Neutral Citation: 1999 ONFSCDRS 212

FSCO A99-000592

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DALE POOLER

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

M. Kaye Joachim

Heard:

October 18, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Gary William Sherwood for Mr. Pooler

William A. McClelland for Guardian Insurance Company of Canada

Issues:

The Applicant, Dale Pooler, was injured in a motor vehicle accident on May 27, 1995. He applied for statutory accident benefits from Guardian Insurance Company of Canada ("Guardian"), payable under the Schedule.¹ Guardian refused to pay benefits on the basis that Mr. Pooler did not have a reasonable excuse for failing to notify Guardian of his intention to claim benefits within 30 days after the accident or as soon as practicable thereafter. The parties were unable to resolve their disputes through mediation, and Mr. Pooler applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Did Mr. Pooler have a reasonable excuse for failing to notify Guardian of his claim for benefits within thirty days after circumstances arose that gave rise to the entitlement to benefits, or as soon as practicable thereafter, under section 59 of the Schedule?

Result:

1. Mr. Pooler did not have a reasonable excuse for failing to notify Guardian of his claim for benefits under section 59 of the Schedule. Accordingly, Mr. Pooler is not entitled to accident benefits.

EVIDENCE AND ANALYSIS:

On the evening of May 27, 1995, Mr. Pooler was crossing Richmond Street West when he was struck by a vehicle owned by Ricardo Silva. He testified that he was struck on the knee, hand, elbow and shoulder. The police were called to the scene and Mr. Pooler was taken by ambulance to St. Michael's Hospital. He was released in the early hours of the morning and walked home. He experienced pain and stiffness in his knee, wrist and leg for several weeks. He also experienced neck pain which he did not immediately relate to the accident as he had been experiencing neck pain and muscle spasms since a previous accident in 1979.

Mr. Pooler's wrist and leg healed soon after the accident but he continues to experience weakness in his knee if he is required to stand or walk for long periods. He returned to work doing repairs, painting and other odd jobs. He testified that he worked a couple of days each week, earning approximately $100 per week in cash. He also performed maintenance work in return for a rent-free apartment.

In November 1995, Mr. Pooler underwent neck surgery to fuse the discs at C5-C6. At this time, he began to consider the impact of the accident on his neck and wondered whether to take any action. He decided to wait to see how the surgery turned out. Approximately six months after the surgery (around May 1996), he began to seriously consider pursuing an action against the driver of the vehicle. In 1997 he had a second operation, fusing the disc at C6-7.²

Mr. Pooler believed he had two years from the date of the accident to pursue any legal action. Approximately two weeks before the expiry of the limitation period, Mr. Pooler obtained the name and license plate number of the driver from the friend who had been with him on the night of the accident. He requisitioned a police report from College Park and obtained the name of the driver's insurance company and the policy number.

On May 26, 1997, Mr. Pooler issued a statement of claim against Ricardo Silva and Guardian Insurance Company. He testified that he personally served a copy of the statement of claim that day on Guardian by leaving a copy with the receptionist. He did not record the name of the person served or complete an affidavit of service at that time. He asked a friend of his, Jimmy Graham, to serve the personal respondent. Mr. Graham served Ricardo Silva on October 1, 1997, and completed an affidavit of service on May 5, 1998.

Mr. Pooler did not hire a lawyer to assist him because of lack of money. However, he obtained assistance from a friend of his who worked as a legal secretary in a law firm. She helped him prepare a standard statement of claim form. He also spoke to a friend of his who was a lawyer, who confirmed to him the two-year time limit for filing a legal action.

In the statement of claim, Mr. Pooler claims, among other things, a declaration that he is entitled to accident benefits. I note that the statement of claim contains at least two statements which appear to be false. First, the claim alleges that Guardian has refused to pay weekly income benefits despite Mr. Pooler having completed the necessary forms. Yet Mr. Pooler testified at this hearing that he first contacted Guardian (apart from the statement of claim itself) after Mr. Graham had served Mr. Silva, which could not have been until after October 1, 1997. I heard no other evidence from Mr. Pooler that he had made a claim for accident benefits before filing his legal action. Second, the action claims that Mr. Pooler has been unable to work since the accident. Yet he testified at the hearing that he has worked a couple of days per week, earning approximately $100 per week (plus the equivalent of rent for his apartment) since the accident.

I find that these obvious contradictions reflect poorly on Mr. Pooler's credibility.

On May 27, 1997,³ Mr. Pooler began receiving physiotherapy from Sports Medicine and Rehabilitation Clinics ("Sports Clinics"). After a few treatments, he gave them the name of Guardian Insurance as the applicable insurer and provided them with