Neutral Citation: 1999 ONFSCDRS 105

FSCO A-015215

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

K. N.

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William Renahan

Heard:

May 3 and 4, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. N represented himself

Ivan Luxenberg for Coachman Insurance Company

Issues:

The Applicant, K. N., claims that he was injured in a motor vehicle accident on May 7, 1993. He applied for statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule.¹ Coachman refused to pay benefits. The parties were unable to resolve their disputes through mediation, and Mr. N applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing opened on October 7, 1996 before another arbitrator. She heard evidence on October 7 and 8, 1996, November 14, 1996 and October 20 and 21, 1997 on the issue of whether Mr. N was involved in an "accident" within the meaning of the Schedule. That arbitrator could not continue with the hearing and I recommenced the hearing on May 3, 1997.

The issues in this hearing are:

1. Was Mr. N involved in an "accident" within the meaning of section 2 of the Schedule on May 7, 1993 and if so, what incidents comprised the accident?

2. Was Mr. N employed or self-employed at the time of the alleged accident?

3. Is Mr. N entitled to weekly income benefits pursuant to section 12 of the Schedule after May 7, 1993?

4. What is the correct amount of the weekly income benefits?

5. Is Mr. N entitled to a special award pursuant to subsection 282(10) of the Insurance Act?

6. Is Mr. N entitled to his expenses incurred in this arbitration proceeding?

Result:

1. On May 7, 1993, Mr. N was involved in three "accidents" within the meaning of the Schedule. The three accidents were: the bump in the car wash, the collision as Mr. N left the car wash parking lot and the first collision on Dundas Street. The assault on Mr. N was not an accident. The impact when Mr. N deliberately drove his vehicle into another vehicle was not an accident.

2. Mr. N admitted he was self-employed at the time of the accident.

3. Mr. N is not entitled to weekly income benefits pursuant to section 12 of the Schedule after May 7, 1993.

4. Since Mr. N is not entitled to a weekly income benefit, it is not necessary to determine the amount of that benefit.

5. Mr. N is not entitled to a special award pursuant to subsection 282(10) of the Insurance Act.

6. The issue of entitlement to expenses of the arbitration proceeding is deferred.

Background:

On May 7, 1993 Mr. N took his rented taxi cab to a car wash where he was involved in a minor collision with another vehicle while on the car wash conveyor belt. Mr. N and Rui Gregorio, the driver of the other vehicle, left the car wash, parked their vehicles and argued. Mr. Gregorio physically assaulted Mr. N. The parties re-entered their vehicles and collided once in the car wash parking lot and once at the parking lot exit on Dundas Street. Mr. Gregorio got out of his vehicle on Dundas Street. Mr. N used his taxi to push Mr. Gregorio's vehicle under a tractor trailer. The arbitrator at the hearing only heard evidence on the issue of which incidents were "accidents" within the meaning of the Schedule.

Preliminary Matters:

Use of Transcripts:

Coachman provided this office with transcripts of the prior proceeding. The arbitrator at the first hearing confined the evidence to that relevant to the issue of which incidents were "accidents" within the meaning of the Schedule. I summarized my findings, which I set out below, and I noted Mr. N's objections to my findings. In my view, the evidence on the issue of which incidents were "accidents" was straightforward and not in dispute. Some of Mr. N's objections to my summary of the evidence were irrelevant and I did not take them into account. I noted Mr. N's relevant objections in my summary and incorporate them in my findings of fact. Since the factual findings were those I gathered from the first hearing, as amended by Mr. N's objections, I did not feel that my ability to hear the case was compromised. Both parties agreed that exhibits taken at the first hearing would be exhibits in this recommencement.

The transcripts revealed unusual behaviour on the part of Mr. N and I reviewed the transcripts to deal with the issues of whether Mr. N was mentally competent to represent himself, whether I should arrange security and what I should do if Mr. N disrupted the hearing.

Mental competency:

Section 10 of the Dispute Resolution Practice Code provides that:

A minor, or a person who is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c.30, must be represented by one of the following:

a) a litigation guardian;

b) parent or legal guardian of the person's property, as the case may be; or

c) a court-appointed guardian.

Section 2 of the Substitute Decisions Act sets out a general presumption of capacity, which may be relied upon by a third party "...unless he or she has reasonable grounds to believe that the other person is incapable." Section 6 of that Act defines "competency" as:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

A number of times during the first hearing Mr. N swore at and insulted the arbitrator and Coachman's lawyer. He accused the driver of the tractor trailer of taking bribes from Coachman. He commenced legal proceedings against most of the participants in the hearing. On the other hand, at times he made sensible and persuasive submissions.

Like myself, the arbitrator at the first hearing was concerned about Mr. N's mental competence. She directed him to provide a doctor's letter that he was competent to proceed. Mr. N consulted Dr. P. Nynkowski who performed a psychiatric consultation. Dr. Nynkowksi reported on April 30, 1997 that Mr. N was under considerable stress due to the court proceeding but he did not see any medical reason why he could not represent himself. This is the only expert opinion on Mr. N's mental competency and I find that Mr. N was competent to represent himself.

Conduct of hearing:

The transcripts disclosed that at times Mr. N was disruptive. The arbitrator had difficulty controlling the hearing. I was concerned about what measures I should take if I had to deal with disruptive behaviour. I note the following incidents:

Hearing day of October 7, 1996

As the arbitrator was attempting to clarify the issues as set out in the pre-hearing arbitrator's letter, Mr. N advised the arbitrator that the pre-hearing arbitrator had misled him and that he had issued a claim against him in the Ontario Court (General Division).

As the arbitrator was trying to sort out which documents the parties had not exchanged, Mr. N claimed that Mr. Luxenberg was involved in a conspiracy and was dishonest.

When the arbitrator asked for the relevance of letters Mr. N wanted to introduce, Mr. N argued that he did not want to be pushed and that if the arbitrator was going to push him he wanted another arbitrator.

Mr. N objected to a resumption date chosen by the arbitrator because he thought the period between hearing witnesses was excessive and that he might have another hearing on the scheduled day. He told the arbitrator he would bring a claim against her to stop the conspiracy. He accused the arbitrator of fraud and said he would not allow her to proceed.

The arbitrator asked Mr. N for his opening remarks and he told the arbitrator that she was a fascist. The arbitrator took Mr. N's remarks as an allegation of bias and asked for his submissions. He asked for another more experienced and older arbitrator because the arbitrator was not fair or reasonable. He accused her of continuously interrupting and pushing him. At this point it was 3:00 p.m. Neither side had made an opening statement.

During Mr. N's cross-examination of the driver of the tractor-trailer on an undisputed point, the arbitrator told Mr. N not to repeat the same evidence. Mr. N told the arbitrator not to interrupt him. Mr. N accused the arbitrator of conspiracy. Mr. Luxenberg asked the relevance of Mr. N's questions and Mr. N told Mr. Luxenberg not to interrupt him and that he was a cheater. Mr. N accused Mr. Luxenberg and the witness of being involved in a conspiracy and that Mr. Luxenberg was giving the witness hand signals. At 5:00 p.m. the arbitrator tried to find out if Mr. N would finish so that the witness would not have to return. Mr. N accused the arbitrator of involvement in the conspiracy. Later he accused Mr. Luxenberg of altering documents.

Before adjourning for the day, the arbitrator ordered Mr. N to give Mr. Luxenberg the documents he had which related to the accident. Mr. N said he would not listen to the arbitrator and that she was not neutral. The arbitrator persuaded Mr. N to prepare a list of documents he had which she would look at the next day. Hearing day of October 8, 1996

The arbitrator explained the recesses she had scheduled for the day and asked Mr. N if he was agreeable. Mr. N advised the arbitrator that he had commenced a court action against her and attempted to serve her with a document. The arbitrator recessed the hearing.

The arbitrator returned after the recess and told Mr. N that if he did not have a list of documents he relied on, she would hear submissions from Mr. Luxenberg concerning the weight she should attach to any documents Mr. N tendered. Mr. N told the arbitrator there was an action against her and the arbitrator tried to stop Mr. N from interrupting her. Mr. N told the arbitrator to stop interrupting him eight times. The arbitrator recessed for ten minutes. On resumption, Mr. N continued his cross-examination of the tractor-trailer driver. During cross-examination he mentioned that he had commenced an action against this witness. The arbitrator said that she did not approve of intimidating a witness. Mr. N asked the arbitrator to withdraw the remark and then accused her of dishonesty. He told her to tell Mr. Luxenberg to shut up.

Mr. N accused Mr. Luxenberg of laughing at him and he cursed Mr. Luxenberg and his mother. After two pages of transcript the reporter said "I can't keep up with three people yelling and screaming." The arbitrator asked Mr. N to stop yelling and Mr. N accused the arbitrator of conspiracy. During his testimony, Mr. N asked the arbitrator why she was looking at Mr. Luxenberg and then accused her of helping him. He said Canadians were the most dishonest people in the world, Mr. Luxenberg bribed the witnesses and the Commissioner received bribes from the law firms.

Before lunch Mr. N told the arbitrator she did not listen. After lunch the arbitrator refused to take documents from Mr. N as exhibits because they were not relevant. Mr. N argued that they were relevant and the arbitrator asked Mr. N not to raise his voice. Mr. N called her a cheat, dishonest and shameful for running away when he tried to serve her with a Notice of Action and said that Hitler was more honourable.

Mr. N summoned a police constable who refused to testify without counsel because Mr. N had sued him. The arbitrator asked Mr. N if he had any objection to the witness having counsel and a discussion ensued in which Mr. N addressed the arbitrator as "cheater." The arbitrator excused the constable so that he could return with counsel on another date. Mr. N said that he would sue the constable again. Throughout the discussion concerning the return date, Mr. N pointed at the arbitrator, swore at her and told her she should be ashamed of herself. Mr. N left the hearing room and the arbitrator adjourned to the next day.

Hearing day of October 9, 1996

Mr. N did not appear at this sitting and Mr. Luxenberg asked that the application be dismissed for abuse of process. The arbitrator made an interim award of expenses for Coachman's costs of the day fixed at $500 payable by Mr. N before the next scheduled resumption date of November 14, 1996.

Hearing day of November 14, 1996

Mr. Luxenberg asked that the application be dismissed on the grounds that Mr. N had not paid the $500 as ordered and because he had abused the process. Mr. N responded by accusing the arbitrator of being a party to a conspiracy. He addressed her as "cheater" and attempted to give her a Statement of Claim. During the exchange which covers five pages of the transcript, the arbitrator told Mr. N about 20 times to sit down and stop throwing papers at her. Mr. N accused the arbitrator of trying to murder him. After further insulting the arbitrator, Mr. N left the hearing room. Mr. N returned and told the arbitrator a number of times that she was "illegal." He swore at her repeatedly. The arbitrator told him that if he continued to use abusive, swearing language the proceeding would be adjourned until she received a written apology from him. Mr. N said he would not apologize to the "filthy bitch." The arbitrator finally persuaded Mr. N to take the witness stand.

During cross-examination Mr. N complained of a little pain in his chest and the arbitrator offered him water. Mr. N told her that he hated her from the bottom of his heart. Mr. N returned from the lunch recess and told the arbitrator that he had to go to the hospital because of problems with his heart. He accused the arbitrator of trying to kill him and swore at her and cursed her a number of times before leaving for the hospital.

Hearing day of October 20, 1997

During the examination of police constable Coles, Mr. N explained that he had sued him for receiving bribes.

Hearing day of October 21, 1997

The parties made submissions without incident.

The arbitrator used most of the first day of the hearing to explain the process to Mr. N, identify the issues and hear the parties argue about whether documentation had been exchanged. On a number of occasions the arbitrator explained to Mr. N the issues, the process of giving evidence and making objections, the process for making submissions and rulings. The arbitrator asked Mr. N questions during his testimony to help him describe which incidents were accidents. Initially she treated his abusive remarks as legitimate submissions upon which she made rulings. Later, when Mr. N became disruptive she coaxed him to participate in a reasonable manner. She also recessed the hearing briefly from time to time in an attempt to restore order. She also ordered Mr. N to pay costs of the day fixed at $500.

On the basis of these transcripts, I found that Mr. N repeatedly disrupted the proceeding and repeatedly failed to comply with the orders of the arbitrator. I determined that if Mr. N made personal or disruptive remarks I would warn him that if he continued I might conclude the hearing and dismiss his application.

Security:

My review of the transcripts also lead me to conclude that Mr. N posed a security risk to the participants of the hearing and I ordered that security guards search all participants for concealed weapons before entering the hearing room on the understanding that if the participants did not agree to the search, I would not allow them into the hearing room. On the second day of the hearing, Mr. N objected to the search. I gave brief reasons for the search then, which I expand on now.

Subsection 9(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended provides:

(2) A tribunal may make such orders or give such directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing, and, if any person disobeys or fails to comply with any such order or direction, the tribunal or a member thereof may call for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose.

The evidence in the transcripts I found relevant to the security issue was:

I found no dispute that on May 7, 1993 Mr. N deliberately drove his vehicle into Mr. Gregorio's vehicle forcing it under a tractor trailer. The undisputed evidence of Mr. N, the driver of the tractor trailer and Mr. Gregorio was that Mr. N reversed and drove ahead into Mr. Gregorio's stationary vehicle three or four times and pushed it ahead approximately ten feet underneath the tractor-trailer.²

Mr. N lost control of his temper at the hearing a number of times. He was extremely abusive to the arbitrator and counsel and expressed extreme anger and hostility.

Mr. N. claimed that the police and members of the Financial Services Commission are parties in a conspiracy to deprive him of his rights. He accused the arbitrator of trying to murder him.

During a verbal exchange on November 14, 1996, the arbitrator told Mr. N on about 20 occasions that he was not to throw papers at her, that he was to sit down, that he was to stay away from her desk and that he was to stop yelling at her.

In his submissions in October 1997, Mr. N explained his loss of temper by saying that he was an extremely frustrated man because he did not have any money.

On the basis of this evidence, I found a risk that Mr. N might injure someone at the hearing if he had a concealed weapon. Considering the unusual circumstances of this case, I ordered that all participants who wanted to enter the hearing room had to undergo a search. Two security officers performed a search with a metal detector wand. Mr. N advised me that the security officers performed the search in a professional manner.

Bias and conflict of interest:

Mr. N testified and made submissions on the first day of this hearing. Although his evidence and submissions were cogent, much of it was irrelevant to the issues. At the conclusion of his testimony I reminded him what the issues were and told him that he would have another opportunity to address those issues the next day. That evening Mr. N sent me by facsimile transmission a document entitled "Notice of Claim." It purports to be notice that an action would be commenced against me for my alleged tortious conduct. Among other things, it alleges that the claim puts me in a conflict of interest with Mr. N.

In 1997, a number of parties applied pursuant to section 140 of the Courts of Justice Act, R.S.O. 1990, c.43 to the Ontario Court (General Division) for an order declaring Mr. N a vexatious plaintiff. On March 17, 1997 the Court ordered that all actions commenced by Mr. N be stayed and that no further actions be commenced by Mr. N except by leave of a judge of the Court. Subsection 140(4) provides that leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and there are reasonable grounds for the proceeding. Mr. N admitted that the order was valid and that he had not obtained leave from a judge to bring an action against me. I therefore consider the Notice of Claim I received a nullity and that I am not in a conflict of interest with Mr. N.

I also considered Mr. N's allegation that I was biased or appeared to be biased. Among other things he claimed that I tried to cheat him and defraud him and tried to cover up criminal acts by police involved in torturing him. He claimed that my warnings to dismiss his claim if he lost control of his temper were not necessary.

Mr. N produced no evidence of actual bias. The test for reasonable apprehension of bias is whether a reasonable person watching the proceedings would think I was biased. I believe a reasonable person watching the proceedings would not think I was biased against Mr. N.

Abuse of Process:

Mr. N has tried to commence law suits against the pre-hearing arbitrator, the first hearing arbitrator, the former registrar of the Ontario Insurance Commission, the current registrar of the Financial Services Commission and myself.

At the opening of the hearing, Mr. N questioned a ruling I made and I warned him that if he questioned my rulings I might conclude the hearing. During his testimony I warned him that much of his evidence concerning his allegation that the Coachman adjuster was dishonest and malicious and had abused him was not relevant to the issues and that if he did not present any relevant evidence by 3:00 p.m. I would stop his testimony. On the second morning, Mr. N argued that it was unnecessary for me to have warned him twice the day before. During his argument that I was biased he accused me of fraud, dishonesty, malice, cruelty and inhumanity. He claimed that this office had tried to poison him and that I had conspired to cover up crimes committed by the police. At the conclusion of his submissions on bias I advised him that because he was making submissions on bias, I had listened to his personal remarks without interruption, but that if he made any more personal or insulting remarks I might conclude the hearing.

Mr. N concluded his evidence on the morning of the second day of the hearing and Mr. Luxenberg had started his cross-examination of Mr. N when Mr. N started yelling. Among other things, he yelled that I was a fraud and had conspired with Mr. Luxenberg. Before I could finish warning Mr. N, he yelled "Don't give any more warning. Do what you want. I know what kind of people you are. I know you are highest criminal in world. If you want, dismiss claim, go." I concluded the hearing.

It is unusual when a person seeking the assistance of a tribunal repeatedly shows his contempt for the tribunal by insulting it and refusing to comply with its orders. In Ontario v. PaulMagder Furs Limited, 1991 CanLII 7053 (ON CA), [1991] 6 O.R. (3d) 188, Magder appealed from an order holding it in contempt of an order to close its stores on Sunday in compliance with the Retail Business Holidays Act, R.S.O. 1980, c. 453. The Court of Appeal adjourned the appeal until Magder purged its contempt by complying with the lower court's order. Brooke J.A. wrote:

In my opinion, it is an abuse of process to assert a right to be heard by the court and at the same time refuse to undertake to obey the order of the court so long as it remains in force. That is this case. Magder's disobedience from the beginning and now is such that it impedes the course of justice and impairs the ability of the court to enforce its orders. It is a general rule that a party in contempt will not be heard in the proceeding until the contempt is purged.

Although I see no purpose in invoking the contempt proceedings under the Statutory Powers Procedure Act, I find this quotation and the principles behind contempt proceedings helpful.

In Practice and Procedure Before Administrative Tribunals³ the authors write:

The offence of contempt exists primarily as a necessary incident to the rule of law. It exists in order to protect society against threats to the administration of justice. Actions which undermine the ability to resolve disputes in the courts threaten the rule of law.

The object is always compliance and not punishment.

Subsection 23(1) of the Statutory Powers Procedure Act provides as follows:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A number of times during the hearing when Mr. N started to make personal remarks I warned him that I might conclude the hearing if he did not stop. On those occasions he did stop. However, on this last occasion Mr. N did not stop after I tried to warn him and he continued yelling abuse. In view of my warnings and the continual yelling, I concluded that if I tried to proceed with the hearing Mr. N would continue with his abusive conduct. I concluded that Coachman would not have a fair opportunity to respond to Mr. N's claim. As well, the yelling, swearing and insults amounted to an abuse of this process.

In other circumstances, I would adjourn the hearing until I was satisfied that Mr. N would not act with contempt towards this tribunal. I would also order that Mr. N make any submissions on this issue in writing. I would also invite Coachman to make submissions on any other terms of an adjournment. However, Mr. N had finished presenting his evidence when I concluded the hearing, and I find that he did not present sufficient evidence to succeed.

EVIDENCE AND ANALYSIS:

Accident:

My summary of the evidence which I read to the parties together with their comments is as follows:

1. On the morning of Friday, May 7, 1993, Mr. N took his rented taxi cab to a car wash on Dundas Street in the City of Toronto before starting his work day. As his vehicle was pulled through the car wash it came into contact with a Mazda vehicle operated by Mr. Rui Gregorio. After the vehicles left the car wash Mr. N and Mr. Gregorio parked and inspected their vehicles. Mr. N could not see any damage.

Mr. Luxenberg had no comments on the summary. Mr. N said that he suffered injuries in this accident and that damages to the other car were minor.

2. Mr. N and Mr. Gregorio argued and Mr. Gregorio assaulted Mr. N. Mr. Gregorio pushed Mr. N against his vehicle and punched Mr. N in the nose. As Mr. N turned away, Mr. Gregorio punched him in the neck and back. He also struck him three times behind the left ear. He also kicked Mr. N in the back of his legs and Mr. N fell to the ground. Mr. N was "blurry" and had "vertigo" because of the punches to the head.

Mr. Luxenberg agreed with my summary. Mr. N did not recall whether Mr. Gregorio punched him in the neck and back. He said he was not "blurry."

3. Mr. Gregorio attempted to leave the car wash property and was stopped on Dundas Street and attempting to turn left when Mr. N drove into the driver's side of Mr. Gregorio's vehicle.

Both parties agreed with this summary.

4. Mr. Gregorio turned right and Mr. N followed him onto Dundas Street. Mr. Gregorio stopped and Mr. N drove into the rear of his vehicle.

Both parties agreed with this summary.

5. Mr. N reversed and drove ahead and into Mr. Gregorio's stationary vehicle three or four times and pushed it ahead approximately ten feet underneath a tractor-trailer parked on Dundas Street.

Mr. Luxenberg agreed with this summary. Mr. N said that he struck the vehicle one or two times and pushed it a distance of two to four feet.

Mr. N also submitted that I should consider other evidence, however, I did not see how it was relevant to which of these incidents were "accidents" within the meaning of the Schedule. As well, even if I accepted Mr. N's criticism of the summary, the changes are not relevant to the issue.

Coachman conceded that incidents one, three and four were "accidents" within the meaning of the Schedule. Mr. N argued that all the incidents were one "accident."

"Accident" is defined in the Schedule as:

. . . . an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device.

The facts surrounding the assault are comparable to those in Hanlon and Guarantee Company of North America, (March 18, 1997, OIC P95-00003) in which an assault followed a collision between two vehicles. In that case Director's Delegate Draper said:

In Mr. Hanlon's case, the only role played by the use or operation of an automobile was to create an atmosphere of hostility between him and Mr. Daly.

This was not a situation where someone lashed out as an immediate reaction to the driving incident. Mr. Hanlon and Mr. Daly both took a number of intentional actions for which they bear responsibility. While it is possible to say that the driving incident provoked or motivated the assault, I am not persuaded that there is a causal relationship, even an indirect one, between the use or operation of an automobile and Mr. Hanlon's injuries.

In this case, Mr. N and Mr. Gregorio parked their vehicles and inspected the damage after the accident in the car wash. This led to an argument and to Mr. Gregorio punching Mr. N. For the reasons expressed in Hanlon, I find that this was not an "accident."

Even if I accept Mr. N's most recent recounting of the final incident, I find that reversing his vehicle and driving it into another vehicle one or two times to push it a distance of two to four feet underneath a tractor-trailer is not an "accident." In Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, the Supreme Court considered the definition of "accident" in the British Columbia no-fault scheme. That definition includes the words "in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle. . .". The Court held that the first part of the test is to ask whether the accident resulted from the ordinary and well-known activities to which automobiles are put. Since "use or operation of an automobile" is included in the Ontario definition of "accident," I find that the first question is whether the injury arose from the ordinary and well-known activities to which automobiles are put. In my view, reversing a vehicle once or twice and driving it into a parked vehicle with sufficient force to push it underneath a truck is not an ordinary and well-known activity to which automobiles are put. Accordingly, I find that any injuries Mr. N may have suffered in the last incident were not caused by an "accident."

Disability:

Mr. N testified that he worked full time as a taxi driver at the time of the incidents and that he returned to part-time work in September 1993 and continued to work part-time until April 1994 when he was involved in another accident. He said that because of injuries to his back he could not sit for long periods in his taxi and he could not lift heavy things.

He testified that he suffered injuries to his back, head, eyes, ears and thighs. He testified that his injuries are documented in the OHIP report and include tension headaches and anorexia. He did not give any credible detail concerning any disability.

The documentary evidence he filed not only failed to substantiate his claim, it demonstrated his unreliability. For example, Mr. N claimed that the arbitrator tried to murder him at the first hearing by poisoning his water. He filed a clinical note from an unidentified person dated February 10, 1997 in which the writer reported that the patient claimed that he saw his family doctor for a urine test because he was in court last week and someone poisoned his water.

Another example of Mr. N's documentation which showed that he was unreliable is his claim that he had broken vertebrae. He filed documents concerning a complaint he made to the College of Physicians and Surgeons. He claimed that his family doctor had failed to properly treat him for broken neck and back bones. The doctor responded to the College that at no time did he advise Mr. N that he had broken neck and back bones.

Mr. N is not a reliable witness. He called no witnesses to support his claim. The documents he filed further demonstrated his unreliability as a witness.

Causation:

Even if Mr. N established that he was disabled from driving a taxi cab, he did not advance any evidence to show that the disability was caused by injuries sustained in incidents numbered one, three and four.

Amount of benefit:

Mr. N provided no evidence relevant to the calculation of the amount of any weekly income benefit. He tendered taxi run sheets for November 1991. Since the accident was 18 months later and since the run sheets did not contain complete calculations as to what Mr. N's total income and total expenses were for the period, I did not accept them as relevant to the issue of how much Mr. N' income and expenses were for the four weeks or 52 weeks preceding the accident. Mr. N tendered no other financial evidence.

As well, he tendered no evidence as to how much income he earned after he returned to part-time work in September 1993. Where the insured earns income subsequent to the accident, the onus is on him to show what that income is so that the insurer can calculate the proper deduction under section 15.

According to paragraph 12(7)1 a person's gross weekly income is deemed to be at least $232. If Mr. N was entitled to a weekly income benefit, he would be entitled to 80 per cent of the deemed gross weekly income for the period commencing one week after the accident, May 14, 1993, until he started part-time work in September 1993. However, since the onus is on Mr. N to establish his part-time income, and since he presented no evidence on that issue, I find that the section 15 deduction for post-accident income would eliminate any weekly income benefit after September 1993.

Special Award:

I heard no evidence that Coachmen unreasonably withheld or delayed payment of benefits. Accordingly, I find no grounds for ordering a special award under subsection 282(10) of the Insurance Act.

EXPENSES:

I heard no submissions on expenses. The issue is deferred.

June 10, 1999

William Renahan

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 105

FSCO A-015215

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

K. N.

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The application for arbitration is dismissed. Mr. N is not entitled to weekly income benefits pursuant to section 12 of the Schedule after May 7, 1993.

2. The issue of entitlement to expenses of the arbitration proceeding is deferred.

June 10, 1999

William Renahan

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Although I accepted Mr. N's subsequent submission that he only drove into the vehicle one or two times and only pushed it a distance of two to four feet, this is the information I had at the time I was faced with the decision as to whether I should make arrangements for security.
3. 3Macaulay and Sprague, vol. 2 (Scarborough: Thomson Canada Limited, 1997), at 29A.2