Neutral Citation: 2002 ONFSCDRS 81

FSCO A01-000588

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GRAEME ERSKINE

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Catherine Skinner

Heard:

February 25, February 26 and February 27, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Graeme Erskine

Ralph D'Angelo for Personal Insurance Company of Canada

(The proceedings were recorded by Professional Court Reporters Inc.)

Issues:

Graeme Erskine claims that he was involved in a motor vehicle accident on October 10, 2000. He applied for statutory accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the Schedule.¹ Personal denied Mr. Erskine's claim for benefits. The parties were unable to resolve their disputes through mediation, and Mr. Erskine 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. Was Graeme Erskine involved in an accident as defined in section 2 of the Schedule?

2. Is Graeme Erskine entitled to income replacement, medical and housekeeping and home maintenance benefits claimed under sections 4, 14, 22 of the Schedule and the cost of a report claimed under section 24 of the Schedule?

3. Is Graeme Erskine entitled to a special award under subsection 282(10) of the Insurance Act because the Insurer unreasonably withheld or delayed the payment of benefits?

4. Is Personal entitled to an award under subsection 282(11.2) of the Insurance Act because Mr. Erskine filed an application which is frivolous, vexatious or an abuse of process?

5. Is Graeme Erskine entitled to his expenses of the arbitration hearing?

6. Is Personal entitled to its expenses of the arbitration hearing?

7. Is Graeme Erskine entitled to interest on the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

Result:

1. Mr. Erskine was not involved in an accident as defined in section 2 of the Schedule.

2. Mr. Erskine's application is dismissed.

3. Mr. Erskine is not entitled to a special award under section 282(10) of the Insurance Act.

4. Personal is not entitled to an award under section 280(11.2) of the Insurance Act.

5. Mr. Erskine shall pay Personal one-half of its total arbitration expenses.

EVIDENCE AND ANALYSIS:

Background:

Graeme Erskine claims that he was involved in an incident on October 10, 2000. At that time, Mr. Erskine was not employed and he lived alone. From January to July 2000, Mr. Erskine was employed as a physical damage claims adjuster at DGA/Coachman Insurance. Prior to this, Mr. Erskine had been employed with the CIBC/ The Personal Insurance as an auto claims adjuster. His employment at CIBC/The Personal ended in October, 1999. The circumstances surrounding the termination of Mr. Erskine's employment with the Personal were not clarified at the hearing. On April 1, 2001, Mr. Erskine began working full time at Mr. Renovation in an administrative position. At the time of the incident, Mr. Erskine owned an automobile which was covered by an insurance policy issued by Personal.

Issue # 1 - Was there an accident?

The preliminary issue to be determined in this case is whether there was an accident as defined in Section 2 of the Schedule as follows:

2. (1) In this regulation,

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device; "

As the Applicant, Mr. Erskine must demonstrate, on a balance of probabilities, that he sustained an impairment as a result of an incident involving the use or operation of an automobile.

Mr. Erskine claims that he was involved in an incident on a TTC bus on October 10, 2000 and that the incident caused him an impairment. Personal contends that the incident occurred on a subway train, and not on a bus. In its submission, a subway train is not an automobile as contemplated in the definition of "accident" in section 2 of the Schedule.

In determining whether there was an "accident" in this case, I will address the following questions:

1.) Did the incident occur on a TTC bus?

2.) Did Mr. Erskine suffer an impairment?

3.) Is Personal estopped from relying on the definition of "accident" in this case ?

1. Did an incident occur on a TTC bus?

EVIDENCE

Graeme Erskine testified that he was involved in an incident on a Kipling Avenue TTC bus shortly after 9:00 a.m. on October 10, 2000. Mr. Erskine states that he was standing in the middle of the bus when it stopped suddenly. His head was thrust forward and snapped back. He did not report the incident to the bus driver because he did not feel any pain at the time of the incident. Neither the other passengers nor the bus driver reacted to the incident. Mr. Erskine continued on his journey to the Kipling subway station.

By October 12, 2000, Mr. Erskine indicates that he was experiencing severe pain in his neck and back and was suffering from a headache. He testified that he did not seek medical help on October 12 because he was in too much pain to travel to a medical clinic. Mr. Erskine says that he telephoned the TTC in the morning of October 16, 2000. On the same date, Mr. Erskine attended at the Brown's Line Medical Clinic and sought medical attention from Dr. Sy Hoang Nguyen.

On October 16, 2000 at approximately 9:00 p.m., Mr. Erskine telephoned Personal to report his injury and make a claim. He testified that he told Personal's claims representative that he had been injured on a TTC bus. In the morning of October 17, 2000, Mr. Erskine received a telephone message from Michelle Fernandez, a claims adjuster with Personal. She indicated that Mr. Erskine was not entitled to accident benefits under the Statutory Accident Benefits Schedule (SABS) because the incident occurred on a subway. Upon receiving this message, Mr. Erskine telephoned Ms. Fernandez and reported that the accident occurred on a TTC bus.

During the course of Personal's investigation of this claim, Mr. Erskine resisted all requests for information from the TTC. In cross-examination, he testified that he received advice from a lawyer that he should not provide any information to the TTC, as such information may jeopardize any future tort action which he could commence against the TTC. Mr. Erskine has not commenced an action against the TTC in connection with this incident.

Jasminka Buckvic, claims advisor with Personal, testified at the hearing. She received the telephone call from Mr. Erskine on the evening of October 16, 2000. She identified the documents marked as Exhibit 1, tab 22, and Exhibit 5. Both documents are printouts of computer screens on which Ms. Buckvic recorded the accident details during the telephone conversation with Mr. Erskine. Both documents indicate that the incident occurred on a subway train. Exhibit 5 includes the additional detail that the incident occurred on the "Bloor line."

Ms. Buckvic indicated that she received all of the information about the incident from Mr. Erskine. She did not think that she made a mistake or misunderstood Mr. Erskine's description of the incident. She pointed out that she herself does not use the expression "subway train," but rather refers to such vehicles as "subways." She explained that the use of the expression "subway train" could only have come from Mr. Erskine. She indicated that the accident detail data cannot be changed once it is entered into the system.

Ms. Wendy Willson. a field adjuster with the Personal at the time of the incident, testified at the hearing. She was assigned to Mr. Erskine's file on October 17, 2000. On November 2, 2000 Ms. 6

Willson contacted the TTC to determine whether they had a claim reported in their system in connection with the incident reported by Mr. Erskine. Ms. Willson was advised that there was no claim reported in the TTC's system in connection with an incident on a Kipling Avenue bus on October 10, 2000. The TTC representative also informed Ms. Willson that if a person had called to report an incident, that person would have been transferred to a claims adjuster who would have proceeded to take down details of the incident.

Subsequent to her initial contact with the TTC, Ms. Willson spoke to Wendall Pilgrim, a TTC claims adjuster, who informed her that Mr. Erskine was not returning his telephone calls or responding to his letters requesting information. In this regard, the Insurer refers to TTC's letters to Mr. Erskine of November 27, 2000² and January 2, 2001.³ On January 29, 2001, Mr. Pilgrim wrote to Ms. Willson indicating that the TTC had no record of an incident involving Mr. Erskine on a TTC vehicle on October 10, 2000, and that there was no record of Mr. Erskine having contacted the TTC on October 16, 2000 or at any other time in connection with this incident.⁴

Between November 28, 2000 and February 13, 2001, Personal wrote to Mr. Erskine on several occasions, requesting that he provide additional information about the accident to the TTC. Throughout this period, Personal's correspondence to Mr. Erskine indicates that it had not yet determined his eligibility for benefits because it had not received sufficient detail with respect to the location of the incident.

On February 13, 2001, Personal wrote to Mr. Erskine advising him that, based on its investigation to date, it had determined that the incident of October 10, 2000 occurred on a subway and that he was therefore not entitled to receive statutory accident benefits.

In her testimony, Ms. Willson also referred to Dr. Nguyen's notes.⁵ The notes appear to describe the incident of October 10, 2000 in the following terms, "..on TCC, Subway...abruptly stopped fall forward... "

Ms. Willson testified that Personal determined that Mr. Erskine was not eligible for benefits on the basis of the description of the incident in Dr. Nguyen's notes, the original documents generated by Personal at the time that Mr. Erskine first reported the incident, Mr. Erskine's failure to report the incident to the TTC or to cooperate with its efforts to obtain information, and the absence of any record at the TTC indicating that an incident occurred on the Kipling Avenue bus involving Mr. Erskine on the morning of October 10, 2000.

ANALYSIS

Mr. Erskine has not demonstrated, on a balance of probabilities, that he was involved in an incident on October 10, 2000 on a TTC bus. In support of his claim respecting the location of the accident, Mr. Erskine relies exclusively on his own testimony and on documents that he generated. He did not provide any independent corroborating evidence with regard to the location of the alleged incident.

I find in this case that the uncorroborated evidence of an interested party is not sufficient to meet the onus of proving the location of the incident. This is particularly so when that testimony is marked by inconsistencies on important points. For example, Mr. Erskine testified that he reported to Personal and to Dr. Nguyen that the incident occurred on a TTC bus. The contemporaneous documents created by Personal and Dr. Nguyen suggest that the incident was reported as having occurred on a subway train. Personal's evidence also indicates that Mr. Erskine began reporting that the incident occurred on a bus only after he was informed that incidents on subways are not covered by the Schedule. Mr. Erskine did not call Dr. Nguyen as a witness to clarify this discrepancy between his notes and Mr. Erskine's testimony. Mr. Erskine did not explain the discrepancies between his testimony and the documentary evidence to my satisfaction.

Mr. Erskine was also inconsistent with respect to his contact with the TTC on the morning of October 16, 2000. He first indicated that he telephoned to ensure that there was a record of the incident with the TTC. Later, he indicated that he phoned simply to ask a generic question about accident benefits for persons injured on TTC vehicles and that he did not report the incident. In his written statement to Personal, dated November 1, 2000, Mr. Erskine indicated that he telephoned the TTC and reported that he was injured. There is no record of Mr. Erskine ever contacting the TTC, and I found that his evidence in this regard was unreliable.

The documents created by Ms. Buckvic very shortly after the event indicate that the incident occurred on a subway. I have no reason to doubt Ms. Buckvic's testimony that she recorded the information as she received it from Mr. Erskine. The fact that Ms. Buckvic does not independently recall her telephone conversation with Mr. Erskine is not surprising given the volume of calls that she received in her role as claims adjuster and the passage of time since the incident was first reported. I find that the documents she created at the time that she received the call on October 16, 2000 are reliable, contemporaneous records of the information she received.

In Privett and Allstate Insurance Company of Canada⁶ Arbitrator Seife found that "electronic records produced by [the insurer] in the normal course of business..in conjunction with the testimony of the witness who created them..." constituted reliable evidence of what was reported to the insurance company when the applicant in that case first reported the incident. I prefer the contemporaneous, documentary evidence produced by the Insurer to Mr. Erskine's testimony and I accept that Mr. Erskine first reported the incident as having occurred on a subway train.

Dr. Nguyen's notes also appear to indicate that the incident occurred on a subway. The word "subway" appears in both Dr. Nguyen's notes and in the documents created by Ms. Buckvic. The word "bus" does not appear in any of the documents. Although it is possible that both Dr. Nguyen and Ms. Buckvic misunderstood Mr. Erskine's description of the incident, it is improbable.

In consideration of all of the evidence adduced in connection with this incident and its location, I cannot conclude that Mr. Erskine was involved in an incident on a TTC bus. Although Personal urges me to find that the incident occurred on a subway, it is not necessary for me to do so. Mr. Erskine bears the burden of proving that an incident occurred in the manner he described. He has not done so. Accordingly, I am not persuaded that Mr. Erskine was involved in an incident in which the use or operation of an automobile caused him an impairment.

2. Did Mr. Erskine suffer an impairment as a result of the incident?

Mr. Erskine did not prove that he was involved in an automobile incident on October 10, 2000. Although this finding is sufficient to determine the issue of whether there was an accident as defined, I will also examine the question of whether Mr. Erskine suffered an impairment. Impairment is defined in the Schedule as a "loss or abnormality of a psychological, physiological or anatomical structure or function."

Mr. Erskine did not introduce sufficient evidence to demonstrate that he suffered from an impairment as a result of the alleged incident of October 10, 2000. Mr. Erskine testified that he suffered from a severe sore neck and back from October 2000 to April 2001. He sought medical attention from Dr. Nguyen at Brown's Line Medical Clinic on October 16 and 30, 2000. He had not seen Dr. Nguyen before October 16, 2000 and did not see him or any other doctor in connection with these injuries after October 30, 2000. Dr. Nguyen did not testify at the hearing and there was therefore no viva voce medical evidence offered to support a finding that Mr. Erskine was impaired.

Mr. Erskine relied on the disability certificate prepared by Dr. Nguyen on October 30, 2000 as evidence of his impairment. The disability certificate is of little probative value in this case.

There is no indication in the disability certificate or in Dr. Nguyen's notes as to the basis for his conclusion that Mr. Erskine suffers from an impairment. Dr. Nguyen did not testify at the hearing and there is therefore no evidence of the basis for Dr. Nguyen's conclusions concerning Mr. Erskine's impairment.

The disability certificate is also ambiguous. Whereas Dr. Nguyen indicates that Mr. Erskine cannot return to work, he also indicates that Mr. Erskine is not prevented from accomplishing substantially all of his pre-accident activities. There is no indication in the disability certificate as to the type of work that Mr. Erskine was prevented from doing as a result of his impairment.

In the absence of reliable objective medical evidence, I cannot conclude that Mr. Erskine suffered from an impairment as a result of the alleged incident of October 10, 2000.

3. Is Personal estopped from relying on the definition of "accident" in this case?

Mr. Erskine submitted that Personal was estopped from denying his eligibility for benefits on the basis that the incident occurred on a subway and that there was therefore no "accident."

In Bissoon,⁷ Director's Delegate Draper summarized the principle of estoppel in the following manner:

" If [ the insurer], by words or conduct, made representations to [the applicant] with the intention and result of inducing him to alter his position in a way that ended up being to his detriment, then it is estopped from arguing a position which is substantially at odds with its previous representation."

For the principle of estoppel to apply in this case, Mr. Erskine must demonstrate that Personal represented to him that it would not be relying on the location of the accident as a defence to his claim. He would also have to demonstrate that he relied on that representation to his detriment. He has not succeeded in proving either of these elements.

The evidence introduced at the hearing suggests that Personal repeatedly indicated to Mr. Erskine that it required further information with respect to the incident of October 10, 2000 in order to determine his eligibility. Personal did not represent that it would not be relying on the location of the incident in defence of the claim. I do not accept Mr. Erskine's submission that Ms. Fernandez' apology to him during their telephone conversation of October 17, 2000 constitutes a representation that Personal accepted his version of the event.

Mr. Erskine did not provide any evidence with respect to the manner in which he relied on any representations from Personal to his detriment. He did not testify that he would have provided additional information to the TTC had he known that the location of the incident was at issue. On the contrary, he indicated that he had been specifically advised not to cooperate with the TTC.

In Budd,⁸ Director's Delegate McMahon confirmed that the applicant bears the onus of , "providing positive evidence of detrimental reliance" in circumstances where the applicant is asserting the principle of estoppel. In the absence of any such evidence from Mr. Erskine, I cannot find that the principle of estoppel applies in this case.

CONCLUSION

Mr. Erskine has failed to prove, on a balance of probabilities, that there was an accident in this case, as that term is defined in section 2 of the Schedule. Mr. Erskine has not provided sufficient evidence to prove that there was an incident on October 10, 2000 which involved an automobile and which caused him an impairment. Mr. Erskine did not persuade me that Personal is estopped from relying on the definition of "accident" in defence of this claim.

As I have found that there was no accident in this case, it is unnecessary to address Mr. Erskine's claims for accident benefits under the Schedule.

Issue # 2 - Special Award:

There are no benefits or interest owing, and there is therefore no basis for a special award under subsection 282(10) of the Insurance Act. I find that Personal did not unreasonably deny paying benefits in this case.

Issue# 3 Whether the Insurer is entitled to an amount under subsection 282 (11.2) of the Insurance Act

Subsection 282 (11.2) of the Insurance Act gives an arbitrator discretion to order the payment of an amount not exceeding the insurer's assessment fee in circumstances where the applicant filed an application which is frivolous, vexatious or an abuse of process.

To qualify for an award under subsection 282(11.2) of the Insurance Act, the insurer must demonstrate that the application was frivolous, vexatious or an abuse of process. In this case, Personal alleges that Mr. Erskine brought the application for the sole purpose of causing inconvenience to Personal and its chief executive officer, Mr. Jude Martineau. Personal asked me to infer from the circumstances that Mr. Erskine's application was vexatious and an abuse of process but it did not adduce any evidence in this regard. Although Mr. Erskine was not successful in his application, this does not translate into a finding that his application is vexatious or an abuse of process. To succeed in its claim under section 282(11.2), Personal would have to introduce positive evidence to support its allegation that Mr. Erskine commenced this application solely for the purpose of causing it inconvenience and expense. It did not do so. There is not sufficient evidence before me to conclude that Mr. Erskine's application for arbitration is frivolous, vexatious or an abuse of process.

Evidentiary Ruling:

At Mr. Erskine's request, I provide reasons for my finding that the document marked as exhibit #5 is admissible.

Mr. Erskine objected to the admission of exhibit #5. The document is a photocopy of the computer printout of the claim data recorded by Ms. Buckvic. Mr. Erskine submitted that this document had not been provided to him 30 days before the hearing, as required in Rule 39.1 of the Commission's Dispute Resolution Practice Code ("Practice Code ) and that there were no extraordinary circumstances present which would justify its admission at this late stage in the proceedings under Rule 39.2.

I admitted exhibit #5 into evidence. The document does not impart any new information. It does not create a new or different line of inquiry. Mr. Erskine did not identify any prejudice which he would suffer as a result of the admission of this evidence. I note that Rule 81 in the Practice Code permits an arbitrator to decide that any rule does not apply in respect of a proceeding on such terms as he or she considers just. In this case, I found that Rules 39.1 and 39.2, relating to the service of documents 30 days before the hearing, should be waived with respect to exhibit #5.

EXPENSES:

Both parties requested their arbitration expenses in this matter.

Rule 75.2 of the Practice Code sets out the criteria to be considered in an award of expenses. These criteria include: each party's degree of success in the outcome; conduct of the insurer or insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding; and whether any position taken by the insurer or the insured person during the proceeding was manifestly unfounded or an abuse of process.

In consideration of these criteria, I find that Mr. Erskine should not be awarded any portion of his expenses and that he is responsible for the payment of one-half of Personal's expenses. In this regard, I note that Mr. Erskine was entirely unsuccessful in the outcome of this proceeding. I also note that he adopted a position with respect to the summons to witness for Mr. Martineau which was manifestly unfounded.

In response to Personal's motion to quash the summons of Mr. Martineau, the chief executive officer of Personal, Mr. Erskine assured me that he believed Mr. Martineau had potentially relevant evidence to offer with respect to the denial of his benefits. Mr. Erskine was not amenable to a compromise whereby Mr. Martineau could participate in the arbitration via telephone, as opposed to travelling from his residence in Montreal. Mr. Martineau attended at the proceeding and gave his evidence in a cooperative and forthright manner. He denied ever stating that Mr. Erskine would not receive benefits from Personal, and I accepted his evidence in this regard.

In his submissions, Mr. Erskine acknowledged that he had never believed that Mr. Martineau's evidence would assist him in the presentation of his case. It is unclear why Mr. Erskine insisted on Mr. Martineau's personal attendance if he was aware all along that Mr. Martineau would not be of any assistance to him. I found his position in this regard to be manifestly unfounded.

Aside from his stance with respect to the summons to witness, Mr. Erskine's behaviour did not have the effect of unduly delaying the proceeding. Personal is entitled to one-half of its arbitration expenses.

May 23, 2002

Catherine Skinner

Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 81

FSCO A01-000588

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GRAEME ERSKINE

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Graeme Erskine's application is dismissed.

2. Graeme Erskine will pay to Personal one-half of Personal's arbitration expenses.

May 23, 2002

Catherine Skinner

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, 303/98 and 114/00.
2. 2Exhibit 6
3. 3Exhibit 7
4. 4TTC's letter to Ms. Willson of January 29, 2001 is marked as exhibit 9.
5. 5Exhibit 1, tab 23.
6. 6(FSCO A96-001401, October 9, 1998)
7. 7Bissoon and Pilot Insurance Company (OIC appeal P96-00084, October 8, 1997)
8. 8Budd and the Personal Insurance Company (FSCO appeal P9900032, January 8, 2001)