Neutral Citation: 2001 ONFSCDRS 77

FSCO A00-000214

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOSE M. DACOSTA

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Joyce Miller

Heard:

February 26 and 27, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances:

Rene A. Clonfero for Mr. DaCosta

Joan Takahashi for Dominion of Canada General Insurance Company

Issues:

The Applicant, Jose M. DaCosta, was injured in a motor vehicle accident on April 25, 1997. He applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Dominion declined to pay Mr. DaCosta a weekly income replacement benefit on the basis that he was not "employed" pursuant to section 4 of the Schedule. Mr. DaCosta's position was that at the time of the accident he was employed by Torbridge Construction Ltd. ("Torbridge"). The parties were unable to resolve their disputes through mediation, and Mr. DaCosta applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. At the time of the car accident was Mr. DaCosta "employed" pursuant to section 4 of the Schedule?

Result:

1. At the time of the car accident Mr. DaCosta was not "employed" pursuant to section 4 of the Schedule.

EVIDENCE:

Mr. DaCosta presented his case through affidavit evidence and filed exhibits. At the arbitration hearing he was cross-examined on his affidavit by Dominion's counsel. Mr. Carmen Giardino, President of Torbridge, and Ms. Susen Abraham, an occupational therapist were called by Dominion. As well, Dominion filed exhibits and written submissions.

Mr. DaCosta's Evidence

Mr. DaCosta, who is 41 years old, has worked in the construction industry for over 15 years. On July 12, 1996, approximately nine months before the car accident, Mr. DaCosta fractured his lumbar spine while working as a jackhammer operator for Torbridge. At the time of the car accident, Mr. DaCosta was not working and was collecting WCB² benefits.

Mr. DaCosta testified that he normally got his construction jobs through the union or from the recommendation by a friend. Either way, before he could start a job he had to get a "clearance slip" from the union to be presented to the employer. He could not be hired by an employer without the union's clearance slip.

Mr. DaCosta stated that he got his job at Torbridge through the assistance of a friend, Tony Carrera. Mr. DaCosta stated that when he was hired by Torbridge he understood from the supervisor, "Mr. Moses," that his employment contract was one of indefinite duration as long as there was work available.

Mr. DaCosta testified that he worked for Torbridge in 1995 from April to September and was laid off because there was no more work for him. From September 1995 to October 1995 and in December 1995 he worked for Crascan Construction Ltd. He was laid off for the winter. In April 1996 he was rehired by Torbridge. He stopped working in July 1996 because of his work-related injury.

Mr. DaCosta stated that prior to the car accident he had made good progress in recovering from his work-related injury and was preparing to return to modified work. Mr. DaCosta stated that he understood from his WCB case worker, Diana Danilko, that he would be returning to work at Torbridge. In support of this belief he presented a letter, dated February 10, 1997, from Ms. Danilko to Mr. Carmen Giardino, President of Torbridge.

In this letter Ms. Danilko confirmed her February 5, 1997 conversation with Mr. Giardino. She stated that Mr. Giardino had indicated that his company would be able to accommodate Mr. DaCosta "in a modified position." She confirmed that Torbridge would be "rehiring" workers approximately April 1, 1997 following the seasonal layoff and that she was to contact Mr. Giardino by March 31, 1997 "to discuss a tentative start date." She stated that it was her understanding that Mr. Giardino was willing to offer Mr. DaCosta his pre-accident wage of $25.58 per hour. She concluded by asking Mr. Giardino to confirm in writing his willingness to accommodate Mr. DaCosta in a "suitable position."

Mr. Giardino did not respond to this letter.

Mr. DaCosta stated that he was to meet with another WCB case worker, Mr. D. Lewicki, on April 28, 1997 to confirm his work duties at Torbridge. Unfortunately, he was unable to attend the meeting because of the car accident on April 25, 1997. Mr. DaCosta advised Mr. Lewicki that his injuries from the car accident prevented him from returning to any work at that time or to participate in any vocational rehabilitation.

Mr. DaCosta stated he learned from a WCB memo that on May 6, 1997 Mr. Lewicki had spoken to Mr. Giardino and was told that Torbridge was unable to offer Mr. DaCosta any modified work.

Mr. DaCosta testified that he believed but for the car accident he would have been able to return to work at Torbridge.

Mr. Giardino's Evidence

Mr. Giardino's testimony basically was a reiteration of his affidavit sworn January 24, 2001. In his affidavit Mr. Giardino stated that Mr. DaCosta was a seasonal worker for Torbridge and as a seasonal worker he could be let go on an hour's notice. As well, a seasonal worker who stops working because of a work-related injury is no longer considered to be an employee of Torbridge.

Mr. Giardino stated that Torbridge does not provide a guarantee to its workers that they will be employed for a continuous period of time even after they start work on a particular project.

At paragraph 10 of his affidavit Mr. Giardino stated that:

I have read the WCB memo to file of D. Lewicki dated May 6, 1997 and do verily believe that I advised the WCB caseworker that Torbridge was not able at that time to offer Mr. DaCosta suitable modified work. If a modified job is available in one month, it does not mean that the same or another modified job will be available the next month. Furthermore, even if a worker is hired to work on modified duties, the job may not be available on a continuous basis.

At paragraph 11 of his affidavit Mr. Giardino further stated that:

Torbridge did not consider Mr. DaCosta to be an employee after his work-related injury on July 12, 1996, and did not provide him with a guarantee that Torbridge would have a job available for him when he recovered from his work-related injury. Torbridge may have re-employed Mr. DaCosta, if Mr. DaCosta became capable of working.

Mr. Giardino testified that Mr. DaCosta was a good worker that he had a good work ethic and was a responsible worker. Mr. Giardino testified if a person was a good worker like Mr. DaCosta, he would try to keep him. The normal practice is that the foreman would tell a good worker that when there is work in the future he would be called back. Mr. Giardino testified that the foreman would have told this to Mr. DaCosta.

The foreman, however, would not be able to guarantee any indefinite work. It all depended on the construction contracts that Torbridge would get.

Ms. Abraham's Evidence

Ms. Susen Abraham is an occupational therapist who was hired by Dominion to do a Job Site Analysis and activities of normal living assessment regarding Mr. DaCosta. Ms. Abraham's testimony was basically a reiteration of her reports of May 23, and June 11, 1997 to Dominion.

Ms. Abraham testified that she met with Mr. DaCosta on May 8, 1997 and advised him that she would contact his employer to do a Job Site Analysis. She testified that he informed her that he did not have a job to go to and that he "lost" his job at Torbridge. Ms. Abraham testified that it was her understanding from Mr. DaCosta that he had lost his job because of a work-related injury. Ms. Abraham stated that she was advised by Dominion on May 21, 1997 that it was not relevant to do a Job Site Analysis because Mr. DaCosta did not have a job to go to.

SUBMISSIONS:

Dominion's Submissions

Dominion submitted that Mr. DaCosta was not continuously employed for one year or more with Torbridge from the time he first commenced working for Torbridge in April 1995 to the time of his work-related injury on July 12, 1996. Dominion submitted that there was no ongoing employer-employee relationship between Mr. DaCosta and Torbridge prior to or at the time of the motor vehicle accident on April 25, 1997. Nor did Mr. DaCosta at the date of the car accident have any definite employment arrangements for the future.

Mr. DaCosta's Submissions

Mr. DaCosta submitted that he sincerely understood that his employment contract with Torbridge to be one of indefinite duration and that in his view he was still an employee of Torbridge at the time of the accident.

ANALYSIS AND FINDINGS:

Section 4 of the Schedule states:

The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

1. The insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

2. The insured person,

i. was not employed at the time of the accident,

ii. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

iii. was 16 years of age or more or was excused from attendance at school under the Education Act at the time of the accident, and

iv. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

3. The insured person,

i. 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, and

ii. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract.

Succinctly, section 4 of the Schedule provides that an insured who sustains an impairment as a result of an accident shall be paid an income replacement benefit if the insured was employed at the time of the accident or was employed for at least 26 weeks during the 52 weeks before the accident or 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.

The burden of proof rests with Mr. DaCosta to prove on a balance of probabilities that pursuant to section 4 of the Schedule he was employed at the time of the accident. For the following reasons, I find that Mr. DaCosta has not discharged his onus.

In the case of Sharma and Co-operators³ Arbitrator Palmer held:

I agree that the intention in the minds of the parties at the time of the "temporary lay-off" and their good faith is important. A lay-off by an employer who has no intention of recalling the employee is tantamount to dismissal. Similarly, a laid-off employee who immediately seeks other permanent employment may have no intention of treating the separation as "temporary." The actions of the parties with respect to their employer/employee relationship up to the date of the accident are important. However, I do not believe that the intention of the parties should govern the question of temporality of the lay off: an objective, reasoned interpretation of the individual circumstances is called for. [Emphasis added]

In the case of Madore and Co-operators⁴ Arbitrator Mackintosh followed the reasoning in Sharma when she held:

In my view, individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence. I consider that the state of being employed depends as much upon the intentions of the employer and the employee and the expectations between them, as upon the payment of salary in return for specified work.

In the case of Moussali and Allstate⁵ Arbitrator Jones held the fact that an applicant is collecting WCB benefits at the time of a motor vehicle accident does not determine the employment status of the applicant. He stated that "... one must look beyond the one fact that the applicant is still on WCB total temporary disability benefits at the time of the motor vehicle accident in order to determine the true employment status at the time of the motor vehicle accident." Arbitrator Jones followed the reasoning in Sharma and Madore when he held that:

The question of whether a person is employed at the time of the accident or not is very much dependent upon the facts of each particular case. One must look at intentions and expectations of the parties concerned as well as the objective facts in order to determine if the applicant could be considered "employed" or on a "temporary lay-off" at the time of the accident.

Although these decisions pertain to prior Schedules, I nevertheless adopt the reasoning in these decisions in determining whether a person is employed at the time of the car accident.

Despite the fact Mr. DaCosta sincerely believed that as a good worker he had indefinite employment with Torbridge, as well as the fact that he believed the WCB case worker had arranged for him to return to work at Torbridge in the Spring of 1997, I find that at the time of the car accident he was not an employee of Torbridge.

The evidence shows that Mr. DaCosta was a seasonal worker who was usually laid off in the winter. As a seasonal worker for Torbridge, the evidence clearly shows, that once a worker is "laid-off" there is no expectation on behalf of the worker or Torbridge that Torbridge will call the worker back at a later time. According to Mr. Giardino if there is work available, then a good worker like Mr. DaCosta may be called back. However, seasonal workers were not provided with any guarantee that they would be employed for a continuous period of time. A worker could be "laid-off" at any time with one hour's notice. Similarly, when a seasonal worker stops working for Torbridge because of a work-related injury, he is no longer considered to be an employee of Torbridge.

I received no evidence from Mr. DaCosta that Torbridge had in any objective verifiable way indicated to Mr. DaCosta that after his work-related injury he was still considered to be an employee of Torbridge. Accordingly, I find that when Mr. DaCosta stopped working on July 12, 1996 because of a work-related injury he was no longer an employee of Torbridge as of that date. I therefore find that pursuant to section 4 of the Schedule, Mr. DaCosta was not employed at the time of the car accident.

EXPENSES:

If the parties cannot agree on expenses, I now may be spoken to.

May 28, 2001

Joyce Miller

Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 77

FSCO A00-000214

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOSE M. DACOSTA

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Pursuant to section 4 of the Schedule Mr. DaCosta was not employed at the time of the accident.

2. If needed, the parties may now speak on the question of expenses of this arbitration proceeding.

May 28, 2001

Joyce Miller

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2Workers' Compensation Board
3. 3Sharma and Co-operators Insurance Company of Canada, (OIC A-003840, February 7, 1994)
4. 4Madore and Co-operators General Insurance Company, (OIC A-004305, August 24, 1994)
5. 5Moussali and Allstate Insurance Company of Canada, (OIC A96-001077, July 23, 1997)