr. Singh's message.

Mr. Singh testified that because he did not receive a call from Mr. Sodhi that same day, he called Mr. Sodhi's office again the next day. He testified that this time a man answered the phone and advised him that Mr. Sodhi was not in the office. Mr. Singh testified that he asked the man to tell Mr. Sodhi to call him back as he had been involved in a motor vehicle accident and had injuries to report. Mr. Singh testified that the man advised him that he would give Mr. Sodhi the message.

Mr. Singh testified that he had still not heard from Mr. Sodhi by mid-August 1994. He testified that at that time he asked his friend, Mr. Baljinder Badesha, who spoke better English to call Mr. Sodhi. Mr. Singh testified that Mr. Badesha subsequently advised him that he had attempted to call Mr. Sodhi but had not been able to reach him. Mr. Badesha left a message for Mr. Sodhi to call Mr. Singh.

Mr. Baljinder Badesha testified on Mr. Singh's behalf at the hearing and confirmed that Mr. Singh had asked him to call Mr. Sodhi and inform him of Mr. Singh's accident and injuries. Mr. Badesha testified that he called Mr. Sodhi's office on the 17th or 18th of August, 1994 and spoke to someone called Julie or Judy at the office who advised him that Mr. Sodhi was not in the office. Mr. Badesha testified that he told the woman that he wanted to report an accident and asked her to have Mr. Sodhi call Mr. Singh.

Mr. Singh testified that by the time October arrived, he had still not heard from Mr. Sodhi so he called Dominion directly, and provided a representative of Dominion with his policy number and advised that he had been involved in a motor vehicle accident in July 1994. He also advised the person that he had already reported the accident to his broker but no adjuster had contacted him. Mr. Singh testified that the representative of Dominion told him to contact his broker again because the broker had not advised Dominion of the accident. The representative advised him that Dominion did not entertain calls directly from clients.

Mr. Singh testified that he called the brokerage again on the same day. This time he was told that a report would be sent to Dominion.

As noted earlier, Dominion's position is that Mr. Singh first reported the accident and his claim on October 18, 1994, and not in July and August as Mr. Singh claims. Dominion relied on the records of the brokerage and the testimony of Ms. Sally Neely, a licenced broker and the office administrator with the brokerage.

Ms. Neely testified that Mr. Singh's broker, Mr. Sodhi, has not worked with the brokerage since July 26, 1994, when his services were terminated. She testified that she is the "fall back person" when an insured person phones the office to report an accident and there is no broker servicing the person's file. She testified that if she is not available, a message is left for her to call the person or alternatively the call is directed to Mr. Philip Youngs, Vice President & General Manager of the brokerage.

Ms. Neely testified that it is office policy that any time anyone in the office has a conversation with an insured person, a written record must be made of the call and the record inserted in the insured person's file. Ms. Neely testified that this policy was in effect during the period July 23, 1994 to October 18, 1994, and, accordingly, there would be a record of Mr. Singh's or Mr. Badesha's call in Mr. Singh's file if any one in the office spoke to Mr. Singh or Mr. Badesha. Ms. Neely testified there is no record of a call from Mr. Singh or Mr. Badesha until October 5, 1994, when the records indicate that Mr. Singh had a conversation with Mr. Lev Gotsulsky, broker, about renewing his automobile policy, which was about to expire on October 16, 1994; the records do not indicate that Mr. Singh reported the accident to Mr. Gotsulsky on that day. The first record of any report about the accident is dated October 18, 1994, when Mr. Singh spoke to Ms. Neely about it.

In determining when Mr. Singh first notified Dominion of the accident and his intent to apply for statutory accident benefits, I prefer the brokerage records, as confirmed by Ms. Neely, for the following reasons:

Mr. Singh's and Mr. Badesha's testimony is inconsistent with prior statements that Mr. Singh made to North York Insurance Brokers Ltd. on October 18, 1994 and Lindsey Morden Claims Services Limited on October 31, 1994.

Ms. Neely testified that on October 18, 1994, she completed a Notice of Loss form based on information provided by Mr. Singh. The form makes no mention of Mr. Singh's attempts to notify his broker of his claim prior to October 18, 1994. On the contrary, the form indicates that Mr. Singh had not reported his claim before October 18, 1994 because "...he thought his injury was minor however he ha(d) been doing everything his doctor ha(d) prescribed and he (was) still suffering dizziness and felt he must put a claim in."[2]

Mr. Singh denied speaking to Ms. Neely on October 18, 1994. However, he acknowledged that he spoke to her sometime in October and he did not deny that at that time he made no mention to her of his attempts to notify his broker.

On October 31, 1994, Mr. Singh gave a signed statement to Mr. Robert Gow, an insurance adjuster from Lindsey Morden Claims Services Limited, which had been retained by Dominion to investigate Mr. Singh's claim.[3] The signed statement states that Mr. Singh "...did not report the claim to (his) insurance company at first because (he) was going to work everyday but (his) problem ha(d) not gone away so (he) felt (he) had to report (the) claim."[4] Again, nowhere in the statement to Mr. Gow does it say that Mr. Singh had attempted to notify his broker prior to October 18, 1994.

When asked to explain the apparent inconsistency between his testimony and his prior statement to Mr. Gow, Mr. Singh insisted that he had told Mr. Gow about his previous attempts to report the claim.

Mr. Singh testified that he did not read the statement he gave Mr. Gow before signing it because he is unable to read English. He testified that no interpreter was present, and when he asked Mr. Gow if he should have one, the answer was "no."

Mr. Singh also testified that while the statement states that it was read to him in English by Mr. Gow, this did not actually happen. Finally, he testified that he initially refused to sign the statement, but did so after Mr. Gow advised him that it would take less time to receive compensation if he did so.

Mr. Singh's testimony is contradicted by Mr. Gow's. Mr. Gow testified that during his interview with Mr. Singh on October 31, 1994, Mr. Singh made no mention of having contacted his broker or Dominion following the accident, did not request an interpreter, refused one when offered, and signed a Language Preference form, indicating English as his preferred language and confirming that Mr. Singh advised that he did not require an interpreter.[5] Mr. Gow testified that he read the complete statement to Mr. Singh before he asked him to sign it. He testified that he made several changes to the statement at Mr. Singh's request as he read the statement. These changes were initialled by Mr. Singh. Mr. Gow testified that he was satisfied when Mr. Singh signed the statement that he understood the contents of it.

Mr. Gow's testimony about Mr. Singh's ability to speak and understand English is consistent with the preponderance of the documentary and oral evidence tendered at the hearing.[6] The consistency in the information recorded by a number of individuals about what Mr. Singh told them about the accident and the injuries he sustained without the aid of an interpreter indicates that Mr. Singh's English speaking skills were not as poor as he claims. He was able to understand what he was being asked and his responses were understood by the individuals eliciting the information.

I prefer Mr. Gow's testimony over Mr. Singh's because it is consistent with Ms. Neely's testimony about what Mr. Singh told her on October 18, 1994. Further, I note that Mr. Singh spoke to Mr. Lev Gotsulsky of North York Insurance Brokers Ltd. on October 5, 1994 but made no mention of the accident or that he had previously attempted to notify his broker.[7] I also note that Dominion has no record of such a call from Mr. Singh.[8] Ms. Suzanne Young, a claims representative with Dominion, testified that Dominion first received notice of Mr. Singh's accident and claim through North York Insurance Brokers Ltd. on October 18, 1994.

Secondly, I prefer the brokerage records, as confirmed by Ms. Neely's testimony, over Mr. Singh's and Mr. Badesha's testimony because Mr. Singh's and Mr. Badesha's testimony about Mr. Badesha making the telephone call to the brokerage in August 1994 does not make sense. Both Mr. Singh and Mr. Badesha testified that Mr. Singh asked Mr. Badesha to call Mr. Singh's broker, Mr. Sodhi, because Mr. Badesha spoke better English than Mr. Singh. However, both Mr. Badesha and Mr. Singh testified that Mr. Sodhi spoke Punjabi, Mr. Singh's native language. Why then would it be necessary for Mr. Badesha to call Mr. Sodhi? It would have made sense if Mr. Singh had asked Mr. Badesha to report the accident and Mr. Singh's claim to some other person at the brokerage, if he was unable to reach Mr. Sodhi. However, according to the testimony of Mr. Badesha and Mr. Singh, this is not what Mr. Singh asked Mr. Badesha to do, and this is not what Mr. Badesha did. According to their testimony, Mr. Badesha called the broker's office.

When he was advised that the broker was not in the office, Mr. Badesha did not report Mr. Singh's accident but simply left a message for Mr. Sodhi to call Mr. Singh.

Finally, I found Mr. Singh generally not to be a credible witness. His evidence was not only confusing and inconsistent on the question of when he notified Dominion of his claim, but also in other areas, including on the question of when he returned to work following the accident and, the extent of his recovery following the accident. In his cross-examination, Mr. Singh testified that he first returned to modified work in October 1994. In his Application for Accident Benefits, dated November 2, 1994, he stated that he returned to work on October 3, 1994.[9] However, in his examination-in-chief, Mr. Singh testified that from the date of the accident until mid-October he looked after the business, i.e., he supervised the work of his three employees. The signed statement that Mr. Singh gave Mr. Gow on October 31, 1994 states first: "Since the accident I have not been able to do the auto body repair work that I did before the accident but I still go to the shop everyday. The shop is open from 8:00 a.m. to 5:00 p.m. Monday to Friday and some Saturdays. I open from 9:00 a.m. to 2:00..." Later the statement states: "In the three weeks following the accident I worked ... 4 hours per day because of my injury."[10] Further, Dr. White, an orthopaedic surgeon, who assessed Mr. Singh on behalf of Dominion on February 6, 1995, notes in his report that Mr. Singh advised him that "(n)ow he does office work in his business which he continued since his motor vehicle accident and laid off a secretary that he had previously who did these duties."[11] At the hearing, Mr. Singh was unable to adequately explain these discrepancies in the evidence.

In respect of the extent of Mr. Singh's recovery since the accident, Mr. Singh testified that since the accident he has been experiencing neck pain, lower back pain and light headedness. However, Mr. Singh's statement to Mr. Gow on October 31, 1994 states: "The only problem I continue to have are the dizzy spells, my neck has healed and is no longer a problem."[12] Further, Dr. White states in his report of February 6, 1995 that Mr. Singh advised him on that date that "(h)is neck discomfort cleared up fully in about one month and he has not had any other ongoing problems except dizziness and periodic frontal headaches. He has no symptoms in the neck and no symptoms in his upper or lower limbs or back and general musculoskeletal inquiry is negative and he says 'everything else is O.K.' except he also complains of difficulty with recent memory."[13] Again, at the hearing, Mr. Singh could not explain these discrepancies in his evidence.

Mr. Singh submits that even if I were to find that he first notified Dominion of his accident and his intent to apply for statutory accident benefits on October 18, 1995, he still meets the requirements of subsection 59(1) of the Schedule. Mr. Singh submits that subsection 59(1) does not require that an insured person notify the insurer within thirty days of the accident rather it requires that the insured person notify the insurer "...within thirty days after the circumstances arose that gave rise to the entitlement to benefits..." (Emphasis added). Mr. Singh submits that the thirty day period only starts to run after the insured becomes aware or knows that he is going to be disabled. Mr. Singh submits that he notified Dominion of his claim within 30 days after he became aware that he was going to be disabled.

Subsection 59(1) of the Schedule does state "...within thirty days after the circumstances arose that gave rise to the entitlement to benefits" and I agree that this does not necessarily mean within thirty days of the motor vehicle accident. However, based on Mr. Singh's own evidence in respect of his injuries and disability following the accident and based on the medical evidence tendered at the hearing, I agree with Dominion that this is not a case where Mr. Singh was not aware of his injuries or the extent of his injuries until sometime after they occurred. On the contrary, his injuries were most severe at and immediately following the accident. He was recovering by September 1994. I find that in Mr. Singh's case the circumstances that gave rise to the entitlement to benefits arose on July 23, 1994, the date of the accident. Mr. Singh was required to notify Dominion by August 22, 1994. I find that Mr. Singh notified Dominion on October 18, 1994. He, therefore, failed to meet the requirements of subsection 59(1) of the Schedule.

The requirement in subsection 59(1) of the Schedule is modified by the alternative of "or as soon as practicable thereafter," however, this issue was not raised by Mr. Singh. In any event, other than the evidence from Mr. Singh and Mr. Badesha about the attempts made to notify Dominion which I have rejected, no evidence was adduced at the hearing that Mr. Singh was unable to communicate following the accident until October 18, 1994, or that he faced any other difficulties which prevented him from notifying Dominion prior to October 18, 1994.

The requirement in subsection 59(1) of the Schedule is also modified by the saving provision in subsection 59(4) which states that "(a) failure to comply with a time limit set out in subsection (1)...does not disentitle a person to benefits if the person has a reasonable excuse." I found that Mr. Singh did not offer a clear excuse.

Mr. Singh testified that he did not know that he was entitled to apply for statutory accident benefits and suggested in his submissions that, if I found that he did not comply with the 30-day time limit in subsection 59(1), this was the reason why he failed to comply with the time limit. However, I do not accept that this was the reason for the delay. No evidence was adduced as to how circumstances changed so that he became aware of his entitlement to statutory accident benefits on October 18, 1994. And as noted earlier, I do not find this to be a case where Mr. Singh was not sure at first of the effect of the motor vehicle accident. His injuries were most severe at and immediately following the accident. He had grounds to suspect that there may be a claim. The evidence indicates that Mr. Singh was not totally unknowledgeable or unsophisticated when it came to reporting insurance claims. In his auto body business, which specializes in accident vehicle repair, Mr. Singh, as the owner, had dealings with adjusters from various insurance companies.[14] Further, prior to July 23, 1994, Mr. Singh had himself reported seven automobile claims, albeit mostly involving property damage, to North York Insurance Brokers Ltd. Ms. Neely testified that she herself had taken claims from Mr. Singh on two prior occasions (prior to July 23, 1994).[15] Based on his past experience and his dealings with adjusters, Mr. Singh must have been aware that recovery under an insurance policy required that a loss be brought to the attention of the insurer as soon as possible.

For the above noted reasons I find that Mr. Singh does not have an excuse for failing to comply with the time limit set out in subsection 59(1) of the Schedule.

Mr. Singh submits that notwithstanding my findings on whether he complied with subsection 59(1) of the Schedule and whether he has a reasonable excuse for failing to comply with the time limit, it is open to me, given that section 59 is a procedural and technical provision and the Schedule is remedial legislation and must be given a broad and liberal construction (see Bress and Bress and State Farm Insurance Companies (March 23, 1992), OIC A-000191 & A-000192), to find that Mr. Singh's claim is still valid because of the hardship to Mr. Singh if he is prevented from having his day before an arbitrator for a determination of his entitlement to statutory accident benefits and Dominion has not been prejudiced by the delay. Mr. Singh submits that Dominion is not in any different position than it would have been if Mr. Singh had reported the claim to it within 30 days. Mr. Singh points out that in Kuronen and Allstate Insurance Company of Canada (December 29, 1995), OIC A95-1897, the failure of the applicant to give the insurer initial notice of his claim for accident benefits for a period of 18 months was not considered to invalidate his claim.

Dominion contends that it has been prejudiced by the delay. It contends that it has been prejudiced because it did not have an opportunity to have Mr. Singh assessed by a medical practitioner of its choice shortly following the accident. It contends that Mr. Singh did not receive any significant treatment following the accident. Dominion submits that the medical documentation that is available to it from Mr. Singh for the period July 23, 1994 and October 18, 1994 is sparse. It only consists of two Health Practitioner's Certificates from Mr. Singh's family doctor. These documents are inconsistent with each other. Dominion submits that it has no way of assessing Mr. Singh's claim during this period.

Given that the burden of proof is on Mr. Singh to establish his claim for entitlement to benefits, I am not convinced that Dominion is significantly prejudiced by the delay. However, subsection 59(4) of the Schedule provides the only relief from forfeiture provision in respect of the time limit set out in subsection 59(1). I have found that Mr. Singh has not established that he meets the requirements of that provision. He does not have an excuse for failing to comply with the time limit set out in subsection 59(1). No other provision in the Act or the Schedule confers on me the power to extend or suspend the time limit set out in subsection 59(1) of the Schedule. This case is different from Kuronen. In Kuronen, the arbitrator found that the applicant had a reasonable excuse for the 18 month delay in notifying the insurer of his claim for accident benefits. The arbitrator considered the prejudice to the insurer and the hardship to the applicant in the context of determining whether the applicant's excuse for the delay was reasonable. In this case, I am not satisfied that Mr. Singh had an excuse for the delay. I would be going outside the provision in subsection 59(4) of the Schedule if I were to find, in the absence of an excuse, that Mr. Singh's claim was nevertheless valid because of a lack of prejudice to the insurer and hardship to Mr. Singh. The interpretation that Mr. Singh is proposing deprives the word "excuse" of meaning. It is trite law that no legislation should be interpreted to leave parts of it meaningless.

Conclusion:

I find that Mr. Singh failed to comply with the time limit in subsection 59(1) of the Schedule and that this failure disentitles him to benefits under the Schedule. Further, I find that pursuant to section 281(2) of the Act and section 71.1 of the Schedule, Mr. Singh is precluded from proceeding to arbitration.[16]

Expenses:

There is no dispute between the parties on this issue. They both agree that Mr. Singh is entitled to his expenses of the hearing. Accordingly, I find that Mr. Singh is entitled to his expenses in accordance with Ontario Regulation 664, R.R.O. 1990, as amended. If the parties are unable to agree on the expenses payable they may apply to the Commission to have the expenses assessed.

Order:

Mr. Singh's application for arbitration is dismissed.
Dominion shall pay Mr. Singh his expenses incurred in respect of the hearing.

October 3, 1997

Shemin Manji

Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Brief of Documents of the Dominion of Canada General Insurance Company

Exhibit 2

Handwritten notes of Mr. Gow dated October 31, 1994

Exhibit 3

Report of Hayes Smith & Associates Inc. dated June 3, 1996 (found in the Productions of Dominion of Canada General Insurance Company at Tab 6)

Exhibit 4

Report of Hays Smith & Associates Inc. dated August 17, 1995 (found in the Productions of Dominion of Canada General Insurance Company at Tab 5)

Gurnek Singh v. Dominion of Canada General Insurance Company, 1997 ONICDRG 185

Case Summary

Present at the Hearing:

Reasons for Decision:

The Law:

Evidence and Findings:

Conclusion:

Expenses:

Order:

APPENDIX A

Exhibits:

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

Gurnek Singh v. Dominion of Canada General Insurance Company, 1997 ONICDRG 185

Case Summary

Present at the Hearing:

Reasons for Decision:

The Law:

Evidence and Findings:

Conclusion:

Expenses:

Order:

APPENDIX A

Exhibits:

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