Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 98
FSCO A06-000287
BETWEEN:
MICHAEL KERNAGHAN
Applicant
and
AXA INSURANCE (CANADA)
Insurer
REASONS FOR DECISION
Before:
Maggy Murray
Heard:
February 19, 2007 in Tillsonburg, Ontario.
February 20 and 21, 2007 in Ingersoll, Ontario
Appearances:
Richard J.T. Shaheen for Mr. Kernaghan
David Murray for AXA Insurance (Canada)
Issues:
The Applicant, Michael Kernaghan, was injured in a motor vehicle accident on May 30, 2003. He is right hand dominant and his injuries as a result of the accident were to his right arm and hand. He applied for and received statutory accident benefits from AXA Insurance (Canada) ("AXA"), payable under the Schedule.1 AXA paid Mr. Kernaghan non-earner benefits2 at the rate of $185 per week and took the position that he was not entitled to $320 per week after 104 weeks.3 The parties were unable to resolve their disputes through mediation, and Mr. Kernaghan 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 Mr. Kernaghan entitled to receive a non-earner benefit of $320 per week pursuant to subsection 12(3) of the Schedule from May 31, 2005?
Is AXA liable to pay Mr. Kernaghan's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Kernaghan liable to pay AXA's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Mr. Kernaghan entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Result:
Mr. Kernaghan is entitled to receive a non-earner benefit of $320 per week pursuant to subsection 12(3) of the Schedule from May 31, 2005 onwards.
Mr. Kernaghan is entitled to interest of 2 per cent per month compounded monthly on the amount of $135 per week from August 28, 2005 until the benefit is paid in accordance with subsection 46(2) of the Schedule in respect of the non-earner benefit.
The issue of expenses is deferred.
I. LAW:
The relevant portions of s.12 of the Schedule state:
(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if ...
- The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,
ii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training.
(2) Subject to subsection (3), the amount of the non-earner benefit shall be $185 for each week that the insured person is eligible to receive the benefit.
(3) If a person qualifies for a non-earner benefit under paragraph 3 of subsection (1) and more than 104 weeks have elapsed since the onset of the disability, the amount of the non-earner benefit shall be $320 for each week that the insured person continues to be eligible to receive the benefit.
II. BACKGROUND:
Under s.12 of the Schedule a person is entitled to a non-earner benefit if he or she suffers a "complete inability to carry on a normal life." If the insured satisfies this test he is entitled to $185 a week from 26 weeks after the accident onwards as long as he satisfies the qualifying test. AXA conceded that Mr. Kernaghan suffered a complete inability to carry on a normal life and paid non-earner benefits up to and beyond the 104-week mark at the rate of $185 per week.4
For those like Mr. Kernaghan, who completed their education less than one year before the accident, the test changes at the 104-week mark to provide an increased benefit of $320 per week.5 The insured must still satisfy the "complete inability" test. In addition, if the insured proves that his employment in the period from the time he completed his education to the time of the accident did not reflect his education and training, then he is entitled to $320 per week after the 104-week mark.
AXA conceded that Mr. Kernaghan satisfied the "complete inabilty" test at the 104-week mark but argued that his employment between the completion of his education and the accident reflected his education and training.
The main question is whether the work Mr. Kernaghan did after high school and before the accident "reflected his education and training."6 The secondary question, which counsel for AXA raised for the first time in his closing submissions, is whether Mr. Kernaghan completed his education less than one year before the accident.
Mr. Kernaghan, Connie Kernaghan (Michael Kernaghan's mother), Elizabeth Menard (vocational evaluator), Judy Ellenberger (adjuster) and Catherine Chambers (graphic designer) testified at the hearing.
III. EVIDENCE:
a) Evidence Regarding Mr. Kernaghan's Education and Training:
Mr. Kernaghan graduated from grade 12 on June 26, 2002 (less than one year before the accident). He testified that, amongst other subjects, he took art courses in high school and was proficient at sketching. For example, one of his high school teachers selected him to sketch an existing building in Tillsonburg, Ontario, and his sketch is on display in Tillsonburg. He enjoyed visual arts courses in particular. After graduating from high school, he intended on working for one year, saving his money, and going to college to study graphic arts/design. As of the date of the accident, Mr. Kernaghan had saved little money (less than $6,000) and had not applied to college, nor was he aware of the "process" for going to college.
The following chart7 outlines the courses Mr. Kernaghan studied in high school and provides the corresponding marks he achieved, together with the course descriptions (where available):
Grade Level
Course Title
Description
Mark
9
Visual Arts - Fine Arts
No description provided.
92
9
English
No description provided.
81
9
Mathematics
No description provided.
77
9
Contemporary Canada XX Century Life
No description provided.
76
9
French (core)
No description provided.
79
9
Science
No description provided.
74
9
Physical & Health Education
No description provided.
78
9
Art & Technology
No description provided.
86
10
Visual Arts - Fine Arts
Continued development of elements of art. In-depth principles of design emphasis on drawing, painting (print-making) and sculpture. Canadian art history.
76
10
Geography - Canada
A thematic regional development and resource study of Canada. Focussing on manufacturing, agriculture, population and native studies, weather and climatic changes.
71
10
Science
Interactions; organisms and their internal and external environments; heat; applied chemistry; magnetism and electricity.
67
10
Communication Technology
No description provided.
74
10
Data Processing Concepts
Computers 1- Introductory Computing: Logo & Pascal Programming, spreadsheets, data base & word processing, computer technology and the role of the computer in society.
60
10
English
This course focuses upon different points of view as students attempt to clarify their positions in an ever-shifting universe. The traditional skills are used in an integrated manner to identify & evaluate
64
10
Mathematics
Powers, roots, radicals, real numbers; statistics; relations; equations & inequalities; polynomials & rational expressions; co-ordinate geometry; the straight line; coordinates & transformations; deductive & 3-D geometry.
50
10
Physical & Health Education
Control systems of the body. Conditioning as related to sports skills & improvements, team play. Health portion will encourage students to choose positive life styles, nervous system, alcohol & other drugs, communication.
82
11
Visual Arts - Fine Arts
Greater variety of media and techniques. Include acrylic, watercolour, lettering, in-depth drawing and sculpture methods. Art history, Canadian art. Engraving.
66
11
Mathematics for Technology
Rational and real numbers; polynomials; equations; powers, roots and radicals; measurement and its applications; geometric figures; trigonometry; straight line; selected business topics.
90
11
Physical & Health Education
Sport skills and team play. The health component will include studies in man's basic needs & their satisfaction with-in his social framework as well as mental mechanisms and mental health.
66
11
Computer Science
Programming in Logo, Linkway, and Pascal. Dos, Logic Computer Technology.
56
11
English
This is a thematically integrated course which closely examines the way in which people attempt to retain their individuality despite the pressures exerted by society. The writing program focuses upon the scholarly essay & will extend to include a range of writing for a variety of purposes & audiences. This course is a continuation of ENG 2A1.
58
11
Geography - Physical
A study of the universe and its component parts. The physical nature of the planet Earth - geomorphology, geology, meteorology and climatology, gl (sic)
61
11
Communication Technology
A broad based technology program that covers the theory and practical aspects of video production, filming, editing, animation, and desktop publishing
66
11
Media Studies
No description provided.
56
11
Regional Geography: Travel & Tourism
No description provided.
66
12
Mathematics for Technology
Real numbers, powers, and radicals; polynomials and rational expressions equations; properties of geometric figures; trigonometry; forces & vectors; analytic geometry; annuities and mortgages.
56
12
Communication Technology
Application and expansion of theoretical knowledge, skills, acquired in previous communications classes, electronic theory, animation, autocad, 3D studio videtoaster, script writing, story board development, final edit.
64
12
Physical & Health Education
This co-ed program focuses on lifetime & recreational activities such as badminton, racquetball, golf, tennis, archery, volleyball. This health course looks at successful family living, sex education, marriage & parenting.
86
12
English
This is a general level course focussed upon the problems & challenges of the twentieth century. The literature elements of the course will be centred upon thematic units that examine the problems of modern people, especially young Canadians, looking at their challenges as they face the world of the future. The composition unit will be directed toward practical writing values such as report writing, correspondence & expository writing techniques. This course is a continuation of ENG 3G1.
70
12
Visual Arts - Fine Arts
No description provided.
80
Mr. Kernaghan studied Visual Arts and Fine Arts in high school from grade 9 to grade 12.
In grade 9, he received his highest grade in Visual Arts. Mr. Kernaghan's second highest grade in grades 10, 11, and 12 was also in Visual Arts.8
Mr. Kernaghan's grade 9 teacher for Visual Arts, Mrs. H. Lamont, stated in his Student Achievement Report for Term One:9
Michael has a natural artistic ability and a mature responsible attitude that help him create some well planned, beautifully executed drawing assignments. I look forward to more exciting results next term. Well done.
In Mr. Kernaghan's grade 9 Student Achievement Report for Term Two, Mrs. Lamont further commented:10
Michael applies all or almost all of the required Drawing skills and Perceptual exercises. He shows understanding of all of the basic Elements & Principles of Design. He uses tools and art materials correctly with little or no assistance. Wow Michael, this was your unit. You have a very precise and mature style that are developing nicely. You have an eye for detail and to your credit, are not satisfied for much less than perfection, resulting in some fine, meticulous and aesthetically pleasing drawings. Keep up the excellent attitude and effort.
In a letter dated April 29, 2004, Mr. Rabb, who taught Mr. Kernaghan Visual Arts in grade 11, stated:11
My perception was that he had a great deal of drawing ability and excelled in areas of technical and graphic design. He was self motivated and obviously enjoyed creating and viewing works of art. I gave Mike a special architectural drawing assignment to create a presentation quality piece of a local organization. Throughout this assignment he demonstrated an ability to plan, research and create as well as interact with me personally for ideas and opinions. Mike's result was a success and was used for a local town council meeting.
In a letter dated May 6, 2004, Ms. Gardner, who taught Mr. Kernaghan in grades 10 and 11, stated:12
I have had the privilege of teaching Mr. Kernaghan for two years ... It may be more accurate to say that I was the facilitator of his learning. ... His work was always exceptional. Not only was he able to achieve incredible results in his art class, the next year I taught him Communications Technology, where he took on incorporating his artistic abilities in programs such as graphic design using Adobe Photoshop as well as programming in html using notepad. His work is always done with a high degree of care and professionalism. He has an incredible sense of aesthetics. I have kept several examples of Mike's work to use as exemplars, and I am using them in my Communications Technology class this week.
Mike has considerable artistic ability. He is a skilled worker who holds himself to a high standard. ... Mike is able to work with very little supervision, and has turned in excellent results.
This young man will be extremely successful in whatever projects his keen mind and abundant energy lead him to undertake.
Connie Kernaghan, Michael Kernaghan's mother, testified that her son had an interest in art from grade two onwards. Throughout his schooling, Mr. Kernaghan was asked to participate in various artistic projects, such as developing a coat-of-arms for a school and designing topic pages for a cookbook. He did not go to college directly after high school because his family could not afford it. Mr. Kernaghan planned on taking a year off between high school and college to earn money to pay for college. He wanted to study visual arts and design at college.
b) Evidence Regarding Mr. Kernaghan's Employment After Completing High School:
The Agreed Statement of Facts13 and Mr. Kernaghan's testimony, outline Mr. Kernaghan's jobs following graduation as follows:
i. Annex Publishing & Printing Inc.: Mr. Kernaghan was employed full-time as a "Newspaper Bundler", a repetitive job with duties consisting of transferring newspapers to and from a machine which secured newspapers together. Mr. Kernaghan was employed in this position from August 15, 2002 to October 31, 2002, until the employer terminated Mr. Kernaghan. This was a "grunt job" according to Mr. Kernaghan.
ii. Wellmaster Pipe and Supply Inc.: Mr. Kernaghan was employed full-time as an "Iron Worker." It was a seasonal job. He watched a 20 minute video to learn how to use the machines. His job duties consisted of operating a machine that cut metal into pieces, reading specifications for the metal pieces on blue prints, setting specifications on the machine, and carrying metal to and from the machine. Occasionally, Mr. Kernaghan welded metal together. Mr. Kernaghan was employed in this position from February 22, 2003 to April 17, 2003, until his employer laid him off. This was also a "grunt job" according to Mr. Kernaghan.
iii. Cedarcrest Wood Products Ltd.: Mr. Kernaghan was employed as a "Furniture Manufacturing Labourer" for one day on May 14, 2003. Mr. Kernaghan was required to work 10 hour shifts, plus weekends, for which he would not receive overtime pay. This was a very physical job.
iv. Mike Evans: Mr. Kernaghan was employed as a "Turkey Catcher" for approximately five hours on May 30, 2003, the morning of the accident. It was a one day job. His job duties consisted of catching and moving turkeys between barns.
Mr. Kernaghan's evidence was that he worked at factory jobs because of the money. He prepared three resumes after finishing high school. His first resume states that his objective was to secure employment in "any line of work." His second and third resumes state that his objective was to secure employment as a "general labourer."
In a questionnaire Mr. Kernaghan completed through a placement agency in 2003 and prior to the accident, he indicated that he was not returning to school. The notes of the placement agency dated January 30, 2003 indicate that Mr. Kernaghan hoped to attend post secondary education, but that this was a "couple years away."
Elizabeth Menard, a vocational evaluation specialist retained by AXA, testified. Prior to Ms. Menard conducting Mr. Kernaghan's vocational evaluation, AXA asked her: "With the skills (Mr. Kernaghan) has and his education and restrictions and limitations, what types of employment could (Mr. Kernaghan) be employed at now (i.e., following the accident)?"14 According to Ms. Menard, the position at Annex Publishing, the position at Wellmaster and turkey catching were jobs that were consistent with the education and training of a "grade 12 student." When re-examined, Ms. Menard: (a) agreed that she did not know whether the job at Annex Publishing required a grade 12 education; and (b) did not think that turkey catching required a grade 12 education.
Ms. Menard concluded that Mr. Kernaghan's "employment appears to have been in casual, seasonal, or unskilled short term jobs ... (and that) Mr. Kernaghan has yet to establish a stable work record."15 Ms. Menard's review of Mr. Kernaghan's education suggested "that educators recognized Mr. Kernaghan's ... artistic ability"16 and that "Mr. Kernaghan acquired a basic secondary school education with emphasis on art and computer/media studies, which suggests that he was on a trajectory related to art or computer art."17
Ms. Menard noted that Mr. Kernaghan worked as a clerk and co-manager at a video store from June to December 2001.18 She concluded that based upon Mr. Kernaghan's "education, training, experience, physical limitations19 (i.e., following the accident)20 and vocational testing," he could work as a video store clerk, gas bar cashier or automotive service advisor.21 When re-examined, however, Ms. Menard stated that a gas bar cashier does not require a grade 12 education.
Judy Ellenberger, an adjuster with AXA, also testified at the hearing. Ms. Ellenberger determined that because Mr. Kernaghan had not worked 26 out of the 52 weeks prior to the accident, he was entitled to non-earner benefits. She concluded that Mr. Kernaghan did not qualify for non-earner benefits at the increased rate of $320 per week 104 weeks after the accident because in the time between his graduation and the accident, Mr. Kernaghan was, in AXA's opinion, employed in jobs that were comparable to his education and training.
Ms. Ellenberger never thought that Mr. Kernaghan tried to deceive or mislead AXA about his employment status at the time of the accident. When asked whether turkey catching is reflective of Mr. Kernaghan's education and training, Ms. Ellenberger's evidence was that she was not qualified to answer that question. She later stated that she did not think one needed "a lot" of education to catch turkeys and that "possibly" what's needed is an "able bodied person" to catch turkeys. However, Ms. Ellenberger also did not agree that catching turkeys was not reflective of Mr. Kernaghan's education and training.
c) Evidence Regarding College Students:
Ms. Catherine Chambers, a graphic artist retained by AXA, testified regarding what type of students complete the graphic arts program at Fanshawe College. Ms. Chambers worked as a "partial load instructor" at Fanshawe College for two years, teaching courses in the graphic design area. Deciding which students were admitted into Fanshawe's graphic arts program was not one of Ms. Chambers' responsibilities. She has no education, training, or experience in student admissions. She taught whoever was admitted to her class. A student's high school grades were not relevant to Ms. Chambers because her assessment of students was based solely on how students performed in her class.
Ms. Chambers opined that based on Mr. Kernaghan's high school grades, his work at Fanshawe College would likely be below average. She concluded that Mr. Kernaghan had a "50/50 chance" of completing the graphic arts program at Fanshawe College.
IV. ANALYSIS:
e) Whether Mr. Kernaghan Completed His Education Within One Year of the Accident:
I find that the break in Mr. Kernaghan's education was sufficient to conclude that he completed his education because: (a) although it was his stated intent to go to college and study graphic arts/design after taking a year off following high school, by the time of the car accident, he had saved little; (b) he was not enrolled in college; (c) he had not applied to any colleges; and (d) the notes of the placement agency dated January 30, 2003 indicated that Mr. Kernaghan's hope to attend post secondary education, was a "couple years away." I agree with AXA's position, as set out in AXA's opening statement, that there was sufficient ambiguity in Mr. Kernaghan's plans so as to render any reliance on them speculative. Consequently, I find that Mr. Kernaghan completed his grade 12 education within one year of the car accident.
f) Whether Mr. Kernaghan's Employment Reflected His Education and Training:
The relevant time period for consideration of whether Mr. Kernaghan's jobs reflected his education and training is between his graduation from high school and before the accident.22 Subsection 12(1)3.ii. of the Schedule does not look to the period following the accident "to what might have been."23 The words "education and training" "should be interpreted so as to accurately and fairly"24 reflect Mr. Kernaghan's situation at the time of the accident.
The chart below summarizes the artistic courses Mr. Kernaghan took in high school. Mr. Kernaghan graduated from high school with 30 credits in various areas. As AXA submitted in its closing statement, eight out of the 30 courses Mr. Kernaghan took (as outlined in the chart below) related to art. Stated differently, 27% (i.e., over one quarter) of Mr. Kernaghan's education was in the area of art. The most courses Mr. Kernaghan took in any other one subject area was 13%.25
Grade Level
Course Title
Description
Mark
9
Visual Arts - Fine Arts
No description provided.
92
9
Art & Technology.
No description provided
86
10
Visual Arts - Fine Arts
Continued development of elements of art. In-depth principles of design emphasis on drawing, painting (print-making) and sculpture. Canadian art history.
76
11
Visual Arts - Fine Arts
Greater variety of media and techniques. Include acrylic, watercolour, lettering, in-depth drawing and sculpture methods. Art history, Canadian art. Engraving.
66
11
Communication Technology
A broad based technology program that covers the theory and practical aspects of video production, filming, editing, animation, and desktop publishing
66
11
Media Studies
No description provided.
56
12
Communication Technology
Application and expansion of theoretical knowledge, skills, acquired in previous communications classes, electronic theory, animation, autocad, 3D studio videtoaster, script writing, story board development, final edit.
64
12
Visual Arts - Fine Arts
No description provided.
80
I find that Mr. Kernaghan had a "basic secondary school education with an emphasis in art,"26 based on: (a) the eight art courses he took in high school, which is double any one other subject area; (b) the various projects he undertook (such as the sketch of the building in Tillsonburg, developing a coat-of-arms and designing topic pages for a cookbook) which provided him with additional training in art; and (c) various of his high school teachers'27 recognition of his artistic ability and encouragement to continue with his artistic education.
The test in s.12(1)3.ii. of the Schedule is clear. It does not consider an insured's motivation, therefore, the fact that Mr. Kernaghan only looked for factory jobs after graduating from high school, is not relevant to the issue in this case.
I place little weight on Ms. Menard's evidence for the following reasons: (a) her report, and much of her evidence, dealt with jobs Mr. Kernaghan could perform with his "restrictions and limitations"28 as a result of the accident. The test in s.12(1)3.ii. of the Schedule does not contemplate a consideration of an insured person's restrictions and limitations as a result of the accident; (b) She noted various jobs, such as a video store clerk, Mr. Kernaghan could do with a grade 12 education. However, he worked as a video store clerk prior to graduating from grade 12. This indicates that a grade 12 education is not necessary to work as a video store clerk; (c) another job Ms. Menard thought was reflective of a grade 12 education was a gas bar attendant.29 However, in her re-examination, she agreed that a grade 12 education was not required to work as a gas bar attendant.
Ms. Chambers' evidence was irrelevant to the issue I have to decide. However, for the sake of completeness, for the following reasons, I place little weight on her opinion: (a) she had no skills, training, or experience in college admission; (b) her experience at Fanshawe College was limited to teaching students and assessing them based on what they submitted to her in her classes and how they responded to what she taught them; and (c) she had no experience in assessing someone's grades, aptitudes or interests as they relate to a student's success in the graphic arts program at Fanshawe College.
I place little weight on Ms. Ellenberger's evidence for the following reasons: (a) the focus of her evidence was on Mr. Kernaghan's turkey catching on the day of the accident. She provided no evidence regarding whether Mr. Kernaghan's other jobs in the time between graduating and the accident were reflective of his education and training; (b) her opinion regarding whether turkey catching was reflective of Mr. Kernaghan's education and training was inconsistent. First she said she was not qualified to give an opinion on the issue that is the subject of this arbitration; then she said one didn't need a lot of education to catch turkeys and that possibly one only needs to be "able bodied"; still later she stated that she did not agree that catching turkeys was not reflective of Mr. Kernaghan's education and training.
Conclusion:
The question is not whether a person can do a job. The question is whether the job reflects the insured's education and training. The jobs that Mr. Kernaghan had between graduating from high school and the accident do not reflect his education and training simply because he performed them.30
Mr. Kernaghan's jobs at Annex Publishing and turkey catching did not require, based on his description of the job duties, that he speak English. Mr. Kernaghan's jobs at Annex Publishing, Cedarcrest and turkey catching only required an "able bodied person" to perform the job duties. Mr. Kernaghan's job at Wellmaster required that he read English.31 It was a physically demanding job which required an able bodied person. However, Mr. Kernaghan's education consisted of far more than English and Physical and Health Education courses. For the above reasons, I find that Mr. Kernaghan's education and training bore little reflection to the jobs he had between graduating from high school and the accident.
Interest:
Pursuant to s.17(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22,
(a) tribunal that makes an order for the payment of money shall set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated.
Subsection 46(2) of the Schedule provides that interest of 2 per cent per month compounded monthly is payable on overdue payments. An amount is overdue when the insurer fails to pay the benefit within the time required under Part X of the Schedule.
Pursuant to s.35(3) of the Schedule, the insurer shall pay a non-earner benefit within 10 business days after the insurer receives the application and completed disability certificate. Mr. Kernaghan, through his counsel, first requested non-earner benefits at the increased rate of $320 per week on August 17, 2005.32 AXA never requested a disability certificate. Furthermore, an application for a benefit "does not have to include all the supporting documentation for interest to run based on the date of the application."33
I find Mr. Kernaghan is entitled to interest of 2 per cent per month compounded monthly on the amount of $135 per week (i.e., the difference between $320 that is payable and the $185 per week that Mr. Kernaghan was paid) from August 28, 2005 onwards until the benefit is paid in accordance with s.46(2) of the Schedule.
EXPENSES:
Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.
May 17, 2007
Maggy Murray
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 98
FSCO A06-000287
BETWEEN:
MICHAEL KERNAGHAN
Applicant
and
AXA INSURANCE (CANADA)
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Kernaghan is entitled to receive a non-earner benefit of $320 per week pursuant to subsection 12(3) of the Schedule from May 31, 2005 onwards.
Mr. Kernaghan is entitled to interest of 2 per cent per month compounded monthly on the amount of $135 per week from August 28, 2005 until the benefit is paid in accordance with subsection 46(2) of the Schedule in respect of the non-earner benefit.
If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.
May 17, 2007
Maggy Murray
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Pursuant to s.12(1)1. of the Schedule (exhibit 5, Tab 1E)
- Pursuant to s.12(3) of the Schedule
- See AXA's letters dated July 2, 2003 and December 2, 2003 in exhibit 5, Tabs 1A and 1B respectively. However, AXA, by letter dated February 9, 2007 (less than two weeks before this hearing; at exhibit 9), advised Mr. Kernaghan that AXA erred in determining his entitlement under the Schedule and AXA, in its letter dated February 9, 2007 advised that it is now of the opinion that he should receive income replacement benefits rather than non-earner benefits. For the purpose of this hearing, I find that it is "far too late" [Hussaini and Halifax Insurance Co., QL at 4, para. 20 (FSCO P99-00046, December 17, 1999); Zehr and Canadian General Insurance Company, QL at 2, para. 6 (FSCO P99-00010, June 11, 1999)] for AXA to defend this claim on the basis that Mr. Kernaghan is entitled to income replacement benefits rather than non-earner benefits. See, for example: (a) AXA's letter dated August 12, 2005 (at exhibit 5, Tab 1E) which states that Mr. Kernaghan qualified for a non-earner benefit under s. 12(1)1. of the Schedule; and (b) AXA's letter dated September 28, 2005 (at exhibit 8, p.2) regarding a vocational assessment wherein AXA states: "At the time of the accident (Mr. Kernaghan) was unemployed ... (and) had not worked 26 weeks out of the proceeding 52-week period and was unable to qualify under the weekly income replacement benefit. He was eligible for the non-earner benefit ..."
- Schedule, ss.12(1)3.ii. and (3)
- Schedule, s.12(1)3.ii.
- Exhibit 1, para.'s 3 and 5
- Agreed Statement of Facts, exhibit 1, para. 6
- Agreed Statement of Facts, exhibit 1, para. 7
- Agreed Statement of Facts, exhibit 1, para. 8
- Exhibit 2
- Exhibit 3
- Exhibit 1
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at ii
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at v
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at iv
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at v
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at iv
- Emphasis added
- See also Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at v-vi which states that when identifying jobs for Mr. Kernaghan, Ms. Menard was mindful that he effectively has one arm
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at vii
- Schedule, s.12(1)3.ii.
- MacPherson and Pilot Insurance Company at 5 (OIC A-006195, June 30, 1995)
- MacPherson and Pilot Insurance Company at 6 (OIC A-006195, June 30, 1995)
- Refer to the chart on pp. 5-7. For example, Mr. Kernaghan took four English courses throughout grades 9-12. He took four Math courses throughout grades 9-12. He took four Physical and Health Education courses throughout grades 9-12.
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at v
- Mrs. Lamont, Mr. Rabb and Ms. Gardner
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at ii
- Exhibit 5, Tab 2A, Report of Liz Menard dated December 20, 2005 at vii
- Mills and Canadian General Insurance Co., QL at 9 (OIC A-005599, July 6, 1995; varied on appeal: OIC P-005599, October 8, 1996)
- i.e., Mr. Kernaghan had to read specifications on blue prints as outlined in para. 14 of the Agreed Statement of Facts, exhibit 1
- Exhibit 5, Tab 1F. Although there is a reference in exhibit 5, Tab 1E to an e-mail by Mr. Kernaghan=s counsel dated July 18, 2005, that e-mail is not before me and I am not aware of its exact contents. Consequently, I can only rely upon the date of August 17, 2005 as the date on which the non-earner benefit at the rate of $320 per week was requested.
- Totic and Primmum Insurance Co., QL at 6, para. 30 (FSCO P03-00033, July 26, 2004 ). See also Mark and Dominion of Canada (FSCO A96-000341, January 27, 1999) cited in Totic, QL at 6, para. 32; Sebastian and Canadian Surety Company, (FSC0 P96, July 28, 1998) cited in Totic, QL at 5, para. 24, Note 6 and QL at 6, para. 31; and Longworth and Economical Mutual Insurance Co., QL at 17, para. 79 (FSCO A05-001539, May 18, 2006)