Neutral Citation: 1997 ONICDRG 9

OIC A96-000105

ONTARIO INSURANCE COMMISSION

BETWEEN:

Hamzeh Ansari and Molood Ansari

Applicants

and

Royal Insurance Company of Canada

Insurer

DECISION

Issues:

The Applicants, Hamzeh and Molood Ansari, were injured in a motor vehicle accident on January 8, 1995. They applied for and received statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Mr. and Mrs. Ansari had various disputes with Royal about their entitlement to benefits which they were unable to resolve through mediation. Accordingly, they applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Do Mr. and Mrs. Ansari have recourse against any other policy of automobile insurance under section 268(2) of the Insurance Act, or is Royal liable to pay them statutory accident benefits?
Is Mr. Ansari entitled to income replacement benefits from January 15, 1995 onwards pursuant to section 7(1)3.i of the Schedule, in that he was entitled at the time of the accident to start work within one year, under a legitimate contract of employment made before the accident and evidenced in writing? If Mr. Ansari is entitled to income replacement benefits, what is the amount of his benefit?
Is Mrs. Ansari entitled to income replacement benefits from September 24, 1995 onwards under sections 7(1)3.i and 7(1)3.ii of the Schedule in that she was entitled at the time of the accident to start work within one year, under a legitimate contract of employment made before the accident and evidenced in writing, and further, did she suffer a substantial inability to perform the essential tasks of the employment? If Mrs. Ansari is entitled to income replacement benefits, what is the amount of her benefit?
In the alternative, is Mrs. Ansari entitled to income replacement benefits from September 24, 1995 onwards under sections 7(1)2.ii and 7(1)2.iv of the Schedule on the basis that she was employed for some period during the 156 weeks before the accident and she suffered a substantial inability to perform the essential tasks of the employment in which she spent the most time during the 156 weeks before the accident? If Mrs. Ansari is entitled to income replacement benefits, what is the amount of her benefit?
In the alternative is Mrs. Ansari entitled to caregiver benefits from September 24, 1995 onwards, under section 18 of the Schedule?
Is Mr. Ansari entitled to his taxi expenses pursuant to section 54 or section 40 (5)(e) of the Schedule ?

Both Mr. and Mrs. Ansari claim interest on any benefits found to be outstanding and their expenses of this proceeding. Royal seeks a repayment of its filing fee.

Result:

Mr. and Mrs. Ansari do not have recourse against any other policy of insurance pursuant to section 268(2) of the Insurance Act. Accordingly, Royal is liable to pay them statutory accident benefits under this section.
Mr. Ansari is not entitled to income replacement benefits from January 15, 1995 onwards, pursuant to section 7(1)3.i of the Schedule as he was not entitled at the time of the accident to start work within one year, under a legitimate contract of employment made before the accident and evidenced in writing.
Mrs. Ansari is not entitled to income replacement benefits from September 24, 1995 onwards, pursuant to sections 7(1)3.i and 7(1)3.ii of the Schedule as she was not entitled at the time of the accident to start work within one year, under a legitimate contract of employment made before the accident and evidenced in writing, and further, she did not suffer a substantial inability to perform the essential tasks of the employment.
Mrs. Ansari qualifies for benefits under section 7(1)2.ii of the Schedule on the basis that she was employed for some period during the 156 weeks before the accident, but she is not entitled to income replacement benefits for the period from September 24, 1995 onwards, pursuant to section 7(1)2.iv, as she did not suffer a substantial inability to perform the essential tasks of her home baking self-employment.
Mrs. Ansari is not entitled to caregiver benefits from September 24, 1995 onwards pursuant to section 18 of the Schedule.
Mr. Ansari is not entitled to be paid his taxi expenses pursuant to either section 54 or section 40 (5)(e) of the Schedule.
a) Mr. and Mrs. Ansari are entitled to payment of one-third of their combined expenses of this arbitration in accordance with Schedule F of the Dispute Resolution Practice Code--1995 version.

b) Royal's claim for repayment of its filing fee pursuant to section 282(11.2) of the Insurance Act, is denied.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on August 13, 14, 15, 1996 and September 10, 1996, before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

Hamzeh Ansari

Molood Ansari

Mr. Ansari's Representative:

Neil Sacks

Barrister and Solicitor

Royal's Representative:

Christopher J. Schnarr

Barrister and Solicitor

The proceeding were translated for Mr. and Mrs. Ansari into the Farsi language by Saed Kakei, on August 13, 1996, and by Babak Ardalan on August 14, 15, 1996 and September 10, 1996.

Witnesses:

Hamzeh Ansari, Houshangh Sadighi, Molood Ansari, Terry Clarke.

Exhibits:

40 Exhibits were filed in this proceeding.

PRELIMINARY ISSUE:

Mr. and Mrs. Ansari were involved in a motor vehicle accident on January 8, 1995. At the time of the accident, they were driving a motor vehicle which owned by Tara Auto Sales and insured by Royal Insurance Company ("Royal"). Royal submits that the Ansaris had the use of a friend's vehicle at the time of the accident and might have been a listed driver under the friend's policy. Royal states that before the Applicants can have recourse to its policy, it must be satisfied that there is no other policy under which the Applicants are insured. Accordingly, it submits it is not the Insurer who is liable to pay benefits to the Ansaris.

Section 268(2)¹ of the Insurance Act is the section which considers which Insurer is liable to pay statutory accident benefits to an applicant. Initially the occupant of a motor vehicle has recourse against the insurer of his own car. If such insurance coverage is unavailable, the occupant's recourse is against the insurer of the car in which he or she was an occupant.²

Upon a review of the evidence, I found no evidence that other insurance was available to the Ansaris at the time of the accident, as suggested by Royal. Although the Ansaris may have had the use of a friend's vehicle from time to time, this was at best remote in time to the accident. In all the circumstances, I find that Royal is liable to pay any benefits found to be owing to Mr. and Mrs. Ansari.

BACKGROUND:

A. The Accident:

On January 8, 1995. Mr. Ansari was driving a motor vehicle, with Mrs. Ansari beside him, when another car entered an intersection hitting the right front corner of the Ansaris' vehicle. Mr. and Mrs. Ansari sustained injuries in the accident.

Mrs. Ansari's right hand hit the door of the car while she held the dashboard with her left hand. Immediately after the accident, she felt an intense headache, with lower back and neck pain. She was taken by ambulance to Sunnybrook Hospital where she remained for about five hours. Mrs. Ansari was x-rayed at the hospital, and given pain killers. While at the hospital, she felt pain in her left hand, fingers and right elbow.

The day following the accident, Mrs. Ansari felt pain in her chest and increased pain in her back, right hand, elbow and fingers of her left hand. Mrs. Ansari continues to experience burning and numbness in the fingers of both hands and pain and emotional complaints, for which she takes painkillers and anti-depressants.

Mr. Ansari was also injured in the motor vehicle accident. The extent and seriousness of his injuries are not in dispute in this proceeding, and I heard no evidence in this regard.

B. Employment History:

Mr. and Mrs. Ansari were born in Iran in 1952 and 1949 respectively.

Mr. Ansari completed high school and three years of college in Iran, where he graduated as an auto mechanic. He worked as an auto specialist for 11 years in the Iranian navy and later in his own car repair business. Mr. Ansari came to Canada in 1988 where he worked as a partner in a sign company.

Mrs. Ansari was employed in a pastry shop known as the Baba Noel Confectionary, from November 22, 1989 until January 20, 1993, while in Iran. She immigrated to Canada in early 1993. After her arrival in Canada, Mrs. Ansari occasionally worked from her home as a self-employed baker, from February 1993 until December 1994.

C. The issues:

i) Mr. Ansari:

Mr. Ansari claims that he is entitled to be paid income replacement benefits under section 7(1)3.i of the Schedule on the basis that he was entitled at the time of the motor vehicle accident to start work with Tara Auto Sales ("Tara"), a used car dealer, under a legitimate contract of employment evidenced in writing.

Royal did not wish me to make an order regarding Mr. Ansari's entitlement to benefits, but simply requested a finding of fact as to whether Mr. Ansari had entered into a legitimate contract of employment. I ruled that the issue of Mr. Ansari's entitlement to benefits under section 7(1)3.i is properly before me, as evidenced in the pre-hearing letter of June 21, 1996. Arbitrator Palmer states as follows:

At this juncture, Mr. Ansari's eligibility for this benefit from a medical perspective is not in dispute. However, the quantum is in dispute along with the whole question of entitlement under section 7(1)3.i. Mr. Schnarr wishes to consider his position with respect to the impairment question. As this would change the complexion of the hearing, I have given him 7 days from the date he receives the Social Services records to let Mr. Sacks and the commission know his position...

Counsel for the Insurer conceded that to date he has not requested a further pre-hearing, nor has he disputed Mr. Ansari's disability. Accordingly, the issue of Mr. Ansari's ongoing disability is not in issue before me. If Mr. Ansari meets the test, Royal must pay him income replacement benefits for the period from January 15, 1995 onwards.

Royal has continued to pay Mr. Ansari the sum of $185.00 per week from January 15, 1995 to date, as "other disability benefits," pursuant to section 19 of the Schedule.

Mr. Ansari also claims taxi expenses pursuant to either section 54 or section 40 (5)(e) of the Schedule.

ii. Mrs. Ansari:

Mrs. Ansari argues that she is entitled to income replacement benefits pursuant to section 7(1)3.i and 7(1)3.ii of the Schedule as at the time of the motor vehicle accident, she was entitled to start work as a secretary with Tara under a legitimate contract of employment.

In the alternative, Mrs. Ansari claims entitlement to income replacement benefits on the basis that she was employed at Baba Noel Confectionary ("Baba") during the 156 weeks before the accident, and she suffered a substantial inability to perform the essential tasks of her job at Baba, pursuant to section 7(1)2.ii and 7(1)2.iv of the Schedule. The quantum of her benefit is also in issue.

Lastly, Mrs. Ansari claims in the alternative that she is entitled to caregiver benefits pursuant to section 18 of the Schedule, for the care of her 12 year old daughter.

Royal paid Mrs. Ansari "other disability benefits" in the sum of $185.00 per week from January 15, 1995 until September 24, 1995. Royal wished to include in this hearing the issue of Mrs. Ansari's disability for the period prior to September 24, 1995 and its claim for repayment of benefits for this period. Counsel for the Applicant did not agree to the inclusion of these issues. I denied the Insurer's request as the issues were not mediated, and their inclusion in the arbitration at this late stage would have been prejudicial to Mrs. Ansari.

Mrs. Ansari does not make the alternative claim for "other disability benefits" in this proceeding, as the parties agreed that if Mrs. Ansari was unable to meet the test for caregiver benefits contained in the Schedule, she would be unable to meet the test for "other disability benefits."

D. Evidence and Analysis:

i) Income Replacement Benefits

If I find that Mr. and Mrs. Ansari were entitled at the time of the accident to start work at Tara within one year, under legitimate contracts of employment made before the accident and evidenced in writing, then they meet the first part of the test for income replacement benefits under section 7(1)3.i of the Schedule.

The cases to date have not defined the words legitimate contract of employment. In considering the meaning of the words, it is helpful to consider the wording contained in the prior Schedule³ Section 2 of the prior Schedule states that a person is entitled to weekly income benefits if the insured person was "entitled at the time of the accident to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing."

Clearly, under the current Schedule,⁴ in order to qualify for income replacement benefits, an insured must have a legitimate contract of employment evidenced in writing, not simply a legitimate offer of employment evidenced in writing.

Cases at the Commission have held, and I agree, that there can be evidence in writing of the offer after the offer has been made, on the basis that the prior Schedule did not qualify the words "evidenced in writing."⁵ The words are similarly expressed in this Schedule. Accordingly, I find that a contract of employment may also be evidenced in writing, after the fact.

On my review of the evidence, I find that neither Mr. or Mrs. Ansari qualify for income replacement benefits as neither had legitimate contracts of employment evidenced in writing. Both Mr. and Mrs. Ansari testified in this proceeding. Their evidence on the relevant and material elements of the claim, was not credible. I found Mr. Ansari deliberately vague and evasive. He testified in an argumentative manner, and made some false statements to this tribunal.

Mrs. Ansari also testified in an evasive and argumentative manner and claimed "confusion" when none should have existed. Accordingly, I place little weight on their evidence in this proceeding, and look to the objective evidence presented in considering their claims.

Both Mr. and Mrs. Ansari claim that at the time of the accident, they were in training for Tara Auto Sales, under legitimate contracts of employment, evidenced in writing. Mr. Ansari stated that after his training ended, he would have been employed by Tara in repairing and selling used cars. His employment was to entail writing agreements, registering, selling and transferring cars, and at attending car auctions. Both Mr. and Mrs. Ansari submit that they were to start their actual employment on January 10, 1995, after the initial training period. Mr. Ansari stated that his salary was to be $750.00 per week plus 2% commissions on any cars he sold. Mrs. Ansari testified that she was to be employed as a receptionist at Tara after her training period, at a salary of $400.00 per week.

Mr. Ansari testified that he trained six days a week from 9:00 a.m. until 8:30 p.m. commencing on December 25, 1994, until the date of the accident. During this time he stated that he certified two cars, went to the Ministry two or three times to learn how to register cars, and on a couple of occasions picked up cars and brought them to Tara's offices. He testified that he did not sell any cars during this period.

Mrs. Ansari stated that she trained as a secretary for Tara from 9:00 a.m. to 5:00 p.m., six days a week. She also stated that she commenced her training on December 25, 1994. Her duties were to answer telephone calls, perform office work and cleaning, including mopping the floors. Both Mr. and Mrs. Ansari acknowledged that this lengthy training was without pay.

Mr. Ansari testified that he met the owner of Tara, Sima Talebpour, together with her husband Buik Mustefevi, socially in February 1993, and later on three separate occasions. Mr. Ansari testified that at their initial meeting, he was advised that Mrs. Talebpour owned a used car business.

Mr. Ansari testified that in December 1994 Mr. Mustefevi told him that Tara was hiring two individuals, one for the Danforth office, and the other for their office in Vancouver. Mr. Ansari advised Mr. Mustefevi that he and his wife were available to work.

Mr. Ansari testified that three days later, Mr. Mustefevi contacted him about the openings. Mr. Mustefevi and Ms. Talebpour allegedly met, negotiated the agreements and determined the commencement dates of the alleged training period, which was to start on December 25, 1994, and end January 10, 1995. After this training period the Ansaris full-time work was to commence.

I find that the circumstances surrounding the alleged hiring and training of the Ansaris, together with the details of the alleged contracts of employment are questionable. In addition, I find that Mr. and Mrs. Ansari did not train at Tara during the time period alleged, for the following reasons.

During the course of the hearing Mr. Ansari failed to disclose vital information about his past business dealings and experience, which tainted his testimony with respect to the alleged contract with Tara.

No explanation was given as to why Tara would agree to hire Mrs. Ansari just because Mr. Ansari suggested it. Furthermore, neither Mr. or Mrs. Ansari filled out applications for employment nor could Mr. Ansari remember whether he had provided Tara with his social insurance number.

During cross-examination, Mr. Ansari testified that he had no prior training as a used car salesman. He failed to mention that he was registered to sell motor vehicles pursuant to The Motor Vehicle Dealer's Act. The Insurer filed a Confirmation of Business Registration dated September 5, 1996 in this proceeding.⁶ The document confirmed that Mr. Ansari was first registered on December 1, 1993, and his licence expired on December 1, 1995. I place significant weight on this evidence which shows that Mr. Ansari had an interest in the used car business as early as December 1, 1993 although his involvement in this business is unclear. I did not hear direct evidence of his employment or self-employment in this field. Nevertheless, it is clear that he had more experience in the used car business than he testified to. For example, Mr. Ansari testified that he only went to a car auctions twice during his alleged training period, nevertheless, he was able to give a detailed explanation of how a car auction worked. He was also able to attend a car auction and purchase his own family car, without assistance, after the accident.

Mr. Ansari also failed to divulge details of his employment prior to December 1994, as a partner in a sign making company. Mr. Ansari indicated that he worked in this company as a partner when he arrived in Canada in 1992. He was unable to recall details of the company or his salary at the hearing, despite attesting to these details in a statement dated February 27, 1995.⁷He was also unable to remember details of other limited work experience engaged in prior to July 1994. His failure to remember these details support my finding that he was covering up his prior employment history, which appears to have included dealings in the used car business.

The Ansaris seemed to engage in a pattern of covering up their work history and income. They were in receipt of welfare payments prior to the motor vehicle accident. Mrs. Ansari testified that she falsified documentation given to social assistance, for financial gain. The Ansaris told the welfare authorities several different stories about the sources of their income during the time that they were in receipt of social assistance, so as to maximize their benefits.

I find that Mr. Ansari appears to have had a pre-existing relationship with Tara and its owners, which was much deeper than what could be gained through the alleged training period and few short meetings. A deeper relationship would account for the Ansaris' presence at Tara which was noted by Mr. Sadhighi, an acquaintance of Mr. Mustefevi. Mr. Sadhighi testified that the Ansaris appeared to be the owners of Tara when he attended the premises in December 1994.

Evidence of the longstanding relationship between the Ansaris and Tara emerged after the motor vehicle accident. Mr. Ansari attempted to hide the nature of his relationship with Mr. Mustefevi by initially failing to mention his frequent post-accident telephone contacts, until June 1996. No explanation was given as to why it was necessary for Mr. Ansari to frequently contact a man with whom he had met only four times prior to the accident, and for whom he allegedly trained for two weeks in January 1995.

I do not believe that the Ansaris were in training during the two weeks prior to the accident. It is unnecessary for me to consider whether this training period constituted "employment" pursuant to section 7(1) of the Schedule.

Although Mrs. Ansari testified about her involvement in falsifying information to welfare, she was not forthright or credible in other aspects of her testimony.

Mrs. Ansari testified that she was to commence work after the training period at the agreed upon rate of $400.00 per week. Nevertheless, in her Application for Accident Benefits,⁸ her subsequent statement⁹ and her disability questionnaire to Royal Insurance Company,¹⁰ Mrs. Ansari noted that her salary was to be $500.00 per week. Mrs. Ansari was unable to adequately explain why there were different salary amounts noted. She simply claimed that she was "confused."

Mrs. Ansari relied upon the statement and letter of Mrs. Talebpour¹¹ to corroborate the legitimacy of her alleged contract, and comply with the statutory requirement that it be in writing.

Terry Clarke, a road adjuster with Royal, testified at the hearing, on behalf of Royal. He took a written statement from Mrs. Talebpour on March 6, 1995.¹² He testified that prior to taking the statement he observed Mr. Ansari drive up outside the Tara offices. Mr. Ansari got out of his car and spoke with Mrs. Talebpour for four to five minutes and then drove away in his vehicle, which had dealer plates. In her statement taken immediately thereafter, Mrs. Talebpour stated that she had not seen Mr. Ansari since just after the accident. In my view, this falsehood taints the balance of Mrs. Talebpour's evidence and any letters sent by her on behalf of the Ansaris.

Approximately three weeks after giving her statement, Mrs. Talebpour sent Royal a letter purportedly evidencing the contracts for both Mr. and Mrs. Ansari. In this letter, dated March 30, 1995,¹³ Mrs. Talebpour confirmed that Mrs. Ansari's starting weekly salary would be $400.00, and not the $550.00 per week noted in her earlier statement¹⁴ or the $500.00 noted in the Applicant's statement.¹⁵ Mrs. Talebpour was not called upon to clarify these inconsistencies. As the terms of this document were inconsistent with other details of the alleged contract, I cannot find that the document was credible evidence in writing, of a contract for Mrs. Ansari.

In addition, the document which was admitted into evidence, purporting to be Mr. Ansari's contract,¹⁶ was undated. The writer of the document was not called upon to clarify the date of preparation. Accordingly, I give that document minimum weight on this basis as well.

In all the circumstances, I find that at the time of the motor vehicle accident, neither Mr. nor Mrs. Ansari had legitimate contracts of employment, evidenced in writing in accordance with the Schedule. Accordingly, Mr. and Mrs. Ansaris claim for income replacement benefits under section 7(1)3.i of the Schedule is dismissed. Given this finding, it is unnecessary for me to consider whether Mrs. Ansari meets the test for eligibility pursuant to section 7(1)3.ii of the Schedule.

The Insurer has conceded that if Mr. Ansari is unsuccessful in this claim, then he is entitled to "other disability benefits" under section 19 of the Schedule, in the sum of $185.00 per week, from January 15, 1995 onwards. As this was not in issue before me, I make no order in this regard.

Does Mrs. Ansari qualify for benefits on the basis that she was employed at some point during the 156 weeks prior to the accident?

In the alternative, Mrs. Ansari claims that she qualifies for income replacement benefits pursuant to section 7(1)2.ii of the Schedule on the basis that she was employed at some point during the 156 weeks before the accident, and further pursuant to section 7(1)2.iv, suffers a substantial inability to perform the essential tasks of the employment in which she spent the most time during the time period designated under subsection (2). (emphasis added)

Subsection 7(2) states that a person who applies for benefits under paragraph 7(1)1 or 7(1)2 shall designate one of the four week, 52 week or 156 week periods before the accident. A self-employed individual shall designate only the 52 weeks or the 156 weeks before the accident. In this case, Mrs. Ansari designated the time period of the 156 weeks prior to the accident pursuant to this section.

Mrs. Ansari must meet several prerequisites in order to qualify for benefits under section 7(1)2. She was employed in her home baking business from February 1993 until December 1994.

Accordingly, she meets the requirement that she was unemployed, and over the age of sixteen years at the time of the accident. Mrs. Ansari was employed at the Baba Noel Confectionary in Iran, from November 22, 1989 until January 20, 1993. As Mrs. Ansari was employed at "some point during the 156 weeks prior to the accident,"¹⁷ she meets the last requirement under the section.

Mrs. Ansari argued that her injuries from the motor vehicle accident cause her to be substantially unable to perform the essential tasks of her employment at Baba Noel Confectionary. The Insurer claimed that the test Mrs. Ansari must meet is whether she was substantially unable to perform the essential tasks of her self-employment as a home baker.

Accordingly, the question is whether Mrs. Ansari "spent the most time" at Baba Noel or at her self-employment as a home baker during the 156 weeks before the accident.¹⁸ Mrs. Ansari submitted that she spent the most "hours" working at Baba Noel, and accordingly I should consider her essential tasks from this employment. Mrs. Ansari's evidence that she worked at Baba Noel for a period of one year and ten days, generally 82 to 9 hours each day with one-half hour for lunch, is uncontradicted.

The Insurer submitted that Mrs. Ansari spent the most time at her home baking business, claiming that the word "time" refers to the period from February 1993 until December 1994, a period of one year and ten months, when Mrs. Ansari was self-employed.

I accept the submission of the Insurer that the words "most time" refers to the interval of time employed, and not the total hours spent at the job by an individual.

The Blacks Law Dictionary¹⁹ ("Blacks") defines the word "time" as follows:

The measure of duration.

Blacks further states that "the word is expressive both of a precise point or terminus and of an interval between two points." (emphasis added)

The time periods contained in section 7(2) are intervals of time—four weeks, 52 weeks and 156 weeks. Accordingly, section 7(2) acts as a definition section for the words "time period" noted in section 7(1)2.iv.

Clearly the intent of the legislators was to give the insured person the right to choose the most advantageous interval of time from section 7(2), in which insured person must prove that he or she meets the test under section 7(1)2.iv. The individual's work history is reviewed for the interval of time selected. The individual then has the burden of proving that he or she meets the test under section 7(1)2.iv for that job in which the insured spent the most time during the interval selected.

In addition, the language of the section is clear. The legislators used the words "most time" in the section and not the words "most hours." Accordingly, I find that they were referring to an interval of time when drafting this language, and not the number of hours spent at a particular job.

In all the circumstances, I find that the employment in which Mrs. Ansari spent the "most time" during the 156 weeks prior to the accident, was her self-employment as a home baker.

Accordingly, Mrs. Ansari must prove that she suffers a substantial inability to perform the essential tasks of her home baking business in order to be eligible for income replacement benefits.

Essential Tasks of Mrs. Ansari's Home Baking Business

Mrs. Ansari worked six to seven hours per week, each weekend, at this self-employment. She testified that this business was run from her home. Mrs. Ansari did baking and pastry making. This involved standing to make the pastry dough, mixing the dough, kneading and rolling the dough, cutting the dough into shapes, using molds, placing the dough on a tray and placing the tray into an oven. Mrs. Ansari was required to lift a 10 kg bag of flour. I find that these were the essential tasks of Mrs. Ansari’s employment. I heard no evidence as to the time it took to perform each of these essential tasks.

Does Mrs. Ansari suffer a substantial inability to perform the essential tasks of her home baking business as a result of the accident?

Mrs. Ansari complains of ongoing pain in her right elbow, the fingers of her left hand, pain in her neck, chest and back, in addition to depression. As noted earlier, I did not find Mrs. Ansari a credible witness. Accordingly, where her evidence differs from the objective medical evidence, I place more weight on the latter.

The ambulance call report²⁰ prepared at the time of the accident indicated that Mrs. Ansari’s primary complaint was neck and back pain. She was diagnosed with cervical/lumbar paraspinal muscle sprain. X-rays taken on January 8, and 27, 1995, showed no injuries, fracture or dislocation, although there was some minor degenerative changes in the lumbar spine.

Mrs. Ansari went to see her family doctor, Dr. Hadian after the accident. He treated her with painkillers and sent her for x-rays, as well as active and passive physiotherapy. He completed Health Practitioner's certificates dated January 12, 1995 and February 4, 1995.²¹ Dr. Hadian reported that Mrs. Ansari was suffering from neck pain, anxiety, insomnia and headaches. He diagnosed cervical paraspinal muscle strain, and suggested that Mrs. Ansari was restricted in her neck movements.

In his third certificate dated August 31, 1995, Dr. Hadian reported that Mrs. Ansari was experiencing additional symptoms of nervousness, low back pain and right shoulder and arm pain, as well as suggesting that Mrs. Ansari had "mental restrictions."²²

Dr. Hadian referred Mrs. Ansari for physiotherapy and chiropractic treatment with Dr. Shahidi. This treatment continues to date.

Mrs. Ansari attended Target Rehabilitation ("Target") where she was initially assessed by Dr. R.K. Chow, a physiatrist, on June 28, 1995. Mrs. Ansari was then admitted to Target for an active exercise program which she attended between June and November 1995. In a progress report of August 23, 1995,²³ Target noted that Mrs. Ansari's back, neck, right shoulder and right elbow pain had improved. She was able to ride 30 minutes on an "exercycle." Nevertheless, at her follow-up assessment on October 4, 1995, Mrs. Ansari's complaints of pain continued, and she was depressed.²⁴ Accordingly, Dr. Chow advised her to continue with therapy and obtain psychological support.

In July 1995 Royal hired Ms. J. Germano, a physiotherapist with Dynamic Rehabilitation to act as Mrs. Ansari's case manager. In her report of August 14, 1995,²⁵ Ms. Germano noted that she met with Mrs. Ansari on July 26, 1995 at which time Mrs. Ansari reported that she was unable to perform many of her pre-accident essential tasks of homemaking, due to low back and right arm pain. Mrs. Ansari reported that she limited most of her homemaking activities by transferring most of the heavier chores to her daughter. Ms. Germano reported that at that time Mrs. Ansari was able to walk 45 minutes, could climb stairs with pain, was able to sit for one hour and stand for half an hour, although she was limited by low back pain.

Ms. Germano sent Mrs. Ansari to the Regional Evaluation Centre at the Orthopaedic and Arthritic Hospital. Dr. M. Ford performed an assessment on Mrs. Ansari on August 22, 1995, wherein he concluded that there were "absolutely no objective reasons to preclude her from returning to all activities thereafter."²⁶ Dr. Ford suggested that Mrs. Ansari resume her pre-accident functional activities after four more weeks of an active aggressive exercise program. Dr. Ford reported that Mrs. Ansari was consciously embellishing her symptoms.

Dr. Chow saw Mrs. Ansari again on October 27, 1995. Although her complaints continued, her neurological examination was intact throughout. Target discharged Mrs. Ansari on November 24, 1995.²⁷ At this time Dr. Chow noted that she was "still restricted in her functional ability" and recommended that a Functional Ability Evaluation be performed. However, as Dr. Chow failed to indicate which of Mrs. Ansari's functions were restricted, I find that his opinion is not helpful.

Royal sent Mrs. Ansari’s to Therapy for Function ("TFF") on November 21, 1995. Anne Carr, an occupational therapist performed a home functional assessment. Her report dated November 29, 1995²⁸ was cursory, with a fair amount of information received directly from Mrs. Ansari. After reviewing the report, I found it difficult to ascertain what data Ms. Carr relied upon to reach her clinical opinion as to Mrs. Ansari’s functional ability. The report does not speak to Mrs. Ansari’s abilities to perform her home baking tasks, and in this respect is not helpful. Accordingly, I place little weight on this aspect of the report. A subsequent report dated December 19, 1995²⁹ was similarly unhelpful, as it reported on Mrs. Ansari’s ability to perform the work at Tara only.

Mrs. Ansari developed further complaints of left carpal tunnel syndrome, possible disc herniation and depression, which were noted for the first time in Dr. Hadian’s Certificate dated January 12, 1996.³⁰ On the basis of this report, Dr. Hadian opined that Mrs. Ansari was unable to return to her normal daily activities. He failed to indicate what these normal daily activities entailed.

Dr. Hadian referred Mrs. Ansari Dr. M. Fazl, neurosurgeon. Dr. Fazl's examined Mrs. Ansari on April 3, 1996 and reported her to be "normal," and recommended that she remain active, swim and walk as much as possible.³¹

Mrs. Ansari was referred by her counsel to Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon, who performed an assessment of her on July 10, 1996.³² His report of July 13, 1996, concluded that Mrs. Ansari’s cervical, and lumbar spine was normal, as was her neurological examination. He diagnosed a carpal tunnel syndrome and suggested that this would be consistent with "swelling following the accident." I do not accept this finding, given that the first indication of carpal tunnel syndrome was noted in Dr. Hadian’s report in January 1996, a year after the accident, and Dr. Hadian did not note swelling as a problem in his reports.

Dr. Ogilvie-Harris based many of his conclusions on subjective information he received from Mrs. Ansari. He opines as follows:³³

At the current time I would not regard her as being able to return to her previous occupation. This is taking the patient as a whole. Looking at the way she moves and the way she behaves, I feel she would not be able to find a reasonable job.

He does not, however, indicate which occupation he is referring to. Dr. Ogilvie-Harris appears to be unaware of Mrs. Ansari’s home baking self-employment. In addition, his only meeting with the Applicant was 18 months after the accident. In all the circumstances I place little weight on his report.

In addition, I did not receive any objective evidence linking Mrs. Ansari’s psychological problems to the accident, despite the fact that Mrs. Ansari met with Dr. M. Showraki, a psychiatrist, for her anxiety and depression, on October 14, 1995, at the request of Dr. Hadian.³⁴

Mrs. Ansari testified that after the accident she was able to attend ESL classes in May 1995, three hours per day, five times per week. She also completed her driver’s education course. She was capable of preparing light meals and doing some light housekeeping by September 1995. Mrs. Ansari testified that her right elbow has improved, but she still has a problem with the fingers on her left hand and the palm of her hand. She also noted that her lower back pain continues and is presently radiating down her right leg. She currently complains of muscle cramps, pain in her lower back and right elbow, migraine headaches, and numbness in her fingers. She indicated that the migraines generally last for two to three days per week, often for five days. Nevertheless, she stated that at the time of the hearing she was able to walk for one-half hour, could sit continuously for about four hours, and could stand for one-half hour.

The Schedule does not compensate for "pain and suffering." It is not intended to replace general damages under the tort law system and does not compensate individuals for loss of enjoyment of life or a reduction in the general quality of life.³⁵ The experience of pain is only compensated under the Schedule, in cases where pain impairs function to such a degree that the person is substantially unable to perform his or her essential tasks.³⁶

Although I have no doubt that Mrs. Ansari physical injuries, and pain have continued, I received no evidence that her pain impaired her function so that she was substantially unable to perform the tasks of her home baking business after September 24, 1995.

Even if I were to accept Mrs. Ansari's own evidence as credible, I heard insufficient evidence from her alone to prove that she suffers a substantial inability to perform the essential tasks of her home baker job after September 24, 1995. Given that she worked at her home baker job about six to seven hours per week, two days each weekend, I find that it was open to Mrs. Ansari to take her time in performing her essential tasks. In addition, although I heard from Mrs. Ansari that it was difficult for her to lift a 10 kg bag of flour, her job as a home baker entailed standing and mixing, kneading, rolling and baking dough. I heard no evidence as to the length of time taken to perform the essential tasks or Mrs. Ansari’s inability to perform the other aspects of the job. As her job duties at Baba Noel Confectionary were much different than those of her home baking job, given the number of hours worked, I am unable to analogize the evidence provided from one job to the other.

Arbitrators have held that "substantial" inability means "sizeable inability."³⁷ In this case, Mrs. Ansari’s inability to lift the flour does not mean that she has suffered a substantial inability to perform the essential tasks of her self-employment. I find that the requirement that she lift the 10 kg bag of flour encompasses only a small fraction of her essential tasks. Mrs. Ansari also testified that she is able to prepare cakes for her own family that do not take much effort, and further that her daughter is also able to help her, so that she does not need to do all the baking alone for six to seven hours. Of course, it is also open to Mrs. Ansari to modify this duty by purchasing a smaller, lighter bag of flour when she wishes to bake. Accordingly, I find that Mrs. Ansari is able to perform the tasks required of her home baking employment.

In all the circumstances, I conclude that Mrs. Ansari has failed to meet her burden of proof pursuant to section 7(1)2.iv of the Schedule. Accordingly she is not entitled to income replacement benefits after September 24, 1995. Given my finding in this regard, it is unnecessary for me to consider the amount of the benefit to which Mrs. Ansari would have been entitled.

ii) Caregiver benefits:

Mrs. Ansari argues that in the alternative she is entitled to caregiver benefits pursuant to section 18 of the Schedule. Counsel for the Insurer did not object to this alternative claim, and it appears to be allowed for under the Schedule. Accordingly, Mrs. Ansari must prove under this section, that she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident or in the alternative, that she suffered a partial or complete inability to carry on a normal life as a result of her injuries sustained in the accident.

Counsel for the Mrs. Ansari submitted that Mrs. Ansari suffered a partial inability to carry on a normal life pursuant to section 2 (b) and (c).

Section 2 of the Schedule states as follows:

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(b) mobility activities in which the person ordinarily engaged before the accident;

In the case of Dhaliwal the arbitrator held that it is only necessary to prove that the applicant suffers an impairment that results in a substantial inability to engage in one of the subsections of section 2 in order to meet the test under the section.³⁸ I agree with this conclusion.

Counsel for the Insurer conceded that there was no issue as to whether Mrs. Ansari was the primary caregiver for her daughter at the time of the accident. It was further conceded that the daughter was less than sixteen years of age at the time of the accident, having been born on March 25, 1984.

Counsel agreed that if Mrs. Ansari was unable to meet the test pursuant to section 18 of the Schedule, she would be unable to meet the test for "other disability benefits" under section 19 of the Schedule, and accordingly, this separate issue was not before me.

Mrs. Ansari testified that prior to the accident she performed the sweeping, dusting, making of beds, dishes, laundry and cooking at her home. She testified that the specific caregiver activities engaged in were preparing her daughter’s food and helping her with her studies. Again Mrs. Ansari's testimony was inconsistent. She initially testified that at the time of the hearing, her daughter did the laundry. Later she indicated that she herself could do the light laundry, but not the lifting of the sheets. She indicated that she is unable to prepare meals that take a long time to prepare and needs her daughter’s help. Later she noted that she is able to prepare smaller meals. Mrs. Ansari testified that her daughter now does everything for the family and yet, clearly this is not the case.

Mrs. Ansari conceded that she was able to grocery shop and carry bags. In cross-examination she noted that she was unable to do light housekeeping even though she could bicycle for 30 minutes, because she was unable to do both exercising and housework.

Although Mrs. Ansari testified that she was unable to perform her household tasks, I find that she led quite an active life after the motor vehicle accident, caring for her husband when he had his back operation, attending courses five days a week for three hours each day, as well as attending driving classes until February 3, 1995. She testified that in addition, she was capable of performing her personal grooming activities, driving her daughter to and from school, and doing her grocery shopping.

Mrs. Ansari stated that her psychological problems started when her husband underwent surgery in early 1995. Nevertheless, she was not referred to Dr. Showraki until October 1995, some nine months after the motor vehicle accident. I heard no evidence linking her psychological problems to the accident.

I received limited medical evidence which linked Mrs. Ansari’s physical complaints to any inability to perform her household activities or her mobility activities after September 24, 1995. Dr. Hadian noted that Mrs. Ansari is unable to return to her normal activities.³⁹ Dr. Ogilvie-Harris,⁴⁰ and Anne Carr⁴¹ also made some limited comments in their reports, on which I place little weight, for the reasons noted earlier in this decision. In August 1995, Dr. Ford released her to return to all her activities without restriction, after four more weeks of an active aggressive program of exercise.⁴²

I have received no evidence that Mrs. Ansari was substantially unable to engage in the caregiving activities in which she was engaged at the time of the accident, or in the mobility or household activities that she was ordinarily engaged in prior to the motor vehicle accident.

In all the circumstances, I find that Mrs. Ansari has failed to prove that she meets the tests under sections 2 (b), 2 (c) or section 18 of the Schedule. Accordingly, Mrs. Ansari's claim for caregiver benefits is dismissed.

iii) Is Mr. Ansari entitled to payment of taxi cab fares?

Mr. Ansari claimed payment for taxi fares allegedly incurred to take his daughter to and from school, and for alleged appointments during the month of June 1995.⁴³ He makes his claim for payment of these expenses pursuant to sections 54, or in the alternative under section 40(5)(e) of the Schedule.

Mr. Ansari testified that prior to the accident he and his wife, together with a friend, took their daughter to school. Later in cross-examination, he testified that his wife predominantly took their daughter to school. The receipts filed in this proceeding spanned the period from June 7, 1995 until June 29, 1995. Mr. Ansari testified the same individual drove his daughter to school each day.

Mrs. Ansari completed a Professional Driver Education Course conducted by the Ontario Safety League evidenced by a certificate dated March 24, 1995.⁴⁴ She applied for insurance on May 20, 1995 for the period of time from May 21, 1995 until May 21, 1996, on a 1985 Hyundai Stellar. In her Application for Automobile Insurance Mrs Ansari noted that she was first licensed in Canada in January 1995.⁴⁵ Mr. Ansari purchased a motor vehicle for Mrs. Ansari in March 1995.

In order for Mr. Ansari to be successful in his claim under section 54, he must show that the expenses were reasonably incurred by or on his behalf in caring for his dependants, as a result of his injuries sustained in the accident. This section only applies if Mr. Ansari were employed at the time of the accident. I have found that Mr. Ansari was not employed at the time of the accident. Accordingly, this section would not be applicable.

Section 40(5)(e) of the Schedule refers back to section 40(1)(a) and (b). The sections state as follows:

40 (1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,

(a) to reduce or eliminate the effects of any disability resulting from the impairment; and

(b) to facilitate the insured person’s reintegration into his or her family, the labour market and the rest of society.

(5) The payments required under this section include payment of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for the purpose referred to in clause (1)(a) or (b) for,

(e) other goods and services that the insured person requires.

I find that Mrs. Ansari was driving as early as March 1995, owned her own car, and was covered by insurance by June 1995 the date when the receipts started for the taxicab. Mrs. Ansari was not working in June 1995. Furthermore, she generally was the individual who took her daughter to school. In my view, in June 1995, it would have been reasonable for Mrs. Ansari to continue to take her daughter to school using her own motor vehicle. Mrs. Ansari however testified that she was unavailable to take her daughter to school in June 1995, due to the fact that her husband had just undergone a serious operation, and she had to care for him. I heard no evidence that Mr. Ansari's operation was related to injuries he sustained in the motor vehicle accident.

In addition, I heard no evidence about Mr. Ansari’s injuries sustained in the motor vehicle accident which would allow me to consider this section of the Schedule.

Accordingly, I find that the taxi cab receipts showing the cab fare to and from the child’s school in the sum of $7.00 per receipt were not reasonable expenses incurred by Mr. Ansari for the purposes referred to in clause 40(1)(a) or (b) of the Schedule, and should not be allowed.

Mr. Ansari claimed additional taxicab expenses. I heard no evidence as to what these expenses were for. I have insufficient evidence before me to determine the reasonableness of this claim pursuant to section 40(5)(e). Accordingly, this claim is not allowed.

Sections 40(1)(a) and (b), and 40(5) require that the Insurer pay for reasonable measures to reduce or eliminate the effects of any disability resulting from the impairment and to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society. I heard no evidence to suggest that Mr. Ansari required the services he claimed pursuant to the section. Accordingly, Mr. Ansari's claim for payment of taxi cab expenses is denied.

Expenses:

Mr. and Mrs. Ansari claim their expenses incurred in the hearing. An arbitrator has discretion under section 282(11) of the Insurance Act to award expenses. Previous arbitration cases have provided guidelines for the exercise of this discretion. Former Senior Arbitrator Naylor stated that it is appropriate to award an applicant his or her expenses unless it is found that the application for arbitration was manifestly frivolous or vexatious, or that the applicant’s conduct unreasonably prolonged the proceedings.⁴⁶

In this case, Counsel for Royal raised the issue of repayment of its filing fee pursuant to section 282(11.2) of the Insurance Act. He raised this issue during his final submissions. Although the issue was raised late in the hearing, there was no objection to its inclusion by counsel for the Applicant.

In the case of Allison,⁴⁷ Director's Delegate Naylor made the following observation, of which I agree:

It is open to an arbitrator to disallow expenses but to refuse to make an order against the insured person under section 282(11.2). While the factors to be considered in each may overlap, the nature of the two awards is different. An expenses award is principally intended to reimburse an insured, to the extent allowed, for the cost of bringing a legitimate application forward and conducting the case in a reasonable fashion. In contrast, an order against an insured person under section 282(11.2) is more in the nature of a penalty. It can only be made if the arbitrator finds that the application for arbitration was frivolous, vexatious or an abuse of process and in no other circumstances. The discretion of the arbitrator is limited to determining whether an amount should be levied in these specific circumstances, and, if so, how much.

In this case, I find that Mr. and Mrs. Ansari’s claims were highly exaggerated and generally without merit. Mr. Ansari made several misrepresentations in his testimony which went to the heart of the evidence, and which prolonged the hearing. Nevertheless, there was some objective medical basis to Mrs. Ansari’s claim. In addition, the Insurer also prolonged the hearing by questioning both Mr. and Mrs. Ansari more extensively than was necessary about their welfare files.

Accordingly, in all the circumstances, I am prepared to exercise my discretion to allow the Applicants one-third of their combined expenses of the arbitration.⁴⁸ If the parties are unable to agree on the amount owing, they may apply to the Registrar for an Assessment.

The Insurer's request for a repayment of its filing fee is dismissed, as I had no evidence before me that led me to believe that application for arbitration was frivolous, vexatious or an abuse of process.

ORDER:

Royal Insurance Company is liable to pay statutory accident benefits to Mr. and Mrs. Ansari pursuant to section 268(2) of the Insurance Act.
Mr. Ansari's claim for income replacement benefits from January 15, 1995 onwards, pursuant to section 7(1)3.i of the Schedule is dismissed.
Mrs. Ansari's claim for income replacement benefits from September 24, 1995 onwards, pursuant to section 7(1)3.i and ii of the Schedule is dismissed.
Mrs. Ansari qualifies for benefits under section 7(1)2.ii of the Schedule on the basis that she was employed for some period during the 156 weeks before the accident, but she is not entitled to income replacement benefits for the period from September 24, 1995 onwards, pursuant to section 7(1)2.iv, as she did not suffer a substantial inability to perform the essential tasks of her home baking self-employment. Accordingly, her claim for income replacement benefits is dismissed under this section of the Schedule.
Mrs. Ansari's claim for caregiver benefits from September 24, 1995 onwards pursuant to section 18 of the Schedule is dismissed.
Mr. Ansari's claim for taxi expenses pursuant to either section 54 or section 40 (5)(e) of the Schedule is dismissed.
a) Mr. and Mrs. Ansari are entitled to payment of one-third of their combined expenses of this arbitration in accordance with Schedule F of the Dispute Resolution Practice Code--1995 version.