Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 9
FSCO A05-001817
BETWEEN:
PATIENCE SARPONG
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: David Muir
Heard: October 21, 22, 23, 24, 25, 29 and 30 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Murray Tkatch for Ms. Sarpong
Andrew Grayson for TD Home and Auto Insurance Company
Issues:
The Applicant, Patience Sarpong, claims to have been injured in a motor vehicle accident on June 2, 2004. She applied for statutory accident benefits from TD Home and Auto Insurance Company (“TD Home”), payable under the Schedule.1 TD Home has paid no benefits to Ms. Sarpong. The parties were unable to resolve their disputes through mediation, and Ms. Sarpong applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
This matter is related to two other arbitrations brought by Ms. Victoria Owusu (FSCO file A06-001294) and Mr. Bismark Asamane (FSCO file A06-001418). The three were in the car together at the time of the alleged accident. At the pre-hearing discussion a generic Order combining the matters was made pursuant to Rule 30 of the Dispute Resolution Practice Code (Fourth Edition — Updated October 2003). The Order did not specify how the matters were to be combined, pursuant to the Rule. After some discussion with the parties, it was agreed that the matters2 would be heard at the same time by the writer with the evidence in one applying to the other to the extent that it was relevant to the issues in dispute in the other arbitration.
At the heart of the dispute between the parties is the allegation by TD Home that the claims made by the Applicants are in one way or another fraudulent. It was also TD Home’s position that the Applicants have made material representations and are consequently disentitled to the benefits in dispute. In particular it is alleged that the accident giving rise to these claims did not occur, at least not as described, and that neither applicant was employed by their respective pre-accident employer. In the alternative TD Home submits that if the allegations of fraud and material misrepresentation are not made out, there remain so many unanswered questions surrounding the elements of entitlement that the Applicants are required to establish, that their claims ought to be dismissed for lack of credible evidence supporting them.
The allegations made by TD Home, at their highest, implicate the Applicants in a conspiracy or ring to defraud various insurers, including TD Home by the making of false claims to benefits. The evidence in support of these allegations is almost entirely circumstantial, and much of it is hearsay. As I indicated to counsel during the course of the hearings, while there were evident credibility issues respecting the Applicants’ claims, it seemed to me that it would be difficult for TD Home to prove its ultimate allegations based on the type of evidence it was intending to call. My view of the difficulties TD Home had in ultimately proving its theory remain.
In general terms, TD Home’s theory of these cases is that there exists a ring of individuals who provide “front” employers and false employment documentation to persons who wish to make statutory accident benefits claims. The evidence of this conspiracy centers on the relationships between a number of individual accident benefits claimants. At the centre of the conspiracy is the putative employer of Ms. Sarpong – Worthys Unisex Hair Salon (“Worthys”). Over a period of 15 months there were, including the claims of Ms. Sarpong and Mr. Asamane, 5 accident benefit claims made by individuals who claimed to work at Worthys. In TD Home’s view the unlikelihood that all of these claimants would find themselves connected through this one small employer strongly suggests an organized attempt to defraud. TD Home led evidence of the statistical likelihood of this number of persons out of a small population being involved in an accident over the relevant time period. Although there are reasons to question the definitiveness of the statistical evidence, I accept that central point that the chances of these claims all being legitimate is probably remote at best.
As regards Ms. Sarpong’s claim, in addition to the weakness of the evidence supporting her claim, TD Home alleges that Ms. Sarpong did not work at Worthys and that she conspired with Gifty B., the proprietor, to create a false record of employment to support an income replacement benefit claim.
Ms. Sarpong denies the allegations of fraud and misrepresentation. Moreover she has claimed a special award on the basis that TD Home decided, from the beginning, to deny her claim based on irrelevant considerations and that it refused to change that position, ignoring evidence supporting her claims as it became available.
The great preponderance of evidence related to the conspiracy theory proffered by TD Home. Ms. Sarpong offered only limited evidence about her pre-accident work and even less about the nature and extent of her inability to perform those duties post-accident. TD Home’s evidence was that because these Applicants were the second claimants in a four month period - there being another claim on the insurance policy in February 2004 - their claims were red-flagged and although this was not expressly stated, her claim along with those of the related Applicants appear to have been subject to greater scrutiny. Whether this is accurate or not, TD Home initially denied Ms. Sarpong’s claims because of a lack of documentation supporting employment. As TD Home’s investigations continued, further questions arose leading ultimately to the conclusion that her claims were fraudulent. Having taken this view of the claim, TD Home conducted no assessments of Ms. Sarpong’s ability to perform the essential tasks of her pre-accident work.
The issues in this hearing are formally set out as follows:
Is Patience Sarpong entitled to be paid an income replacement benefit from June 2, 2004 to October 1, 2005?
Is TD Home required to pay a special award, pursuant to section 282(10) of the Insurance Act, because it unreasonably withheld or delayed payment of a benefit?
Is either party entitled to be paid their expenses of the arbitration?
Result:
Patience Sarpong is not entitled to be paid an income replacement benefit from June 2, 2004 to October 1, 2005.
TD Home is not required to pay a special award, pursuant to section 282(10) of the Insurance Act, because it unreasonably withheld or delayed payment of a benefit.
The issue of expenses is left to the parties to resolve.
Twi interpreters were present throughout the evidence of Ms. Owusu and Ms. Sarpong. I was satisfied that Ms. Sarpong required the use of an interpreter. At the conclusion of the evidence, Counsel for the Applicant agreed that there appeared to have been no issues with the interpretation provided.
A court reporter recorded all of the evidence, but for part of the examination-in-chief of Ms. Owusu. A transcript of the evidence was not produced prior to the release of these reasons. Accordingly, this decision is based on the record of proceedings placed before me at the hearing.
As indicated, the allegations of fraud and misrepresentation are based in large part on materials filed by other insured persons in other statutory accident benefits claims made of TD Home and other Insurers. Portions of these individuals’ statutory accident benefits files were introduced in evidence.
There was no request for an Order to anonymise these decisions. However, the several third parties whose claims became central features of TD Home’s case were not before me to make that request. To my mind it would be a gross violation of their privacy to be readily identifiable in these reasons. On the other hand their identities, except to the extent that they are related in some way to the Applicants, are irrelevant to my reasons. Accordingly, I have decided that they will be referred to by their initials and not their full names. Other identifiers will also not be used except to the extent that they are essential to a proper understanding of these reasons.
Additionally, I expressed concern with much of the material contained in these third parties’ files that was at least formally introduced into evidence as part of the document briefs filed by TD Home. It was agreed that because TD Home was relying primarily on the fact that these claims were made, and their interconnectedness in terms of time and the individuals involved, much of what was introduced was irrelevant. Accordingly, it was agreed that only those documents specifically adverted to in the hearing would be considered part of the evidence before me.
EVIDENCE AND ANALYSIS:
The primary focus of the hearing and the overwhelming preponderance of the evidence and submissions related to the alleged fraud or ring.
Neither party made submissions on the quality of evidence required to prove, in a civil proceeding, what amounts to criminal conduct. Much has been written about this in the context of labour arbitrations dealing with disciplinary matters, and elsewhere where serious misconduct is alleged to have occurred.
I found the following passage from Pratt and Whitney Canada Inc. and Ministry of Labour and John Machado, [1992] OESAD No. 246, useful in considering the evidence of the parties.
There can be no doubt that the allegations against the Claimant are very serious. A.P.'s allegation is tantamount to sexual assault. The consequences of the allegations have been no less serious: the Claimant was not only fired from a responsible position, but he has been unable to obtain work since. The appropriate standard is something higher than a mere balance of probabilities; the Employer can only discharge its onus with evidence which is, to use the language most frequently associated with 'wilful misconduct' cases, both clear and cogent. This is, of course, something less than the criminal standard. The Supreme Court of Canada in Hanes v. Wawanesa Mutual Insurance Co. (1963), 1963 CanLII 1 (SCC), 36 D.L.R. (2d) 718 quoted with approval the following passage from the judgement of Denning, L.J, in Bater v. Bater [1950], 2 All E.R. 458 at page 733:
The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof be clear. So also in civil cases. The case may be proved by a preponderance of probability but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of an criminal nature, but it still does require a degree of probability which is commensurate with the occasion.
The following comments of the Divisional Court in Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 CanLII 1072 (ON HCJ), 76 D.L.R. (3d) 38 at page 61 are also helpful:
The important thing to remember is that in civil cases there is no precise formula as to the standard of proof required to establish a fact.
In all cases, before reaching a conclusion of fact, the tribunal must be reasonably satisfied that the fact occurred, and whether the tribunal is so satisfied will depend on the totality of the circumstances including the nature and consequences of the fact or facts to be proved, the seriousness of an allegation made, and the gravity of the consequences that will flow from a particular finding.
Despite the voluminous evidence lead by TD Home in support of its allegation of a ring, I have concluded that Ms. Sarpong is not entitled to an income replacement benefit not because I have found that she was a participant in the conspiracy, but primarily because of the profound credibility problems arising from her own evidence. To put it plainly, it is difficult because of the inconsistencies, gaps and admitted untruths in her evidence to give it much credit. It is against this backdrop that I have considered the extremely limited evidence in support of her claim to being disabled from work for 16 months as a result of impairments sustained in a motor vehicle accident. Despite the fact that TD Home did not vigorously challenge her assertion that she was unable to work for that period, at the end of the day there is little or no credible evidence of an inability to perform her pre-accident employment duties as a result of injuries sustained in the accident nor any credible evidence respecting the duration of any such impairments.
Ms. Sarpong testified that she was involved in an automobile accident at 10:30 p.m. on June 2, 2004. She testified that she was thrown backwards and forwards in the typical acceleration/de-acceleration pattern of many automobile collisions. Ms. Sarpong was the front seated passenger in a vehicle driven by F.A. In the rear passenger seats were Victoria Owusu and Bismark Asamane, claimants in the related arbitrations. They were, they claimed, returning from a visitation for an acquaintance.
As regards TD Home’s position that there was no accident at all, there is very little evidence that would support the conclusion that there was not and some evidence that there was. In particular, the driver of the second vehicle, K.S. reported the accident and, other than apparently living within two miles of one of the occupants of F.A.’s vehicle, was not connected to any of the passengers in any way. TD Home commissioned an accident reconstructionist’s assessment but the assessor only concluded that the accident might not have occurred as described, not that it did not occur at all. Although it does not much matter given my findings below on other points, it is more likely than not that there was an accident as defined involving the vehicle in which Ms. Owusu claims to have been a passenger and that driven by K.S.
Ms. Sarpong claims to have begun experiencing pain and attended at her family doctor, Dr. Lo, on June 3, 2004. Dr. Lo has notes indicating that there was such a visit, although this note is out of chronological order. If it is accurate, the Med-Rehab DAC notes that Ms. Sarpong attended at Dr. Lo’s three days after the accident.
Ms. Sarpong was diagnosed by Dr. Lo and others who saw her as having suffered uncomplicated soft tissue injures to her neck, shoulder and lower back and both her knees. She also reported a headache at the time. Dr. Lo’s notes indicate that he referred her to physiotherapy and prescribed an oral analgesic.
Ms. Sarpong claims to have been employed by Worthys at the time of the accident, although she appeared to be unfamiliar with that name and knew it as “Gifty’s”, named after the owner of the business “Gifty B.”. Her lack of familiarity with the name “Worthys” may be a consequence of the fact that she neither reads nor writes English. Ms. Sarpong claims to have been employed at Worthys from early February 2004 to the day of the accident. She claims that she was employed as a hairdresser. Her duties were primarily the braiding of hair. This task would require her to stand over a seated client, braiding their hair and using her hands. This could take from minutes to several hours. Her hours of work were six days week and either 9 a.m. to 7 p.m. or in another version 10 a.m. to 7 p.m.
Ms. Sarpong claimed to be unable to perform the tasks of this position as a result of injuries sustained in the accident, but did not say why. Nor did she say with any specificity, beyond the assertion that she did not work for 18 months, how long she was unable to perform the essential tasks of her pre-accident work.
TD Home led no direct evidence that Patience Sarpong was a knowing participant in a conspiracy or ring to make fraudulent claims. TD Home did not call her putative employer or anyone else associated with the business. I heard no direct evidence from any of the other alleged members of the ring. Instead TD Home lead considerable circumstantial evidence through various investigators, largely in the form of other claims made by individuals associated in one way or the other with Worthys or Ms. Sarpong. TD Home relies on a limited number of facts related to these claims, their timing and the interconnections between the individuals involved to support its theory. The sheer volume of circumstantial evidence and the common sense unlikeliness that all of these claims could have been legitimate strongly suggests something untoward. However it does not necessarily follow from these collateral facts that Ms. Sarpong was not involved in a car accident on June 2, 2004 and suffered injuries which prevented her from working at the hair salon, which we know was a functioning business.
One example will serve to illustrate the problem. A certain P.A. (one of the 3rd parties) claimed to have been injured in an accident in October 2004 and sought income replacement benefits from another insurer because he claimed he could not return to his duties at Worthys. In his claim for benefits, P.A. claimed to have been employed at Worthys from early February 2004. If that is accurate, he was working there with Ms. Sarpong until her accident in June. However, an investigation by the other insurer revealed that P.A. was working at a dry cleaner while claiming to be disabled from work at Worthys. A representative of the dry cleaner is reported as having said that P.A. had been working there continuously since before his alleged employment at Worthys. If that information is accurate, P.A. could not have been working at Worthys when he claimed he was. Ms. Sarpong claimed that this individual’s name meant nothing to her.
Does it necessarily follow from these facts that Ms. Sarpong was not an employee of Worthys from February to June? Not at all. Leaving aside the hearsay difficulties with the evidence about the period of P.A.’s employment with the dry cleaner, an obvious inference one might draw from these facts is that P.A.’s claim to have worked at Worthys from February to October was not true. If that is so then it would likely follow that Gifty B. or someone else associated with Worthys was assisting him in his false claim by providing employment documentation. But there is no evidence connecting Ms. Sarpong to P.A. and it does not necessarily follow from the fact that P.A. likely lied about working at Worthys and even that Gifty B. conspired with him, that Ms. Sarpong did not work at Worthys as she claims.
Ms. Sarpong denied the suggestion of fraud when put to her and submitted to the contrary that there was substantial evidence to support her claim that she was employed by Worthys.
There are facts which support Ms. Sarpong’s claim to have been employed by Worthys. To begin with, there is no question that the business does or did exist. It is accepted that it had customers and employees. TD Home’s investigation confirmed that. Ms. Sarpong’s employer also provided cancelled cheques for some part of the period of her alleged employment. Those cheques were cashed and deposited in a TD bank account which must have belonged to Ms. Sarpong.
TD Home takes considerable issue with these cheques. In TD Home’s view the absence of cheques for the last four weeks prior to the accident is highly suspicious. In part, this suspicion may flow from TD Home’s apparent belief that individuals who are paid in cash do not – or cannot - it was not entirely clear, report that income and accordingly can never be entitled to an income replacement benefit.
TD Home also took the position that the pattern of payment evidenced by the cheques was inconsistent with what she told them in her September 2004 statement. This statement was taken in Ms. Sarpong’s representative’s office with the assistance of a Twi interpreter. She was afforded an opportunity to re-read the statement and make changes as she chose. In the statement, Ms. Sarpong had said she said she was paid “half by cash, half by cheque”. TD Home officials were of the view that this meant in each week she received a cheque for half of her wage with the rest being paid to her in cash – not an unusual practice in a cash business, but not what the cashed cheques suggested.
When Ms. Sarpong was asked about this she said she could not remember in detail but was led to say that she was paid by cheque every second week or so, or one week by cheque then the next week in cash. Ms. Sarpong’s recollection in this regard is flawed in that it appears that she was not paid by cheque in the first weeks after her start date, followed by a number of weeks where she was provided a cheque with one two-week gap, followed by several weeks leading up to the accident where she would have been paid in cash, if paid at all. There also appears to have been periods were her pay was held back for a week. That said, Ms. Sarpong’s version of events is not inconsistent with her statement and not beyond belief for a small cash business.
TD Home also challenged Ms. Sarpong about the erratic manner in which these cheques were issued to her. There are significant issues surrounding these cancelled cheques, whether considered on their own or when compared to cheques purportedly issued to P.A.3
For example, cheque #180 payable to P.A. dated March 13, 2004, after cheques #187; 188 and 189 were provided to, and negotiated by, Ms. Sarpong. Cheque #196, payable to P.A., dated March 6 was dated before Ms. Sarpong’s cheque #190 which was dated March 13. One of the cheques payable to Ms. Sarpong, #189, was deposited in her account 1 week after it was dated at the same time as cheque #190. Ms. Sarpong had no explanation for these anomalies and as with much of her evidence related to when and how she was paid, Ms. Sarpong said that these were matters for her employer and she did not know.
Despite this, the evidentiary value of the cheques is not insignificant. Payment of wages is normally pretty good evidence of employment. While the pattern of their issuance is peculiar for which a more credible explanation than “I don’t know” might have been offered, this fact alone does not necessarily require the conclusion urged by TD Home at least not as it relates to Ms. Sarpong. I also accept to some degree Ms. Sarpong’s submission that if these cheques were created as part of a scheme to de-fraud TD Home then it was badly set up in that there are none for the four week period prior to the accident. To put it another way, if one was going to create documentation in support of a fraudulent income replacement claim there is some sense to the submission that one would likely be most careful to document the final four weeks – something Gifty B. and Ms. Sarpong clearly did not accomplish here.
TD Home also alleges that while cheques were evidently going in to her account, Ms. Sarpong would subsequently withdraw cash in the amount of the cashed cheques and return it to her putative employer. This allegation was put to Ms. Sarpong and denied. TD Home relied upon what it suggested was a pattern of withdrawals from Ms. Sarpong’s account which matched the deposits from Worthys. I have considered TD Home’s position on this issue and have concluded that the bank record is simply too limited and incomplete to support TD Home’s theory. I note for example that while there are withdrawals that more or less match deposits during the time she was allegedly working at Worthys, there is also one similar withdrawal prior to that time.
The other facts which support Ms. Sarpong’s claim to have been employed flow from the income tax records provided by Revenue Canada. Unlike the records provided by Ms. Owusu, an applicant in a related matter, Ms. Sarpong’s tend to support her employment claims. Ms. Sarpong was able to produce a T4 slip from Worthys. The income tax assessment of the Canada Revenue Agency reflects the amounts of income and various statutory deductions Ms. Sarpong reported in the T4, plus a small additional amount of income that she received from employment in early 2004. This amount of $970 of income, although not reported by Ms. Sarpong, was included in her income by the Canada Revenue Agency.
TD Home made much of the fact that Ms. Sarpong filed her income tax return in late April 2005, likely after mediation was commenced. To my mind that is neither here or there. Even if filed to support an income replacement benefit, this fact alone does not require a finding that the claim to employment was fraudulent. The legislation now requires that income be reported in order to be included in the calculation of the benefit, and indeed the legislation contemplates applicants rewriting their income history by subsequent reporting of income. I note as well that although later than the earliest moment that her tax return might have been filed, it does not immediately leap to mind that the return must be fraudulent. I also note that Ms. Sarpong’s return for the prior year was filed in early April 2004.
At the end of the day there is no direct evidence contradicting Ms. Sarpong’s claim to have worked at Worthys. As indicated earlier the business did exist, it did have customers and apparently employees. Ms. Sarpong might have been one of them. Her evidence as regards her employment, her hours of work and the nature of the workplace was vague and somewhat contradictory, but capable of belief.
I have carefully considered all of the evidence offered by TD Home. I am persuaded that it is possible that Ms. Sarpong’s claim is entirely fraudulent, however mindful of the approach to the nature and quality of evidence required when considering these kinds of allegations I am not persuaded that TD Home has established the elements of its allegation of her participation in a ring, on a balance of probabilities. I have found on the contrary that the resolution of this dispute turns not on whether TD Home has proved that she was a participant in a ring, but rather on whether having considered all of the evidence Ms. Sarpong has led, whether there is sufficient credible evidence that she was substantially unable to perform the essential tasks of her pre-accident employment for any period of time. Having considered her evidence as a whole, I have concluded that she has not proved entitlement to the benefit claimed.
Ms. Sarpong is clearly capable of dissembling. Her evidence is rife with contradictions, gaps, inaccuracies and latterly admitted untruths. For example, during the entire period of her alleged employment at Worthys until the accident and then after until September 24, 2004, Ms. Sarpong was discovered by TD Home to be claiming to be providing housekeeping to an E.K., another and earlier accident benefits claimant, whose claim was relied upon by TD Home to support the conspiracy theory.
In obvious contrast to what the E.K. file later revealed, Ms. Sarpong told TD Home, in her September statement, that she was unable to perform her housekeeping tasks and gave a detailed description of what she had done prior to the accident, and what she needed help with post- accident. She further advised the Insurer that she had hired the daughter of a friend, named Agnes, to do the work for $10.00 per hour. All of this was a fabrication.
In anticipation of this issue arising in cross-examination, Ms. Sarpong was asked in her examination-in-chief about her housekeeping needs after the accident. She answered that she had been unable to do her own housekeeping for only one month post-accident and that her daughter had helped her during that time. When asked about the apparent contradiction between her September statement that she could do not do her housekeeping at least until the time of her statement and her evidence at the hearing, she offered the curious response that her daughter was not yet 18 and could not sign any documents, so Ms. Sarpong used her name – an apparent reference to Ms. Sarpong’s signature on a series of invoices in E.K.’s accident benefits file. These documents are a daily record of two hours of housekeeping allegedly performed for E.K. by Ms. Sarpong for $10 per hour. Ms. Sarpong’s testimony was out of place at the time as the housekeeping invoices had not yet been referred to in the evidence.
Ms. Sarpong was then asked directly if she had helped someone with their housekeeping prior to the accident and she responded that she had. She was then asked whether, after the accident, she or her daughter had assisted this as yet unidentified person. Ms. Sarpong stated that “after” she was able to help “her” then because she could do everything. It is not clear whether “after” meant after the accident or at the end of the month of her re-stated period of disability. In any event, I note that contrary to this evidence Ms. Sarpong appears to have reported to the Med-Rehab DAC in December 2004 that she had a housekeeper to help her even then.
In cross-examination when confronted with the fact that she had claimed to be providing housekeeping services for E.K. two hours each day, including the day of the accident and thereafter continuously for several weeks, while at the same time telling TD Home she was unable to do her own housekeeping, Ms. Sarpong at first agreed that she had been providing housekeeping services to E.K. from March 1 to September 24, 2004.
Ms. Sarpong was asked whether she had worked at Worthys on June 2. She at first said she did not, or could not remember but then agreed that she had worked her regular day at Worthys i.e. to 7 p.m. and then attended the visitation. She was then asked to confirm that she had signed the housekeeping invoice on June 2 and then again on June 3 the day she claims to have attended Dr. Lo, which she did. She was then asked if she did two hours of housework on those days. She responded that she had.
Ms. Sarpong was asked again about whether the incongruity of her signing invoices indicating that she was paid for two hours of housekeeping on these days, reaffirmed her evidence that although she signed for it, she was not paid for any of this work. Ms. Sarpong then stated clearly, for the first time, that her daughter did some of the work - the implication being that perhaps her daughter had taken the work that day although Ms. Sarpong did not actually say that. It was then suggested to Ms. Sarpong that prior to the accident she had done the work. Ms. Sarpong initially agreed that she had, but then testified that her daughter was “there all of the time” and did the bulk of it. What she meant by her daughter being “there all of the time” was not clear, but when asked if her daughter lived with E.K., this was denied. In any event, the evidence that her daughter did the bulk of the work is in contrast with the fact that Ms. Sarpong signed, on a daily basis, the housekeeping expense invoice indicating duties performed and payments received.
When it was suggested to her that her reference in the September statement to a daughter of a friend named Agnes whom she hired to help with her housekeeping was her daughter Agnes, she admitted it was, but said that it was a translation error. When it was suggested to her that contrary to the contents of the statement, she had never promised to pay Agnes for the housekeeping, she responded that her lawyer4 had advised her to say that she needed housekeeping.
Other inconsistencies or gaps include her hours of work which changed from 9 to 7 in the September statement to 10 to 7 in her evidence in chief. As well, despite working at Worthys 6 days a week for almost 4 months she could not remember the names of any of her regular customers nor of any other employee of the business other than Mr. Asamane. Ms. Sarpong also said in her statement that the ride home from the visitation was arranged by the widow. In her testimony before me she said that it was arranged by Mr. Asamane. Her explanation for this misstatement was not convincing.
Another area of confusion was in getting clear where Ms. Sarpong lived, with whom and when. In her September statement she said that she had lived for 3 months with Y. S. When asked who this person was, she said she could not remember and blamed the confusion on the interpreter saying something she did not understand. However, I note that the name is repeated later in the September statement as a roommate with whom she shared the housekeeping. Then when asked if she had said when giving the September statement that she lived with E.K., she said she could not remember whether she had said that or not. Then much later in her evidence, she said that Y.S. was also known as Rita. I note that in her September statement she stated that prior to living with Y.S., she had lived with a friend named Rita. In her evidence at the hearing she claimed that she moved in with E.K. at some point after the accident, but she could not remember when. E.K. had an 8 year-old boy whose English name Ms. Sarpong could not initially recall. I note that in the September statement, Y.S. had an 8 year-old son living with them.
In summary, I find that the statement Ms. Sarpong gave to TD Home in September 2004 is rife with untruths. Her explanations for why she made these various misstatements were not particularly convincing. To her credit she did finally admit at the hearing that some of the claims made in the statement were not true. However, I find that the tendency to misstate did not end with the September statement and she was caught out on several occasions in her vive voce evidence. For example because she had confirmed that she signed the E.K. housekeeping invoice each and every day she stated, when asked, that she had signed the documents on both June 2 and June 3. When confronted with the probability that she could not have done it on June 2 because she was at work all day, then on to the visitation followed by the 10:30 p.m. accident and consequent visit to the collision reporting centre, she inferred that her daughter did the work that day. Aside from whether her daughter did the work that day or not, Ms. Sarpong testified that she signed the invoice that day. I find that she could not have done so, unless she lived with E. K. at the time, which is vigorously denied by Ms. Sarpong.
It is against this backdrop of untruthfulness that I have considered Ms. Sarpong’s bald assertion that she was unable to work for 18 months. The claim is borderline implausible on its face given the nature of her injuries, and lack of testimony from Ms. Sarpong in support of her claim of inability to perform the essential tasks of her employment.
Although I am not of the view that corroborating medical evidence is always required to support a claim of disability in a case like this, it takes on more significance. The fact is that there is very little medical evidence to support her claims. The disability certificate provided by Dr. Lo is not particularly helpful as it is dated the day after the accident. I am not prepared to extrapolate from that to any particular period of disability. The strength of Dr. Lo’s certification of disability is not enhanced by his subsequent disability certificate dated August 2006 wherein he states that Ms. Sarpong was still disabled as a result of injuries sustained in the accident and that she had made an unsuccessful return to work between December 2005 and February 2006. According to Ms. Sarpong, she returned to work in early 2006 and only quit that work when she became pregnant.
Ms. Sarpong relied upon the Med-Rehab DAC. This report is not particularly helpful. In addition to being about the reasonableness and necessity of a treatment plan from October 2004 and not about her level of disability, the DAC concluded that there was significant indication of a non-organic basis for Ms. Sarpong’s complaints. In the result while finding that she may have suffered uncomplicated soft tissues injuries in the accident, the treatment plan was not reasonable or necessary at the time that it was consumed.
Ms. Sarpong also relied upon the medico-legal reports of Dr. Handlesman. These are written long after the fact, and contain a different version of Ms. Sarpong’s post- accident work history than was related at the hearing. They do not help her case.
Even if I were to accept that Ms. Sarpong was disabled from her work on June 3, 2004, in accordance with Dr. Lo’s disability certificate, when would that disability end? Ms. Sarpong says 16 months later but does not indicate what it was that prevented her from returning to work for that period of time. Would her claim properly end in September 2004 when Ms. Sarpong claimed in her statement to be 40 per cent recovered, or in early July when she told me she was able to do all of her housework and E.K.’s as well.
Whether or not Ms. Sarpong actually worked at Worthys as she claims, I find after considering all of the evidence that there is no credible basis for a finding of any significant degree of disability for any appreciable length of time following the accident on June 2. In short, I am unable to find any basis for an award of an income replacement benefit.
There being no finding of entitlement to a benefit there can be no special award in this case, despite the questions that Ms. Sarpong legitimately raised about the approach TD Home took in adjusting her claims.
EXPENSES:
The parties shall resolve the issue of expenses themselves. If they are unable to do so they may request an appointment within 30 days of the date of these reasons, in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (Fourth Edition — Updated October 2003).
January 17, 2008
David Muir Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2008 ONFSCDRS 9
FSCO A05-001817
BETWEEN:
PATIENCE SARPONG
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The application for arbitration is dismissed.
January 17, 2008
David Muir Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- The third matter, FSCO file A06-001418, was withdrawn on terms at the outset of the hearing.
- The cheques are drawn against the same bank account of Worthys Unisex Hair Salon.
- This reference is to Ms. Sarpong’s initial representative and not counsel at the arbitration.