Neutral Citation: 2003 ONFSCDRS 159

FSCO A02-001644

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

YASMIN VIRANI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

September 17 and 18, and October 17, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Joseph Pileggi for Mrs. Virani

Donald Harvey for Allstate Insurance Company of Canada

Issues:

The Applicant, Yasmin Virani, was injured in a motor vehicle accident on December 2, 2000. Mrs. Virani had previously been hurt in a workplace accident on October 31, 1999. She has not worked since December 8, 1999. At the time of her car accident, Mrs. Virani was receiving Workplace Safety & Insurance Board ("WSIB") benefits. In August 2000, the WSIB had referred Mrs. Virani to a Labour Market Re-entry ("LMR") program. Mrs. Virani was unable to start that program as a result of injuries sustained in the car accident. As a result, Mrs. Virani's WSIB weekly loss of earning benefits were suspended pending her ability to participate in the LMR program. Accordingly, Mrs. Virani applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹

Initially, Allstate maintained that Mrs. Virani was not employed at the time of the car accident and, hence, was not entitled to weekly income replacement benefits ("IRBs") payable under subsection 4(1) of the Schedule. Following the release of Shearstone and York Fire & Casualty Insurance Company (FSCO A00-000322, February 6, 2001), Allstate reversed its position and paid Mrs. Virani IRBs ongoing from December 8, 2000, using the Applicant's WSIB benefit at the time of the car accident to determine her IRB quantum. However, upon Shearstone being reversed on appeal (York Fire & Casualty Insurance Company and Shearstone (FSCO P01-00013, January 8, 2002), Allstate terminated Mrs. Virani's IRBs effective April 2, 2002.

Mrs. Virani disputes this termination, claiming IRB entitlement pursuant to subsection 4(3) of the Schedule. She submits that at the time of the car accident her medical condition was improving such that she hoped to return to her prior employment, which she states was still available to her. Allstate argues that Mrs. Virani's position, at its best, is that at the time of the car accident she had an offer of employment that was conditional on her being physically able to perform her prior job duties, and that this does not meet the requirements of subsection 4(3).

As the parties were unable to resolve their disputes through mediation, Mrs. Virani applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Accordingly, the issues in this hearing are:

1. Was Mrs. Virani entitled at the time of the December 2, 2000 car 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?

2. Is Allstate liable to pay Mrs. Virani's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

Result:

1. Mrs. Virani was not entitled at the time of the December 2, 2000 car 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.

2. If the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

At the start of the hearing, Allstate withdrew its claim for its arbitration expenses. The Applicant withdrew her claim for a special award and indicated that interest on overdue payments was no longer in issue. The parties also indicated that the quantum of the IRB was not in issue and that a decision on her prospective employment would determine her entitlement to weekly IRBs.

The Applicant's uncle by marriage, Mr. Hasanali Virani, did not attend as a witness on September 18, 2003. The Applicant requested that the hearing be adjourned to allow Mr. Virani another opportunity to attend. The Applicant agreed to waive interest until the resumption date. I ordered that the matter be put over to October 17, 2003 on the following terms:

– that the adjournment was peremptory to the Applicant;

– that interest on any overdue payments had been waived by the Applicant from September 18 to October 17, 2003;

– that the Applicant pay the Insurer its expenses thrown away, in the cause; and,

– that I was seized with this matter.

The Insurer asked that certain memos from the Applicant's WSIB file be filed as exhibits. The Applicant objected, submitting that proper notice had not been given, that the documents did not meet the exception to the hearsay rule, that those noted in the memos should have been called as witnesses and that this was an abuse. The Applicant submitted, however, that if part of the WSIB file was allowed into evidence, then the entire file should be entered as an exhibit.

At the hearing, I rendered the following oral decision:

Arbitration is meant to be a simpler, more cost efficient and more expeditious system of adjudication, as specifically set out in section 1 of the Dispute Resolution Practice Code. Hence, FSCO takes a more flexible approach regarding hearsay evidence. In practice, hearsay documentation is routinely allowed into evidence at FSCO under the authority of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. Arguments may, of course, be made as to the weight, if any, which should be given to such documents.

Front and centre, however, before the adjudicator in determining whether to allow in such evidence are questions of fairness, as well as how necessary and helpfully relevant might be the proposed exhibits. Fairness includes concerns as to reasonable notice. In this case, the documents in question were first obtained by the Applicant and served on the Insurer. I am not persuaded that there is any element of surprise to the Applicant.

There is also a concern against picking and choosing parts of a document and excluding other parts which may also be relevant in clarifying or explaining matters. In this proceeding, as I understand it, we essentially have a question of whether there was a legitimate contract of employment that was made before the accident that is evidenced in writing. The Applicant has repeatedly testified that her intention was to return to her former employment once she was fit to do so. In this regard, the Applicant saw the Labour Market Re-Entry program as a means of assisting her return to employment. I find the information in the WSIB file to be prima facie relevant to and helpful in deciding the issues in dispute and at this point, indeed necessary to obtain a better picture of the facts in this case.

There is no ownership in a witness; each side has an equal right to call a third party witness or evidently both, as I am advised, are equally unable to call a witness from the WSIB. If the latter is so, then this documentation is the best evidence that is evidently available from the WSIB and I will allow same into evidence. I do note that these matters have been put to Mrs. Virani.

In considering Rule 39.3 of the Dispute Resolution Practice Code, which pertains to the question of the admissibility of evidence, I find that:

– the documents are not privileged;

– there is no suggestion they are inadmissible under the Insurance Act;

– the Applicant concedes that there is no suggestion that they are inadmissible under any other Act, including the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A;

– service of these documents by the Applicant on the Insurer leads me to find that the Applicant is not taken by surprise;

Accordingly, I allow into evidence the entire WSIB file, subject to submissions as to what, if any, weight I should apply to this documentation.

EVIDENCE AND ANALYSIS:

An insured person may be entitled to IRBs if the insured was:

– employed at the time of the accident;

– employed for at least 26 out of the 52 weeks before the accident; or,

– had a prospective contract of employment.

The parties agreed that I was to determine whether Mrs. Virani had a prospective contract of employment, which would thereby entitle her to IRBs.

Subsection 4(3) sets out the following requirements for an insured person to qualify for IRBs based on a prospective contract of employment:

(1) there was a legitimate contract of employment at the time of the accident;

(2) the contract of employment entitled the insured to start work within one year;

(3) the contract of employment was made before the accident; and,

(4) the contract of employment is evidenced in writing.

The parties agree, and I find, that Mrs. Virani was hired by XL Laundromat & Drycleaners ("XL") on April 11, 1999. I accept that this was a family business, operated by the aunt and uncle (Mr. Hasanali Virani) of the Applicant's husband together with the aunt and uncle's daughter-in-law, who also has the name Yasmin Virani.

Mrs. Virani's argument, succinctly, is that she was never fired nor did she ever quit XL. Rather, she submits that a legitimate contract of employment with XL still existed at the time of the car accident, as evidenced in the WSIB file as well as her Application for Accident Benefits. She maintains that she hoped to return to that employment after the LMR program was to end in March 2001.

During the hearing, I clarified with the parties several times that the issue of whether the Applicant was employed at the time of the accident was not before me and that subsection 4(1) of the Schedule was not an issue which I was to decide.

As regards the question of prospective employment under subsection 4(3) of the Schedule, I am not persuaded that the Applicant meets the requirements of that section.

An initial concern is whether subsection 4(3) of the Schedule applies to a situation where the insured submits that he or she was employed at the time of the accident in a particular position but seeks to take advantage of one's future (rather than past) salary. I note the decision of Arbitrator Baltman in Reith and Halifax Insurance Company (FSCO A98-00023, July 15, 1998), upheld on appeal (FSCO P98-00037, July 16, 1999), which held that:

By making the payment of benefits contingent on an inability to perform the prospective job tasks, the legislators made the job, rather than the employer, the focus of compensation. Thus benefits do not increase simply because of anticipated or even promised pay raises, but because before the accident, the employee was promised a job distinct from what he was then doing.

Given, as Director's Delegate Makepeace said on appeal, that "[t]he 'contract of employment' provisions are clearly intended as a departure from the generally 'backward looking' approach" of the Schedule, I am not sure that this Applicant can take advantage of subsection 4(3) to have her IRB based, not on her past lack of income from XL for the requisite four or 52 weeks before the car accident, but rather based on future income she hoped to earn from the same job she was doing before the work injury.

More fundamentally, I note that under paragraph 5(2)(c) of the Schedule, an insured who is relying on a contract of employment is not entitled to benefits before the day he or she would have been entitled under the contract to begin employment. In this case, I have no evidence as to what precise or even approximate day the Applicant would have been entitled to start employment.

This is because, at its best, the Applicant's case is that there was a conditional contract of employment, that both the employer's offer and Mrs. Virani's acceptance of renewed employment at XL were dependent upon her being physically capable of performing her pre-work injury employment. The Applicant maintains that on the balance of probabilities she would have returned to work, but for the injuries sustained in the car accident. The Applicant submits that the correct question is whether she could have or would have returned to XL.

Fridman, in The Law of Contract,² at p. 437, states that:

If a condition is a true condition precedent, there is no contract until it is satisfied . . . a distinction now exists between a condition relating to the existence of any contractual obligation and a condition that is precedent to performance of a contractual obligation by the other party, not the one subject to fulfilment of the condition precedent. [emphasis in the original]

Professor Fridman continues, at page 440, to state "it is preferable to say that non-fulfilment of the [true condition precedent] makes the contract inoperative as opposed to void."

In this case, I do find, for the reasons which follow, that Mrs. Virani's return to work was entirely contingent on her being physically fit to perform all of the job duties that her pre-work injury employment entailed. I find that this was a true condition precedent. I find that the condition was not satisfied at the time of the car accident. Accordingly, I find that at the time of the accident, at best, there was an "inoperative" contract and that such a contract would not meet the requirement that an insured must be entitled at the time of the accident to start work within one year under a legitimate contract of employment.

This is consistent with the comments of Arbitrator Alves in Kojic and General Accident Assurance Company of Canada (OIC A-08422, May 4, 1995) who found that Mr. Kojic could not be said to have been entitled to start work at the time of his accident as he did not have a work permit until after his accident. Arbitrator Alves queried whether it was appropriate, in the case of conditional offers of employment, to consider events which took place after the accident.

Arbitrator Baltman, in Leblanc and Jevco Insurance Company (FSCO A98-000497, June 18, 1999) (decided under the preceding legislation), stated that:

the stipulation of a "legitimate" contract requires that it was plausible that the applicant could perform the work in question at the time the contract was entered into. If, as here, the applicant had no reasonable expectation that he could perform the necessary work, his intention to work cannot be genuine. It must follow that the contract is not legitimate.

I further find in this case, on a balance of probabilities, that it was not reasonable, probable or plausible to have expected, had this car accident never taken place, that Mrs. Virani would have returned to her employment duties at XL within one year of the car accident.

I make these findings based on the following evidence:

1. I find that Mrs. Virani's pre-accident work was physically demanding. I accept her testimony that she worked ten or eleven hours a day, six days a week at XL. I accept the uncontradicted evidence in Northern Lights Vocational Services' November 1, 2000 report that Mrs. Virani's job duties included not only handling the cash register and operating the Coin Laundromat but also assisting customers, washing and folding laundry, the heavy work of packing and assembling dry cleaning, performing minor repair alterations and cleaning, mopping, dusting and tidying the general areas.

The very physical nature of Mrs. Virani's work is confirmed in her report to the WSIB that she injured herself while carrying a load of 20 pieces of clothing weighing approximately 20 to 25 pounds. I accept the evidence from the WSIB file that Mrs. Virani attempted to do lighter duties for a short period between October 31 and December 8, 1999 when her employer hired someone to help her during this evidently temporary period. I further accept the testimony of Mrs. Virani that there was no opportunity at the Laundromat to have a physically easy job and that the employer could not afford to have two people employed at the same time. This mirrors a January 24, 2000 WSIB memo that (XL's co-owner, the other) Yasmin Virani contacted the WSIB claims adjudicator, Mr. J. Ferster, indicating that there was no modified work available to the Applicant at XL as the person holding the position worked alone and would be responsible for all duties, including packing, folding and lifting of clothes.

2. I accept the evidence of the Applicant's family doctor, Dr. S.D. Kanani, that Mrs. Virani had sustained a C5-C6 disc herniation and left carpal tunnel syndrome work injury. I accept the evidence of the (pre-car accident) report of Ruth Berman Consultants dated September 15, 2000 that Mrs. Virani was to avoid carrying or lifting heavy objects and was to avoid repetitive movement of her shoulder and left wrist.

3. Attached to the employer's May 15, 2001 confirmation of income (which states that at the time of the car accident Mrs. Virani was on a leave of absence) is a December 13, 1999 Record of Employment which states that her expected date of recall was unknown.

4. A series of Physician's Reports to the WSIB signed by Dr. Kanani, starting May 2, 2000 and continuing (after the car accident) until February 21, 2001, all indicate that while both improvement and complete recovery were expected for the Applicant, the date for same was "indefinite," "I do not know," or "cannot estimate."

5. A July 14, 2000 WSIB Employer's Progress Report signed (illegibly) by a manager (probably the other Yasmin Virani) at XL indicates that:

– a regular job is not still available for Mrs. Virani;

– suitable employment is not available for Mrs. Virani; and,

– that Mrs. Virani had not contacted the employer about a return to regular or suitable employment.

This is consistent with a July 7, 2000 WSIB memo to file that indicates that (the other) Yasmin Virani was initially reluctant to state whether XL would take the Applicant back. A call later that day by the same Yasmin Virani, however, indicated that XL would not be taking the Applicant back, that they had hired new staff who were working out well, that they did not wish to displace anyone and that there was no need for additional staff.

6. The WSIB LMR Assessment Referral form signed by Mr. Ferster on August 21, 2000 and Ms. S. Sakamoto, Nurse Case Manager, on August 18, 2000, state that Mrs. Virani was to avoid repetitive neck and left hand movement and above shoulder and overhead activity. This mirrors an August 21, 2000 WSIB memo to file that Mr. Ferster advised the Applicant that she likely had been left with permanent restrictions which prevented her return to her pre-injury employment and that she was to be assessed so as to plan her return to the work force in a job that she was physically able to do and to restore her pre-injury earnings.

Mrs. Virani denied that Mr. Ferster communicated this information to her. Given that Mr. Ferster made a contemporaneous memo to file and referral note, and given the Applicant's poor memory regarding many of the documents, people and events involved in this matter (including Ruth Berman Consultants, Mr. G. Hynes of Northern Lights Vocational Services and the letter of August 23, 2000 from Mr. Ferster set out below), I do not accept the Applicant's present recollection about this conversation which took place three years ago and I accept the evidence of the contemporaneous documentation.

7. The letter of August 23, 2000 to Mrs. Virani from Mr. Ferster, states:

– that Mrs. Virani's WSIB claim had been accepted for her left wrist and neck disabilities due to her work injury of October 31, 1999;

– his understanding that Mrs. Virani's medical condition had plateaued, i.e. that a WSIB medical consultant had confirmed that her medical condition had stabilized and that she had reached maximum medical recovery; that Mrs. Virani would be left with permanent precautions due to her work injury and that she would not be capable of returning to her pre-injury employment; that it was felt that she may be left with a permanent functional impairment due to this work injury;

– that her employer had confirmed that they did not have a job for her to return to;

– that as a result of the absence of a job and the medical precautions, Mrs. Virani was to be referred to undergo a LMR assessment by an outside service provider. The purpose of the LMR plan was for her to re-enter the workforce in a way that would enable her to restore her pre-work injury earnings; and,

– that Mrs. Virani would be referred to undergo a non-economic loss (NEL) assessment to determine whether she had been left with a permanent impairment due to her occupational injury.

I find the purpose, content and recommendations of this letter inconsistent with any reasonable prospect of Mrs. Virani returning to her pre-accident employment within one year of the car accident.

8. The September 15, 2000 report of Ruth Berman Consultants is addressed to the Applicant's WSIB Case Manager, Mr. G. Hynes. The report begins with the premise that Mrs. Virani was no longer able to perform her former customer service clerk position and had been referred for a psycho-vocational assessment as to her current vocational capacities and future employment options. The Applicant's intellectual capacity, academic levels, aptitudes, vocational interests and behavioural characteristics are reviewed. The report concludes that because of her physical condition, Mrs. Virani would require a light duty position (sedentary or semi-sedentary) that did not stress her neck, shoulder or left hand (or her right hand due to overuse) and that did not involve heavy carrying or lifting. The report sets out employment options. Suggestions are made as to possible upgrading and training for Mrs. Virani to become "a more competitive job applicant."

I find the purpose, content and recommendations of this report inconsistent with any reasonable prospect of Mrs. Virani returning to her pre-accident employment within one year of the car accident.

9. The letter of Career Essentials Inc., dated October 18, 2000 to Mr. Hynes, indicates that they could provide Mrs. Virani with an academic training program and job search assistance. Again, I find the purpose, content and recommendations of this letter inconsistent with any reasonable prospect of Mrs. Virani returning to her pre-accident employment within one year of the car accident.

10. Northern Lights Vocational Services' November 1, 2000 report indicates:

– that the (other) Yasmin Virani who oversaw the family's various businesses was contacted in October 2000. It was this person's understanding that the Applicant's doctor had advised Mrs. Virani not to work and that while she did not want to talk about the availability of work, she felt strongly that the company did not have any obligation to the Applicant;

– that the Applicant had agreed with the medical precautions that she was to avoid lifting, repetitive neck movements, above the shoulder and overhead movements, movements of the left hand and push/pulling movements with her neck;

– that "there is a whole series of [pre-work injury employment] skills and duties that cannot be considered because of the injury such as lifting, carrying and preparing the dry cleaning and laundry. She was not able to do the physical aspects of the work. She was only able to do some of the repair work and alterations. Thus, she could not continue employment. She could not simply do administrative tasks at the front desk at this store" [emphasis added];

– alternative employment options taking into account Mrs. Virani's transferable skills, the psycho-vocational assessment by Ruth Berman Consultants, the training proposed by Career Essentials Inc., market employability conditions and the Applicant's physical and vocational suitability and earning capacity.

I find the purpose, content and recommendations of this report inconsistent with any reasonable prospect of Mrs. Virani returning to her pre-accident employment within one year of the car accident.

11. Mr. Ferster's November 23, 2000 WSIB memo to file confirms his agreement with

Mr. Hynes to an eight-week customer service program and a job search training program to give the Applicant additional skills and assist in her successfully securing employment. Mr. Ferster noted that there was no need for English as a second language training given the Applicant's current level of functioning, her education (a Bachelor's degree in psychology, philosophy and economics) and her English language test results.

I find the purpose, content and recommendations of this memo inconsistent with any reasonable prospect of Mrs. Virani returning to her pre-accident employment within one year of the car accident.

12. The LMR Amended Plan was signed by Mrs. Virani, Mr. Hynes and Mr. Ferster a few days prior to the car accident. It laid out a customer service program from December 4, 2000 to February 2, 2001 to be followed by a job search techniques program from February 5 to March 9, 2001, both with Career Essentials Inc., at a cost of $6,719, excluding projected payments of weekly benefits of some $24,000. The form indicates that the plan is mutually acceptable to all the signatories and that it is agreed that the LMR aim is to achieve employability in the stated suitable employment or business.

I find the purpose, content and recommendations of this document and the considerable proposed expenditure of time and money inconsistent with any reasonable prospect of Mrs. Virani returning to her pre-accident employment within one year of the car accident. I find the document consistent with the expectation that Mrs. Virani would be permanently unable to return to her prior employment and would suffer a future loss of income as a result. I find that the purpose of the program was not physical rehabilitation aimed at returning Mrs. Virani to her prior employment or improving her physical condition or abilities, but rather vocational retraining and job search training.

13. A series of eight WSIB Worker's Progress Reports from April 11 to November 10, 2000 signed by the Applicant, each of which (a) confirms her condition as the "same as before" and (b) indicates that she did not know when she would be able to return to work nor had her doctor said that she could return to work. I find this contemporaneous, first-hand evidence inconsistent with and more persuasive than the October 8, 2001 report of Ms. I. Dainov, O.T., prepared for Allstate (and upon which the Applicant relied) which reported Mrs. Virani as saying that at the time of the car accident she had "made almost a full recovery and was scheduled to return for training."

14. Mr. Hasanali Virani testified that he would take Mrs. Virani back at her old job but on the condition that she was fit, and that at no time before the car accident did he talk to her about (a) returning to work (b) a specific date on which she would return to work or (c) what salary she would be paid if she came back. Mr. Virani also testified that while XL is owned by his wife and daughter-in-law, as head of the household, he makes most of the decisions.

15. Mrs. Virani testified that her family doctor, Dr. Kanani, never told her that she would be able to go back to her old job by a certain date. In submissions, the Applicant conceded that there was no objective medical evidence that she would be able to return to her pre-accident employment at the time of the accident or within the year thereafter.

16. I accept Mrs. Virani's evidence (given in chief) that her intention was that if she was "physically perfect," she would return to XL. I further accept her evidence that she did not know when she would be fit to go back to work, she did not know whether after the three-month LMR program she would be "physically perfect" and that she had never discussed with Mr. Hasanali Virani as to when she would be able to go back to work. I note her evidence that her uncle had said that if she was fit she was always welcome to come back.

I do not find this evidence consistent with the argument that there was a reasonable prospect that the Applicant would likely return to her prior employment within one year of the accident.

17. On the Application for Accident Benefits signed by Mrs. Virani on December 19, 2000, the Applicant, or someone on her behalf, checked off that she was "unemployed" at the time of the accident. The section asking whether there is "a written agreement to start work within 1 year" is left blank. Under Part 8 of the form which asks for the details of one's employment for the last 52 weeks, the employer is noted as being the WSIB. It is then indicated that training was to start through the WSIB on December 4, 2000. The Applicant testified that it may have been her husband who filled out the Application form.

Obviously, this evidence, which I find was prepared or reviewed by the Applicant or in consultation with her, is inconsistent with the Applicant's argument that at the time of the car accident she was entitled to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing.

18. The Applicant's December 12, 2000 signed statement to Allstate confirms that the WSIB had arranged for her to attend training to become a customer service representative. There is no indication in the statement that she had a contract of employment to return to her pre-work injury employment or intended to return to that employment. While the statement indicates that the WSIB had stopped paying for physiotherapy treatments as her condition was stable, it also states that her condition was improving during the last two to three months of physiotherapy. A December 13, 2000 report, however, from the Queensway Physiotherapy Centre states that as of the Applicant's last visit on November 29, 2000, subjectively her pain and function had plateaued.

Accordingly, having found that Mrs. Virani was not entitled at the time of the December 2, 2000 car 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, I find that she is not entitled to weekly income replacement benefits pursuant to subsection 4(3) of the Schedule.

EXPENSES:

The parties agreed that the issue of the legal expenses of this arbitration proceeding should be heard after I had determined the other issues in dispute. Having determined same, if the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

I again note, however, as set out above, that as a term of my adjournment order, I ordered the Applicant to pay the Insurer's costs thrown away, in the cause.

I wish to thank both Mr. Pileggi and Mr. Harvey for their professionalism, advocacy and courtesy throughout this hearing.

November 14, 2003

Lawrence Blackman

Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 159

FSCO A02-001644

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

YASMIN VIRANI

Applicant

and

ALLSTATE 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. Mrs. Virani is not entitled to weekly income replacement benefits pursuant to subsection 4(3) of the Schedule.

2. If the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

November 14, 2003

Lawrence Blackman

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, 114/00 and 482/01.
2. 2Professor G.H.L. Fridman The Law of Contract in Canada, 3rd ed., (Toronto: Carswell, 1994)