Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 65

FSCO A06-000931

BETWEEN:

SANJAY MATHUR

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Muir

Heard: March 19, 20 and 21, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Idan Erez for Mr. Mathur Darrell March for RBC General Insurance Company

Issues:

The Applicant, Sanjay Mathur, was injured in a motor vehicle accident on September 27, 2005. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Mathur applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the outset of the hearing a number of preliminary procedural issues were dealt with related to the late filing of documents by Mr. Mathur, the very late identification of witnesses to be called at the hearing; as well as the failure of Mr. Mathur to comply with Orders of the pre-hearing arbitrator. Several oral rulings were made with respect to these issues. In particular I admitted Mr. Mathur's document brief in toto despite it being served on RBC a day late, for the reason that it was only a day late and contained little if anything that was truly new to the Insurer. I also ruled that Mr. Mathur could not advance his special award claim as his representative had failed to comply with an Order to provide particulars of the claim, made by the pre-hearing arbitrator. As a consequence of the failure of Mr. Mathur to comply with a further Order to produce business records, I directed that Mr. Mathur make best efforts to produce his income tax returns for the years 2004, 2005 and 2006 if they existed. In the end, Mr. Mathur was only able to produce an income tax return for 2004. A further decision granting leave to Mr. Mathur to call two witnesses not previously identified, was communicated to the parties in a letter decision dated March 19, 2007.

As well Mr. Mathur, at the outset of the hearing, withdrew one of two section 24 claims. The second was withdrawn during final argument. RBC asked that I reject these withdrawals and dismiss the claims. I have considered Rule 70 of the Dispute Resolution Practice Code and while I consider that I have a theoretical jurisdiction to do what has been asked, no particular reason was advanced for this request. In the absence of any rationale for doing so, I do not know why such a determination adds anything to the relief that is squarely provided for in the Rule, in particular, as I indicated during argument, an Order of Expenses.

On the other side, RBC maintained a position set out at the pre-hearing, that Mr. Mathur was precluded from receiving caregiver benefits and housekeeping benefits because he failed to attend a disability DAC. At the end of Mr. Mathur's case it remained an issue, no doubt causing Mr. Mathur to prepare to deal with the issue in argument. As it turns out it was not argued by RBC, although not withdrawn. As I indicated in the hearing there may well be expenses consequences for that strategic decision as well.

As a consequence of all of that, the remaining issues in this hearing are:

Is Mr Mathur entitled to a caregiver benefit from September 27, 2005 to date and ongoing pursuant to section 13 of the Schedule?
Is Mr. Mathur entitled to a housekeeping and home maintenance benefit from September 27, 2005 to date and ongoing, less amounts paid, from September 27, 2005 to date and ongoing pursuant to section 22 of the Schedule?

Result:

Mr Mathur is not entitled to a caregiver benefit from September 27, 2005 to date and ongoing, less amounts paid pursuant to section 13 of the Schedule.
Mr. Mathur is not entitled to a housekeeping and home maintenance benefit from September 27, 2005 to date and ongoing, less amounts paid, from September 27, 2005 to date and ongoing pursuant to section 22 of the Schedule.

EVIDENCE AND ANALYSIS:

Mr. Mathur is a 43 year old, married father of two children living in Brampton. His children, at the time of the accident, were 2 years old and 13 years old. In addition to his immediate family, his father also resides with him. Mr. Mathur is an educated man and was trained as veterinarian in India. For some period of time he served in the Indian army as veterinarian. Mr. Mathur and his family came to Canada in 2000 or 2001. He now works as a self-employed insurance salesman. He is able to do much of his work from home. However it is also true that he is required to spend considerable time away from home in face to face meetings in prospective clients homes or places of business. In general terms Mr. Mathur stated that he would be home during the day until 4:00 p.m. more or less, when his wife would return from her day-time activities and "take-over". Once his wife was home, Mr. Mathur would then get on with his business day, going to do the kind of face-to-face work that was essential to his business, in the late afternoon and evening as well as on the weekends. Prior to the accident Mr. Mathur would work, he claimed on several occasions, 7 days a week and 10 hours per day. As a result he was, prior to the accident, a highly successful salesman.

Subsequent to the accident, Mr. Mathur claims that he is substantially unable to perform the essential tasks associated with his caregiver and housekeeping responsibilities. He claimed that he had difficulty, driving although the evidence established that he was only prevented from doing so for a short period of time. His hours of work were sharply reduced from approximately 70 hours per week to a little less than half of that amount to 25 to 30 hours per week for at least a period of time. More to the point, Mr. Mathur claims that because of his back pain, neck pain, inability to focus and concentrate he was unable to perform his caregiving and childcare responsibilities.

There was not a great deal of detail provided about the nature of these responsibilities. It was readily conceded by Mr. Mathur that his 13 year old daughter was in many respects self sufficient and his caregiver responsibilities were primarily general supervision, preparing meals during the day, driving her to and from school and other engagements as well as assisting with her homework. As for the 2 year old these duties would have included bathing, feeding, diaper changes etc. What was not set out in any detail was when these duties were performed during the day and the week and how they fit in with a quite demanding work schedule, particularly after 4:00 p.m. during the week and on weekends.

Mr. Mathur also testified that he was responsible for all of the housekeeping and home maintenance responsibilities prior to the accident. He made this claim despite the fact that his spouse was home each evening and on the weekends when he would be on the road much of the time, because he said that his wife was not well. He testified that although it was not diagnosed at the time, it has subsequently been discovered that his wife suffers from hypo-thyroidism. As a consequence, she was very fatigued at the end of the day and was not able to participate in these duties to any significant degree.

There is only limited medical evidence available. Mr. Mathur never attended his family physician for treatment of his injuries, rather he attended a physiotherapy clinic close to his home. RBC, shortly after accepting the claims of Mr. Mathur, had him assessed in a series of insurer assessments. Ms Andrea Cottee, Occupational Therapist, concluded that Mr. Mathur did not require assistance with his housekeeping activities. Dr, Malcolm, Orthopaedic Surgeon, Dr. Day, psychologist, as well as S. Samanta, Physiotherapist, and Pauline Camara, Kinisiologist, each concluded that Mr. Mathur was not substantially unable to perform his pre-accident activities.

Mr. Mathur was assessed by two chiropractors in the Fall of 2006. Two disability certificates prepared by Dr. Calicchia were admitted into evidence. Dr. Calicchia also testified. His evidence was that as of September 2006 he found that Mr. Mathur was still likely experiencing some lower back pain and discomfort. He also concluded, largely based on what Mr. Mathur told him, that he was prevented from performing some of his housekeeping and childcare responsibilities. Dr. Calicchia made it clear that his opinion was not informed by any significant understanding of what these duties would have been and was based largely on what he was told by Mr. Mathur. In short, his opinion was that based on his physical examination, it was possible that Mr. Mathur was experiencing difficulties. Accordingly, he recommended a more complete investigation of Mr. Mathur's functional capacity.

An in-home assessment was conducted by a second chiropractor, Mikhail Shteynberg, who recommended 10 hours of housekeeping assistance per week in a report dated November 5, 2006. In a follow up report dated February 6, 2007, Dr. Shteynberg recommended 4 hours of housekeeping assistance. Neither report makes any specific reference to Mr. Mathur's caregiving responsibilities other than that they were shared with his wife. Both reports indicate that he has resumed many of his pre-accident activities and was somewhat limited in his ability to perform the heavier tasks. These two reports were unhelpful.

The timing of these assessments is also significant in that although the claims for housekeeping and home maintenance as advanced are to date and ongoing, there is almost no other evidence of what kind of assistance would have been required beyond the Spring of 2006.

A psychological assessment, dated January 7, 2007, was relied on by Mr. Mathur. In their report Dr. Perlmutter and Ms. B. Hann (R.N.) endorse Mr. Mathur's statements to them respecting his level of impairments. In their report they conclude that as a result of his psychological impairments, Mr. Mathur is substantially unable to perform his pre-accident employment duties as well as his housekeeping responsibilities. There is no specific reference to his ability to perform his caregiving duties although it is suggested that there was a "moderate level of impairment in his parental activity and in his volunteer or community work."

I have considered the evidence and submissions of the parties including a review of the material filed at the hearing and have concluded that Mr. Mathur is not entitled to any further caregiving or housekeeping and home maintenance benefits.

The Caregiver claim is founded in part on the following general proposition: that despite his long hours of work, because Mr. Mathur was able to do some work and be at home during the day he had exclusive responsibility for his 2 year old son, as well as his daughter, until his wife came home at around 4:00 p.m.. Of course his daughter would normally be in school for the bulk of this time but Mr. Mathur testified that he drove her to school and picked her up each day. He then was able to get on with the face-to-face aspects of his work in the evening and on weekends.

As a general proposition, Mr. Mathur's claim to be the primary caregiver and largely responsible for other homemaking duties is plausible. RBC agreed as well and paid these benefits to Mr. Mathur until late January 2006. The difficulty in making a finding of entitlement beyond that time is a product of the manifest inconsistencies and discrepancies in Mr. Mathur's evidence respecting his responsibilities pre-accident as well as his needs post accident. These factors combined with the lack of detail of his responsibilities prior to the accident, most particularly with how they related to what his wife did and did not do, make it entirely unclear what Mr. Mathur's caregiver and housekeeping needs were as a result of the injuries he sustained in the accident. To be clear I accept, as RBC did, that Mr. Mathur was injured in the car accident and that he did suffer impairments that limited his ability to perform some of his pre-accident activities for a period of time. However it appears, based on the evidence before me that he has been reimbursed for those expenses to the extent that they can be attributed to the accident.

By way of a glaring example of the problems in the evidence, Mr. Mathur stated in his evidence that the caregiver and housekeeper came in to his home Monday to Friday for four or five hours. At first blush this seemed plausible given Mr. Mathur's needs, as a result of the accident, to cover his caregiving responsibilities on weekdays before his wife came home. However the invoices submitted to RBC indicate that the service provider was present seven days per week, for about 4 hours each day. Aside from the obvious inconsistency between Mr. Mathur's oral evidence and the invoices it is also not clear why the same level of housekeeping and more particularly caregiving services were required on the weekends when Mr. Mathur's spouse was at home and according to Mr. Mathur he would be out on the road doing his face to face work, leaving his spouse in charge.

The invoices also indicate that housekeeping and caregiving services were provided on the date of the accident. Mr. Mathur conceded that this was in error but was not able to explain how such an obvious error could be made by both himself and his service provider who purportedly signed the invoices as well, particularly given Mr. Mathur's insistence that they were based on detailed notes of what was done each day and for how long.

Mr. Mathur testified that at the time of the accident he was alone in the car. When asked where his son was at that time, he conceded he was at home, but later insisted that this was the one and only time he had ever left his son alone with the child's grandfather. He later stated that when driving his daughter to school after he had taken his wife to her workplace, he would take his son with him and began to do so when he resumed driving his daughter to school within 10 days or so of the accident. This story lacked the ring of truth and appears to be inconsistent with surveillance from March 2006 that show him driving his daughter to school without the infant in tow. At another point in time Mr. Mathur stated that he was "reluctant" to leave his son alone with his father, suggesting that on occasion he would do so, if only for short periods of time. Such an explanation would have had the ring of truth. Mr. Mathur's father was not incapacitated and would appear to have been considered competent on this one occasion. Why not at other times, such as when doing the five minute drive to school each morning? Morever, if as Mr. Mathur insisted he never left the child alone with his father, what was it about the task at hand this day that made it imperative on September 27, 2005? Mr. Mathur testified that he was on his way to Staples to make photocopies of some documents, although he could not remember what they were. His explanation was not convincing. I find it more likely that he would leave his son alone with his father for brief periods of time while he attended to other duties.

Mr. Mathur testified that he was solely responsible for almost all of the housekeeping and care giving pre-accident because of his flexible work arrangement and the fact that his wife was ill. Although at first blush plausible, I am at the end of the day not persuaded that it accurately reflects the reality of the Mathur household.

To begin with, Mr. Mathur claims to have worked up to seven days a week, 10 hours per day prior to the accident. It is implausible, if not impossible, that in addition he was the sole housekeeper and caregiver, particularly given that he would have to be out of the home for significant periods of time in the evenings and on weekends. This assertion is also contradicted by numerous statements in the documentary material that indicate that these duties were shared, or that he was responsible for 50% of the housekeeping. Many of these references are in Mr. Mathur's own reports. I recognise that it is dangerous to place too much weight on reports of assessors, however the reports are too numerous and too consistent to ignore.

Finally it is entirely unclear to what extent and for how long Mr. Mathur was prevented from returning to his pre-accident activities. For example he conceded, and various reports confirm that he was returning to some of his pre-accident activities within days of the accident. He returned to work within 7 to 10 days. He admitted that he could do dusting and other light tasks as early as November 2005 and without doubt by early in 2006. Despite this concession the claim includes time for dusting and other light work.

He began driving his wife and daughter to their work and school etc. within a short period of time after the accident. When confronted with the apparent contradiction between the claim not to ever leave his son with his father alone, Mr. Mathur explained that he took his son with him when driving his daughter to school. In addition to the fact, as noted earlier, that this is contradicted by some surveillance, it is also raises questions about his inability to provide care to the 2 year old. If he could dress the child, including winter gear by November/December carry him to the car, and strap him into a car seat, it is not at all evident that there would be much associated with caregiving a 2 year old that Mr. Mathur could not perform.

Many of these evidentiary problems could have been resolved had either or both of Mr. Mathur's spouse or the service provider been called to give evidence. Neither were although there was some indication at the outset that Mr. Mathur's spouse would give evidence. RBC asked that adverse inferences be drawn for the failure to call either of these individuals. Mr. Mathur responded quite correctly that there are a host of reasons why witnesses are not available for hearing and that a negative inference is not necessarily appropriate. I do not think it necessary to draw the negative inferences, but it is plain that in the absence of the evidence of these two witnesses to flesh out and clarify the issues in this case, the evidence of Mr. Mathur was simply insufficient to establish any further entitlement to either of these benefits.

For all of these reasons I have determined that Mr. Mathur has not established on a balance of probabilities, entitlement to either of the benefits claimed.

EXPENSES:

Both parties sought their expenses and they advised jointly that there was no offer to settle that I must consider. I did not hear any further submissions on the question of entitlement. I am not prepared to make a determination of entitlement without further submissions from the parties, if they wish, on the effect of the relatively recent changes to the Expenses Regulation, which has sparked some degree of arbitral debate about their impact.

If the parties cannot therefore agree on their own, I will entertain submissions on entitlement and quantum in accordance with Rules 75 to 70 of the Dispute Resolution Practice Code (Fourth Edition, Updated — October 2003).

March 30, 2007

David Muir Arbitrator

Financial Services Commission of Ontario