Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 40
FSCO A04-002734
BETWEEN:
JASWINDER K. SINGH Applicant
and
AVIVA CANADA INC. Insurer
REASONS FOR DECISION
Before: Jeffrey Rogers
Heard: February 7 and 8, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: David F. Longley, solicitor for Mrs. Singh Pamela Quesnel and Cara Boddy, solicitors for Aviva Canada Inc.
Issues:
The Applicant, Jaswinder K. Singh, was injured in a motor vehicle accident on March 9, 2003. She applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.1 Aviva terminated weekly caregiver and housekeeping benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Singh 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:
Is Mrs. Singh entitled to receive caregiver benefits totalling $2,500 for the period from May 18, 2003 to July 26, 2003 and $250 per week from July 27, 2003 to March 8, 2005, pursuant to section 13 of the Schedule?
Is Mrs. Singh entitled to payment for housekeeping and home maintenance services in the amount of $1,800 for the period from March 10, 2003 to July 26, 2003 and $100 per week from July 27, 2003 to March 8, 2005, pursuant to section 22 of the Schedule?
Is Mrs. Singh entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is either party liable to pay expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Result:
Mrs. Singh is not entitled to the claimed caregiver benefits.
Mrs. Singh is not entitled to the claimed housekeeping benefits.
Should the parties be unable to agree on expenses, either party may request an appointment to resolve that issue under Rule 79 of the Dispute Resolution Practice Code.
PROCEDURAL ISSUES:
Mrs. Singh withdrew her claim for payment of $3,150 for physiotherapy and $128.30 for transportation, noted as an issue at the pre-hearing.
After all of the oral evidence, Mrs. Singh sought leave to introduce a disability certificate dated December 15, 2004. Mrs. Singh first gave Aviva notice that she sought to rely on this document on February 7, 2006. Mrs. Singh claimed that Aviva was aware of the document well in advance of the hearing because it had been sent to the adjuster. Her counsel advised that he had always intended to rely on this document but, through inadvertence, he had not noticed that it was not included in the joint brief. Counsel for Aviva denied seeing the document earlier and argued that Aviva would be prejudiced by its late admission because she would have lost the opportunity to cross-examine the witnesses on its contents, require its author to attend for cross-examination and tender rebutting evidence.
I declined to exercise discretion to admit the document upon less than 30 days notice as required by Rule 39.1 of the Dispute Resolution Practice Code. I found that extraordinary circumstances did not exist, as required by Rule 39.2, and its late admission would prejudice Aviva and compromise the fairness of the hearing.
EVIDENCE AND ANALYSIS:
Status at Time of Accident
As noted above, caregiving and housekeeping benefits are in dispute in this arbitration. Mrs. Singh claims those benefits for 104 weeks following the accident. Aviva's position is that Mrs. Singh is not entitled to the claimed benefits because she was not a primary caregiver at the time of the accident and did not perform housekeeping activities before the accident. Aviva also takes the position that Mrs. Singh did not sustain an impairment as a result of the accident that prevented her from performing caregiving and housekeeping activities.
Section 13 of the Schedule requires an insurer to pay an insured person who sustains an impairment as a result of an accident, a caregiver benefit if the insured person meets all of these qualifications:
At the time of the accident, i. the insured person was residing with a person in need of care, and ii. the insured person was the primary caregiver for the person in need of care...
As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities he or she engaged at the time of the accident.
Section 22 of the Schedule requires an insurer to pay for the reasonable and necessary additional expenses incurred by an insured person for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform housekeeping and home maintenance services that he or she normally performed before the accident.
At the time of the accident, Mrs. Singh lived with her mother, her daughter and her nephew. Mrs. Singh was injured in another accident on September 1, 2002, about 7 months before this one. She claimed and was paid, housekeeping benefits as a result of the injuries sustained in the first accident. On February 4, 2003, five weeks before she had this accident, she settled her claim for benefits from the first accident. The terms of the settlement included payment of $1,000 for future housekeeping expenses. No caregiving benefits were paid for the first accident.
It is not disputed that Mrs. Singh's mother is a "person in need of care", as described in Section 13(1) and that she met that definition at the time of the first accident. It is not disputed that Mrs. Singh provided caregiving services for her mother at the time of the first accident. It is also not disputed that Mrs. Singh normally performed housekeeping and home maintenance activities for her household, before the first accident.
Mrs. Singh submitted an application for benefits from this accident, dated April 15, 2003. It stated that Mrs. Singh was the primary caregiver for her mother at the time of this accident and that she was not able to return to those activities. The supporting Disability Certificate from her family doctor confirmed that Mrs. Singh suffered an impairment that prevented her from engaging in pre-accident caregiving activities. The Disability Certificate also indicated that Mrs. Singh suffered an impairment that prevented her from engaging in pre-accident housekeeping and home maintenance activities. Aviva paid $371.43 for housekeeping to June 10, 2003 and $366.66 for caregiving to July 12, 2003 upon the recommendation of Anne Simpson Shaw, an occupational therapist. When she made her recommendations, Ms. Simpson Shaw was under the impression that Mrs. Singh had fully recovered from her first accident and had returned to all of her caregiving and housekeeping activities, before this accident.
Mrs. Singh denied giving Ms. Simpson Shaw that information. In fact, she was only "slightly recovered", had not returned to any housekeeping activities and had resumed only minor caregiving activities, at the time of this accident. The only activities she had resumed were combing her mother's hair and taking her to the doctor, when no one else could. Her evidence was that any information she provided about what she did before the accident, refers to what she could do before the first accident. All of Mrs. Singh's witnesses confirmed her evidence in this regard. I accept that evidence.
Mrs. Singh submitted that she was nevertheless the primary caregiver for her mother at the time of this accident and performed housekeeping activities before this accident, within the meaning of sections 13 and 22 of the Schedule. She submitted that being a caregiver and housekeeper is a question of status and that she retained that status at the time of this accident, although she was prevented from performing the services by impairment from the first accident. Mrs. Singh submitted that Aviva conceded her status when it paid caregiving and housekeeping benefits following this accident and that it is now estopped from arguing otherwise. She submitted that accepting Aviva's position would produce an unfair result because it would mean that she was entitled to caregiving benefits from the first accident and not this one, although Aviva did not pay caregiving benefits for the first accident.
Mrs. Singh quoted no authority for her position and I have found none. I do not accept her submissions. I find that the clear, ordinary meaning of sections 13 and 22, requires a determination of status based on activities performed at the time of the accident. If the Legislature intended some other time, it would have said so, as it did in sections 4(2) and (3) in fixing eligibility criteria for income replacement benefits for persons who were not employed at the time of the accident. I find that Aviva is not estopped because it has paid benefits. It paid because Mrs. Singh provided information that supported entitlement. Aviva acted on that information in good faith. Nothing in the Schedule, and no principle of fairness prevents Aviva from taking a different position now that the information Mrs. Singh provided, has proven inaccurate. I find that possible entitlement to unpaid caregiving benefits from the first accident, is irrelevant to interpreting the meaning of section 13.
In summary, I find that Mrs. Singh is not entitled to the claimed caregiving and housekeeping benefits because she was not the primary caregiver for a person in need of care, at the time of the accident, and she did not normally perform housekeeping activities, before the accident.
Prevented by Impairment
To be entitled to the claimed benefits, Mrs. Singh must also show that impairments from the accident prevented her from engaging in her pre-accident activities. Her evidence was that, at the time of this accident, impairments from the first accident prevented her from engaging in all of the activities for which she claimed compensation.
Mrs. Singh suffered soft tissue injuries to her neck and back in the first accident. Her evidence was that her injuries from this accident were generally the same, but her symptoms were aggravated. I heard no oral evidence and was presented with no documentary evidence, as to when she may have recovered from the first accident. The only opinion filed in support of Mrs. Singh's claim is the Disability Certificate from her family doctor, dated April 2, 2003. It makes no mention at all of the first accident.
There is therefore no evidence on whether impairments from this accident prevented Mrs. Singh from engaging in any pre-accident activities. Since Mrs. Singh has provided no evidence that impairments suffered in this accident prevented her from engaging in any activities she engaged in prior to the accident, it is not necessary to address Aviva's position that she was capable of engaging in caregiving and housekeeping activities when benefits were terminated.
EXPENSES:
The parties made no submissions on this issue. If they are unable to resolve it, either party may make an appointment for me to determine the matter in accordance with Rule 79 of the Dispute Resolution Practice Code.
March 9, 2006
Jeffrey Rogers Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 40
FSCO A04-002734
BETWEEN:
JASWINDER K. SINGH Applicant
and
AVIVA CANADA INC. Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The application is dismissed.
If the parties are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rule 79 of the Dispute Resolution Practice Code.
March 9, 2006
Jeffrey Rogers Arbitrator
Date