Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 157

FSCO A04-001909

BETWEEN:

FARID SHEMOU

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: John Wilson

Heard: May 22, 23, 24 and 25, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Shemou appeared on his own behalf, with assistance from Billy Stephan

Lorraine Takacs for ING Insurance Company of Canada

Issues:

The Applicant, Farid Shemou, was injured in a motor vehicle accident on January 30, 2003. He applied for statutory accident benefits from ING Insurance Company of Canada (“ING”), payable under the Schedule.¹ ING did not pay weekly income replacement benefits due to its concerns about the legitimacy of Mr. Shemou’s job offer.

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

As I noted in my earlier decision on the issue of an offer of employment, this matter has a long history before the Commission. Mr. Shemou’s claim first proceeded to hearing on March 27, 2006 ², when it was adjourned due to the unavailability of key witnesses, who had not been summonsed by either his counsel of record, Alon Rooz of the law firm of Mazin & Rooz, or Ms. Dimple Verma, the lawyer who actually appeared for Mr. Shemou at the hearing.³ At that time, I scheduled a resumption of the hearing for August 2006, since counsel for Mr. Shemou was not ready to proceed.

I reserved at that time on an order of costs thrown away resulting from the last-minute adjournment. Prior to the resumption of the hearing, a motion was placed before me requesting an order that Mazin & Rooz be permitted to withdraw as solicitors of record for Mr. Shemou in this matter. Mr. Shemou contested this withdrawal.

Due to the nature of the evidence presented by both sides, this motion was heard in the absence of counsel for the Insurer.⁴ After a hearing on that issue I found that there was an irrevocable breakdown in confidence between Mr. Shemou and his counsel of record, and that it would be inappropriate for the law firm to remain on the record. Mazin & Rooz and, more specifically, Alon Rooz were given permission to withdraw, but subject to any potential liability for costs in this matter pursuant to section 282(11)(2) of the Insurance Act.

Despite several attempts to obtain counsel, Mr. Shemou advised that he was unable to do so, and this matter ultimately proceeded to hearing with Mr. Shemou unrepresented. At his request, I allowed a friend and cousin, Billy Stephan, who spoke both Assyrian and English, to assist him in the presentation of his case. An interpreter was also present at the hearing.

The second portion of the substantive hearing took place commencing May 22, 2007. The date for the resumed hearing was set in March of 2007, after the parties had received my interim decision on the employment issue, and after the parties indicated that the balance of the hearing dates would be required.

By letter dated March 30, 2007, I wrote to the parties as follows concerning the scheduling of the balance of the hearing:

In this matter, Mr. Shemou’s position appears to be that the availability of the Insurer’s chosen counsel should not automatically trump his right to an early and swift determination of his benefit entitlement, especially in light of his current illness.

At present I would suggest that both parties should be ready to proceed on the balance of the issues by the week of May 21, 2007, which should give almost two months for preparation. Indeed, I will schedule the matter for that date, unless I hear to the contrary from the parties.

If the parties are unable to agree on this date, I will schedule a brief case conference to hear arguments as to the scheduling of the balance of the hearing dates, and whether there should be any conditions attached to my order fixing the dates for the hearing should it ultimately be scheduled later than the above date at the request of either party.

I expect a written response as to the scheduling of this matter by April 8, 2007 at the latest.

I received no submissions or comments from the parties concerning the proposed hearing dates within the time frame set out in my letter.

Since the issue of whether Mr. Shemou had received a valid offer of employment had been decided, by my first decision, the hearing dates in May 2007 would deal with the balance of Mr. Shemou’s claim for accident benefits. These consisted principally of income replacement benefits arising from the offer of employment and housekeeping benefits.

I was also advised at the start of the hearing by Ms. Takacs that the treatment provider issues that I had listed in my March 30, 2007 letter had been settled with Mazin & Rooz in June of 2006, shortly before they took steps to be removed as solicitors of record.⁵ Although Mr. Shemou showed some surprise as to this turn of events, he presented neither evidence nor argument in support of those claims, and I have consequently not considered them as part of my award.

Ms. Takacs evinced some discomfort about what she viewed as unfair indulgences granted to Mr. Shemou throughout the hearing. While I noted my obligation as adjudicator to make accommodation for Mr. Shemou’s unrepresented status, and his difficulties with the English language, Ms. Takacs argued for a rigid application and no mitigation of the procedural rules contained in the Dispute Resolution Practice Code, even where there was discretion to relieve against some of the potentially harsher consequences for an unrepresented and unsophisticated applicant.

While I understand Ms. Takacs’ frustration with what she viewed as a fluid framework for the arbitration, I have, as arbitrator, a fundamental obligation both to the fairness of the process, and its accessibility to parties unrepresented and unfamiliar with the practice of law. Although various interpreters were provided throughout the hearing process, Mr. Shemou and his cousin Mr. Stephan had difficulty coping with both documentary and oral evidence, not to mention understanding the nature of a formal adjudicative process and its procedural complexities.

How to address the challenges of unrepresented parties involved in a complex process which is outside of their understanding and experience, while maintaining the fairness of the hearing process, is a problem not restricted to this forum.

The increasing participation of unrepresented parties before courts and tribunals has raised many challenges for the justice system. Former Chief Justice McMurtry spoke on the occasion of the opening of the courts:

Access to legal advice and access to justice remains one of the essential bulwarks of our society, of our individual liberties. Our freedoms are at best fragile and they depend on the ability of every citizen to assert in a court or a tribunal his or her rights under law and to receive sound legal advice as to rights and obligations. Our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community.

J. Macdonald J. further commented in a recent matter:

Ensuring that unrepresented persons do not lose their right to a fair trial on the merits of their case by reason of the aforesaid factors is also one aspect of access to justice, in the modern conceptualization of that principle. As Mary Jane Mossman and Heather Ritchie discuss in their essay entitled “Access to Civil Justice: A Review of Canadian Legal Academic Scholarship, 1977‑1987” which is found in “Access to Civil Justice” Carswell, Toronto, 1990, edited by Alan C. Hutchinson, at page 59, the concept of access to justice has moved from one of formal equality of access, which entitles all persons to an equal opportunity to appear before the court, to one of effective equality of access which addresses the specific barriers which impede a specific litigant’s pursuit of justice.⁶

The question of just how a tribunal should deal with such challenges has also been examined extensively. Hill J. looked at the balancing act that must be performed by an adjudicator faced with an unrepresented party:

The duty to ensure a fair hearing will require various types of assistance as the proceeding progresses. This may involve re‑instruction regarding procedures explained at the outset of trial or such as may arise as the trial unfolds. In rendering assistance to the accused, the Court is obliged to take into account the totality of the circumstances, including the sophistication of the accused, language difficulties of the accused, experience of the accused with the workings of the Courtroom, the gravity of the offence charged, the quality and timeliness of disclosure, the nature of the defence and the complexity of the issues at hand.⁷

Access to justice in the accident benefit context has another aspect. As identified by Gonthier J., there is a distinct flavour of consumer protection in the no-fault benefit scheme:

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance.⁸

Arbitration is part of the continuum of the no-fault scheme. Consequently, the process must be open and accessible to insureds whether they are represented or not. This does not mean, however, that an arbitrator can or should act as an advocate for an unrepresented person. Rather, the process may be simplified, explained and some inessential formalities relaxed to make the hearing process more accessible to the unrepresented applicant. Whatever the mitigation or accommodation, the burden of presenting a case remains on the party who brings a claim before a tribunal.

During the course of this hearing, it was necessary from time to time to remind Mr. Shemou of the nature of the adversarial process, and the particular rules which govern arbitrations at the Commission. It was also necessary to address the failure of Mr. Shemou to respond to requests for productions made to both his solicitors, and himself, and the consequences for any non-compliance.

There is no question that Mr. Shemou would have been better off with competent, experienced counsel to represent him, who understood the responsibilities entailed by engaging this process. There is no question that the process would have been smoother. However, such was not the case.

Ultimately however, with the patience of all concerned, it was possible to complete the hearing of the evidence and submissions from both parties within the allotted time, and to provide a process that allowed both parties to be heard.

Productions and other procedural matters:

As noted, the original hearing of this matter commenced on March 27, 2006. Even at that time, although Mr. Shemou was represented by counsel, it was apparent that ING was not convinced that Mr. Shemou had fully satisfied his production obligations. The situation on the recommencement of the hearing on May 22, 2007 was not a significant improvement. In spite of a series of letters requesting certain documents, Mr. Shemou had provided nothing more than had been provided by his earlier counsel.

In addition to having ignored the Insurer’s position on productions, Mr. Shemou attempted to introduce several documents at the last moment, ones that were totally new to the Insurer. To say that his apparent lack of understanding of his obligations within this arbitration raised both concerns and challenges to the hearing process is to understate the issue.

The difficulties of self-represented parties in this particular area are perhaps best exemplified by the production process. Mr. Shemou had a very simplistic view of his obligations in this regard, that was at odds with current practice in the courts and at the Commission. Such a point of view, however, is not without some foundation. For instance, the Practice Code characterizes the production process as follows:

As in mediation, you should have independent documentation about your claim. You and the insurance company should have already exchanged the relevant documents prior to attending a pre-hearing conference. These documents must ultimately be provided to the arbitrator at the pre-hearing and hearing. If necessary, an arbitrator at the pre-hearing may order the production of other important documents. It is in the best interests of both parties to comply with an order for production in a timely manner.

It goes without saying that it is hard to reconcile this simplistic view of production obligations with the reality of the balance of the Practice Code, the jurisprudence at the Commission, and, not to mention the practice in most arbitrations.

Prior to the commencement of the original hearing, certain books of documents had been tendered by both sides. While there may be documents missing that the Insurer would have preferred to have produced, there can be no question that the materials actually served and filed were in compliance with the general provisions of the Practice Code with regard to service and timeliness. Therefore, I ordered that they be admitted, with any decision as to weight being left to final submissions. The Insurer was also allowed to file further documents that were in compliance with the Practice Code.

Mr. Shemou was also allowed to tender several short medical documents, notwithstanding any non-compliance with the Code, since, in at least one case, there was a relation to an issue raised by the Insurer concerning the fixing of dates in this matter, and in other cases an analysis of the balance of prejudice caused by their inclusion led me to the conclusion that it would be just to exercise my discretion to waive the notice requirements in this situation. In retrospect, there can be no ultimate prejudice to the Insurer since no part of my decision turns on information included in those documents.

The end result of the wrangling about what documentary evidence should be before me was that a significant bundle of materials submitted by both sides was before me for my consideration.

There is on old legal adage that there is no property in witnesses. Lord Denning once stated:

That principle is established in the case of a witness of fact: for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available. Any witness who has seen the fact or who knows the facts can be compelled to assist the court and should assist the court by giving that evidence.⁹

By logical extension, where documents are filed in lieu of calling viva voce evidence (as is frequently the case in arbitrations), once the evidence is proffered, there is no property in that evidence. Whether submitted by an applicant or an insurer it is there for the consideration of the adjudicator in his or her role of ascertaining “the truth by the best evidence available.”¹⁰ In this matter, the best available evidence has led me to the conclusions which follow.

Entitlement to Income Replacement Benefits:

Entitlement to income replacement benefits is governed by section 4 of the Schedule:

(1) 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:
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.
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.

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. O. Reg. 403/96, s. 4.

In my earlier decision in this matter, I found that Mr. Shemou had received a valid offer of employment that would satisfy the requirements of section 4(1)3 of the Schedule. The first question now is whether Mr. Shemou was unable to carry out the functions of that position, and if so, for what period of time.

As noted, I have to date made no findings as to the actual requirements of Mr. Shemou’s hypothetical employment. In both parts of the hearing, however, both Mr. Shemou and the Insurer supplied evidence as to the nature of such employment. In addition, Mr. Ikhlas Zaro, the representative of the Alex’s Sports Bar, the employer, testified as to the nature of the work he had offered to Mr. Shemou.

Due to the hypothetical nature of the employment that was, indeed, never actually undertaken by Mr. Shemou, I give only limited credence to his description of the job duties. There are, however, other sources of information about the nature of the proposed work.

In the light of Mr. Zaro’s testimony, I believe that the job offered entailed some general work in the sports bar, including serving the limited drinks menu and some food preparation and service. I also accept that it likely involved menial housekeeping tasks and cleaning, a scenario not unlikely in a small family-run bar.

ING attempted to ascertain the exact nature of the work available at the sports bar without much success. In addition, the January 2004 DAC conducted by Humber Independent Assessments attempted to analyze the job requirements. Their report, while incomplete, does provide some assistance in setting the parameters for Mr. Shemou’s proposed work.

According to the DAC report, Mr. Shemou described his job requirements as:

Working full time, 5 days per week (40 hours per week). In addition to cooking, Mr. Shemou said that the position would have required him to clean the kitchen.

In the absence of a clear definition of the employment, the DAC analyzed the NOC¹¹ requirements for “bartender (hotel and restaurant)” which it felt corresponded with the position in Mr. Zaro’s letter, and “Cook, Restaurant” which it felt approximated Mr. Shemou’s own description.

The “bartender” position equated to light work while the various permutations of “cook” were described as “medium.”¹²

Finding the common ground between Mr. Shemou’s testimony, that of Mr. Zaro and the documentation of generic job requirements referred to in the Humber Independent Assessment report, I think it probable that the proposed duties included light to medium work involving standing, lifting and moving in the context of cleaning the bar and service area, serving beverages, and preparing drinks and snack-type foods.

The comments contained in the job assessment also note the cumulative effect of a potentially fast-paced food service environment on workplace demands.

Indeed, ING in its earlier submissions on the bona fides of the offer of employment implied that the job involved some physical exertion when it argued the unlikelihood of Mr. Shemou to have actually carried out the job duties, in the light of what ING characterized as a compromised pre-accident medical history.

DISABILITY

Notwithstanding some concerns expressed by the Insurer throughout the hearing, the written record is quite clear that Mr. Shemou attended at a health practitioner shortly after the accident, who provided a disability certificate that was forwarded to ING. Mr. Shemou subsequently attended at his family physician where he was examined.

The reports filed consistently state that Mr. Shemou was involved in an accident which resulted in considerable damage to the vehicle in which he was riding. As a consequence, Mr. Shemou complained of, and the disability certificate shows, neck and lower back strains and dysfunction which Dr. Baird classified as a Grade II Whiplash Associated Disorder. Dr. Baird also noted that Mr. Shemou was not able to return to work in a “chef job in a restaurant.”

The OHIP summary submitted by ING shows visits to Dr. Mawani, a general practitioner. Under Mr. Shemou’s name, there are visits commencing February 6, 2003, with the services provided related to: “other diseases of musculoskeletal system and connective tissue sprains, strains, other trauma knee, leg.”¹³

Dr. Mawani’s notes for the visit are virtually illegible, but contain a reference to “MVA”, while a March 3, 2003 record refers to “sore neck and back” “C + 2 spine” amongst a plethora of illegible notations.

An in-home assessment done by a kinesiologist, Abramovici Aviv, notes that Mr. Shemou complained of pain in his leg/back/lumbar areas that he rated at 5-6 out of 10 in severity, but which worsened after physical exercise, stiffness in the back of the neck, headaches and soreness in his shoulders.

The assessment noted that the addition of dizziness appeared to accompany the headaches, especially in the morning. It also noted that Mr. Shemou’s functional abilities were still somewhat compromised:

As a result of the accident, Mr. Shemou, Farid suffered injuries to his low back, and his neck. He currently complains of suffering pain symptoms in his low back region, pain and stiffness in his back of the neck region, his range of motion (AROM) of his low back is limited. Furthermore, he suffers from headaches throughout the day, since the accident.

The assessor went on to conclude that Mr. Shemou was:

only partially capable of doing his regular daily tasks; also, he often experiences pain and discomfort attempting these activities since it aggravates the pain in his low back, and neck.

Likewise, the in-home assessment by Luc Boudreau, at the request of ING dated March 27, 2003, observed:

Based on the objective data, observations, and subjective reporting by the client, it is the evaluator’s opinion that the client has decreased lumbar flexion (approx. ¾ AROM) and difficulties with sustained low level positioning, prolonged heavy lifting/carrying and sustained bending.

Mr. Boudreau, however, added:

The client is expected to be capable of resuming all pre-collision tasks on a gradual basis with the use of proper body mechanics, energy conservation and self-pacing techniques. Education regarding the Hurt vs. Harm principle and the importance of remaining physically active were reviewed during the assessment.

It is expected that following the 4-6 weeks of assistance, the client could resume all pre-collision responsibilities, provided that the client gradually increases his involvement in ADLs and through his involvement in his rehabilitation program.

A progress report from Physiotherapy FIX dated May 9, 2003 noted improvement, but continuing pain symptoms. Dr. Ebadian, the chiropractor who signed the report, noted:

The prognosis is good. It is recommended that Mr. Shemou continues with the remainder of the recommended treatments at which time he will be assessed.

The workplace evaluation which formed part of the DAC identified the proposed work as light or medium, and commented on the need for speed and endurance as part of the job profile. By referencing the above opinions to the evidence of Mr. Shemou concerning his proposed job responsibilities, and the results of the work-site assessment, I find that it was unlikely that Mr. Shemou would have been able to undertake the physical demands of cook/barman for any prolonged period in the 5-6 months following the accident.¹⁴

Beyond that date, however, there is little positive evidence provided by Mr. Shemou other than references by Dr. Mawani to chronic low back pain, and some psychological issues which may or may not be attributable to the motor vehicle accident.

Based on the paucity of further reports filed by Mr. Shemou, I have no clear understanding of what Mr. Shemou’s status was in the following months. There are subsequent reports that seem to accept an initial disability but report no ongoing accident related impairments. The Insurer pointed to the significant underlay of pre-accident problems that had not necessarily resolved at the time of the accident. The West Park Healthcare Centre DAC, which reported on June 12, 2003, would seem to be consistent with such an approach. Collectively, the DAC could find no “specific organic cause for Mr. Shemou’s presentation.” The same opinion was taken by Dr. Paul Robert, orthopaedic surgeon who examined Mr. Shemou on August 29, 2003. Clearly, Mr. Boudreau’s earlier prediction of the time frame for the resolution of MVA related problems seems to be well-supported.

Mr. Shemou testified to his continuing significant problems that could affect his ability to work efficiently.¹⁵ However, I find that the absence of significant evidence in favour of ongoing disability arising from the accident suggests that the effect of the soft tissue injuries identified in the original disability certificate had diminished and that by the end of May 2003, as predicted by Mr. Boudreau, among others, Mr. Shemou could resume his pre-accident activities.

Drawing inferences in this matter from the failure to call witnesses or the failure to tender documents can be problematic. Given the difficulties between Mr. Shemou and his lawyer, and between that lawyer and ING in providing requested documentary evidence, I cannot be certain that the failure to produce further reports means that any such reports would have been unfavourable to Mr. Shemou. I can, however, at the very least, accept it as suggestive that Mr. Shemou had no other independent evidence to bolster his case.

While I have looked to all the evidence before me to discover whether Mr. Shemou was likely disabled after the accident in question, it was incumbent upon him to do his utmost to provide evidence in support of his claim.

An unrepresented person still has access to a witness summons to compel attendance of necessary witnesses. Mr. Shemou was not totally without resources. He had the assistance of Mr. Stephan. He was able to obtain the attendance of Mr. Zaro, the putative employer. Likewise he could have arranged for the attendance of Dr. Mawani, or some other treating physician who could have testified as to the outcome of Mr. Shemou’s initial injuries. Prior to the resumption of the hearing, I wrote to the parties summarizing the remaining issues in dispute and reminding them of the necessity to prepare for the resumed hearing. Needless to say, Mr. Shemou did not arrange for Dr. Mawani’s attendance. Nor did he obtain legible records or reports that covered the balance of 2003, or the intervening years until the hearing of this matter. What he did obtain on the day of the resumption of the hearing was a brief, handwritten note from Dr. Mawani outlining Mr. Shemou’s current complaints. Without even dealing with the question of whether the report was properly served in the context of the hearing, it was in and of itself clearly inadequate.¹⁶

In the absence of direct medical testimony or comprehensive reports, I find that there is nothing, either tendered by the insured or the insurer, to convince me that the accident-related disabilities did not resolve in the 5-6 months following the accident.

While I acknowledge Mr. Shemou’s current complaints and distress, I cannot find sufficient credible evidence to link them to the motor vehicle accident. Mr. Shemou, however, is entitled to income replacement benefits as a result of his initial disability. The period of the benefits should be from one week post-accident until May 31, 2003, a date that approximates the anticipated resolution of Mr. Shemou’s soft tissue injuries.

Amount of Income Replacement Benefit:

Both Mr. Shemou and his putative employer testified that Mr. Shemou was to receive $400 per week as salary. This is consistent with the employer’s letter (written post-accident), which also listed the rate at $400 per week. Unfortunately, given the time that elapsed between the offer of employment and the hearing, Mr. Zaro’s imprecise recall of some of the circumstances surrounding the salary figure, and the reality of Mr. Shemou’s lack of significant recent experience in the restaurant trade, the $400 figure put forward does not seem credible.

ING has pointed out that such an amount conveniently coincided with the maximum amount payable under the Schedule, and is far greater than the contemporary legal minimum wage for restaurant workers which they placed at $6.85 per hour, while those who serve alcohol received $5.95 per hour.

There is no evidence before me of the prevailing salary grid in the Sports Bar at the time that Mr. Shemou was offered employment. Both Mr. Rooz, counsel for Mr. Shemou, and Mr. Zaro, the employer, had been requested to provide more detailed salary information at many times prior to this hearing. Apart from the job offer letter, no information was provided until Mr. Zaro actually turned up to testify at the arbitration.

In his testimony, much was made of Mr. Zaro as a successful businessman with multiple interests, including at one point, the bar in question. In the absence of some indication of prevailing salaries at the sports bar at the time Mr. Shemou was hired, I am not convinced that a successful entrepreneur would necessarily offer wages significantly above the minimum levels to unskilled, untested workers such as Mr. Shemou, especially those performing what I have earlier characterized as fairly basic work.

Nor am I convinced that Mr. Shemou was qualified as a barman, or that the bulk of his tasks centred around the service of liquor. Therefore, I find that the minimum wage that Mr. Zaro would have paid would have likely been based on the general restaurant wage of $6.85 per hour, as identified by the Insurer. This would translate to a weekly gross income of $274.00 which I find to be the appropriate rate on which to base Mr. Shemou’s IRBs.

Calculated roughly, 80% of the $274.00 per week wage rate would be $219.20. Subject to any further submissions on the calculation of the quantum of the income replacement benefits received during the 30 days which follow the release of this decision, an order will go requiring ING to pay income replacement benefits at the rate of $219.20 for the period commencing one week following the accident until May 31, 2003, inclusive.

Housekeeping:

Mr. Shemou claimed housekeeping expenses from the date of the accident at the amount of $100 per week. The Schedule provides:

(1) The insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident 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 the housekeeping and home maintenance services that he or she normally performed before the accident.

(2) The amount payable under this section shall not exceed $100 per week

A letter from Mazin & Rooz dated March 17, 2003 states that the housekeeping services were provided by Norma Graham, whose “chores include: mobbing (sic), sweeping, dusting, washing dishes and garbage removal.” The letter went on to state that “the Housekeeping service is provided a few days a week in the evening, on a regular basis.”

Despite further correspondence that suggests that there were no further details available of services delivered, Mazin & Rooz delivered a further claim dated April 1, 2003 for some $450 of housekeeping services, in addition to the $400 claim already submitted on February 24, 2003.

A further April 14, 2003 letter from Mazin & Rooz stated “my client cannot provide any additional details regarding the housekeeping services provided to him as no special log was drafted to show the dates and the breakdown of the above-captioned duties.” Notwithstanding this lack of information a further housekeeping “invoice” was sent on May 12, 2003. This same pattern continued throughout the summer of 2003.¹⁷

While Mr. Shemou did not formally withdraw the housekeeping question from arbitration, the only evidence submitted in support of the claim formed part of Mr. Shemou’s general evidence concerning his disability. Mr. Shemou was still unable to provide any detailed information regarding the services rendered. The service provider, Ms. Graham, did not testify.

While the early medical reports suggest that some housekeeping assistance might have been in order, without an indication of the specific needs addressed and the services provided it is next to impossible to determine whether the housekeeping services billed were “reasonable and necessary.” Consequently, I make no award as to housekeeping expenses.

Interest:

Mr. Shemou claims interest on all payments owed to him by ING. The Schedule provides as follows:

(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Part. O. Reg. 403/96, s. 46 (1).

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

Once a payment is overdue, the Schedule mandates the payment of interest on the overdue amount. However, since the definition of “overdue” hinges on the date that a specific benefit is payable, other sections of the Schedule may have an effect on the calculation of interest.

Certain other provisions in the Schedule have the effect of suspending an insurer’s obligation to pay a benefit when an insured is in breach of his or her obligations under the policy. For example, section 33 of the Schedule provides for the mandatory provision of certain information “required to assist the insurer in determining the person’s entitlement to a benefit.”

(1) A person applying for a benefit under this Regulation shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:
Any information reasonably required to assist the insurer in determining the person’s entitlement to a benefit.

The consequence of the failure to provide such information is set out below:

(2) The insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection (1) or (1.1).

It is clear from the written materials that ING consistently requested necessary information concerning Mr. Shemou’s job offer, and, aside from the short written note, received none. There can be no question that the issue of whether there was a valid job offer was key to Mr. Shemou’s entitlement to income replacement benefits.

While many factors may have been at play in Mr. Zaro’s failure to come forward and clarify the employment issue, it is clear that reasonable information on which a determination could have been made was not available until Mr. Zaro himself testified at the hearing in this matter.

Consequently, I find that necessary information to determine Mr. Shemou’s benefit was lacking, and remained so until the final determination of the job issue. Hence, pursuant to section 33 of the Schedule, no benefit was payable until such time as the necessary information was provided. In this unusual case I find that date to be that of the issuance of my first decision in this matter which finally cleared up any confusion concerning the offer of employment.

The date on which payments were first “owing” would be April 19, 2007, the date of my decision on the validity of the employment contract. Interest at the statutory rate is to be calculated from that date.

EXPENSES:

A claim for expenses has been made by both sides in this matter. Rule 75.2 of the Code sets out the criteria for an award of expenses:

75.2 The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are: a) each party's degree of success in the outcome of the proceeding;

b) any written offers to settle made in accordance with Rule 76;

c) whether novel issues are raised in the proceeding;

d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

Although throughout much of the latter hearing process Mr. Shemou was unrepresented, he had a counsel of record who prepared the document briefs which were submitted on Mr. Shemou’s behalf, and attended at the first day of hearing in March of 2006.

Mr. Shemou has enjoyed some limited success in pursuing his claim and may be entitled to an award of expenses on that basis. However, he was also unsuccessful on many other matters put forward in his application for arbitration. There also have been allegations that his actions or the actions of counsel retained by him have “tended to prolong, obstruct or hinder the proceeding.”

As noted earlier in this decision, I reserved on the attribution of costs arising from the adjournment of March 2006. At that time, I also noted that an expense order might be made against the counsel of record, Mr. Rooz, arising from that adjournment. In addition, the order removing Mr. Rooz as counsel of record was made subject to any responsibility he might bear for costs pursuant to section 282(11.2) of the Insurance Act.

While I would hope that the parties will be in a position to deal with the issue of expenses, a further hearing on that issue may be necessary if the Insurer continues to maintain that Mr. Rooz should be found liable for any part of an expense order.

Consequently, in the absence of an agreement on the disposition of expenses in this matter, any party wishing to pursue an expense order shall file a summary of its claim, together with a bill of costs, if applicable, and serve it on the affected parties within 45 days of this decision. A date may then be set to determine this remaining issue.

August 13, 2007

John Wilson

Arbitrator

Date