FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 1999 ONFSCDRS 112
FSCO: A98-000497
BETWEEN:
GEORGE T. LEBLANC Applicant
and
JEVCO INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Deena Baltman
Heard: May 31 and June 1, 1999, in St. Catharines, Ontario
Appearances: Robert P. Budgell for Mr. Leblanc Chris Blom for Jevco Insurance Company
Issues:
The Applicant, George T. Leblanc, was severely injured in a motorcycle accident on July 26, 1996. Jevco paid him income replacement benefits of $185 per week under the Schedule.1 Mr. Leblanc claims that he is entitled to a higher benefit rate based on an offer of employment. Jevco disputes whether there was a "legitimate contract of employment," as required under section 7 of the Schedule.
If I find no legitimate contract existed, Mr. Leblanc's alternative argument is that he is entitled to a higher rate based on the casual labour that he performed during the four weeks preceding the accident. Jevco argues that no such employment existed.
The issues:
Was Mr. Leblanc entitled at the time of the accident to start work under a legitimate contract of employment?
Alternatively, was Mr. Leblanc employed during the four weeks preceding the accident? If so, at what rate?
Result:
Mr. Leblanc was not entitled at the time of the accident to start work under a legitimate contract of employment.
Mr. Leblanc was not employed during the four weeks preceding the accident.
Background:
Mr. Leblanc is 47-years-old and lives in St. Catharines. After completing high school, he trained and became certified as a Class A licensed auto mechanic. He worked almost continuously as a mechanic from 1976 until 1992, largely among various auto dealerships in the areas of St. Catharines and Welland. For several years Mr. Leblanc and his father ran an automotive repair shop, called Terry Auto Clinic.
In 1993 Mr. Leblanc was diagnosed with hydrocephalus, a condition marked by an excessive accumulation of fluid in the brain. His condition was associated with a variety of neurological symptoms, including loss of balance and fine motor control, severe headaches, mood changes, fatigue and, in the final stages, incontinence. He required a total of four surgical procedures. The shunt which was initially inserted to correct the problem became blocked, requiring a second shunt to be placed. This in turn led to a subdural haematoma which required further decompression, and, ultimately, the removal of the non-functioning shunt.
Mr. Leblanc believes that the hydrocephalus resulted from two assaults in 1988, when he was working at an automotive shop and was involved in several physical altercations with another employee.
As a result of these medical complications, Mr. Leblanc was largely disabled from working in the years following 1992, except for a short stint in 1994. At various times, he received UIC, welfare or CPP benefits. He and his wife separated on Valentine's Day in 1994, and have since divorced. His four children now live with his ex-wife.
On July 26, 1996, Mr. Leblanc was involved in the motorcycle accident which gave rise to this claim. He was backing his motorcycle out of a friend's driveway when he saw a car approaching at a high rate of speed. To avoid a collision, he accelerated forward, not realizing that he had inadvertently left the sidestand down. As a result, the bike flipped into the air and threw Mr. Leblanc down on his right side, resulting in a serious hyperextension injury to his right knee.
Mr. Leblanc was diagnosed at the hospital with a severe comminuted tibial fracture. He was hospitalized for one week and has required four surgical procedures. The fracture united poorly, leaving him with an unstable knee, malalignment of his leg, unrelieved pain, and post traumatic arthritis. He walks with an uneven gait and will eventually require knee replacement surgery. A defence medical concluded that he will never return to work as an auto mechanic.
Alleged Contract of Employment:
Mr. Leblanc alleges that shortly before this accident, he received an offer of employment from Robert Ferraro, owner of Ferraro's Auto Service, to work as a full-time mechanic beginning in September 1996, at the rate of $22.50 per hour. If this is true, it would result in a much higher weekly income benefit than the minimum of $185 that Jevco previously paid Mr. Leblanc based on his employment in the 156 weeks preceding the accident.
In order to qualify for this higher benefit, Mr. Leblanc must demonstrate, according to subsection 7(1)3 of the Schedule, that he "was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing... "(my emphasis).
Mr. Leblanc's story is this. He first met Mr. Ferraro approximately 12 years ago, when Mr. Ferraro worked as an apprentice at Terry Auto Clinic. They developed a mutual respect for each other's mechanical abilities and eventually became friends as well. After he completed his apprenticeship, Mr. Ferraro started his own shop - Ferraro's Auto Service.
By 1996, Mr. Leblanc wanted to make some money and "get [his] life together." He and Mr. Ferraro agreed that he would work at Ferraro's Auto Service on a casual basis, and be paid in cash. They continued in this arrangement from January until June of 1996, and then decided to make a more formal arrangement whereby Mr. Leblanc would work full-time, beginning in September 1996.
Around the same time as these arrangements were allegedly being made, Mr. Leblanc was notified by his bank that his VISA card was overextended and he would be granted no further credit. When he approached the bank for a loan, he was told he needed evidence of employment.
Therefore Mr. Ferraro provided a letter dated June 13, 1996, confirming their alleged agreement. The relevant portion of the letter states:
This is to say that upon an evaluation of your performance during your probationary period, a permanent full-time position as Class "A" Technician will be made available to you commencing Tuesday, September 3, 1996. Rate of pay will be $22.5