Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 61

FSCO A08-001825

BETWEEN:

WILLIAM C. EMBURGH

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

Before: William Renahan

Heard: February 22, 2010 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Emburgh represented himself Philippa Samworth for Co-operators General Insurance Company

Issues:

The Applicant, William C. Emburgh, was injured in motor vehicle accidents on October 24, 2000 and May 10, 2002. He applied for and received some statutory accident benefits from Co‑operators General Insurance Company, payable under the Schedule.¹ Co-operators refused to pay weekly non-earner benefits. The parties were unable to resolve their disputes through mediation and Mr. Emburgh 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. Emburgh entitled to receive non-earner benefits for any period after April 24, 2001 pursuant to section 12 of the Schedule?
Is either party entitled to expenses of the arbitration, and if so, in what amount?

Result:

Mr. Emburgh is not entitled to receive non-earner benefits. The Applications for Arbitration are dismissed.
Mr. Emburgh shall pay Co-operators’ expenses of the arbitration in the amount of $2,000.

Preliminary issues:

Adjournment:

Mr. Emburgh asked for an adjournment of the hearing to retain counsel. He said that he has been in constant touch with law firms for the last ten years and he just needed more time. I am not satisfied that Mr. Emburgh would retain counsel if I adjourned the hearing. Accordingly, I declined the request for an adjournment.

Limitation period:

Co-operators argued that I should dismiss both Applications for Arbitration because they were commenced more than two years after the limitation period specified in section 281.1 of the Insurance Act.

Section 281.1 provides as follows:

281.1 (1) A mediation proceeding or evaluation under section 280 or 280.1 or a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.

Exception

(2) Despite subsection (1), a proceeding or arbitration under clause 281 (1) (a) or (b) may be commenced,

(a) if there is an evaluation under section 280.1, within 30 days after the person performing the evaluation reports to the parties under clause 280.1 (4) (b);

(b) if mediation fails but there is no evaluation under section 280.1, within 90 days after the mediator reports to the parties under subsection 280 (8).

In Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129 (S.C.C.), the Supreme Court described the insurer’s obligation to claimants when it refuses to pay benefits. Among other things, the insurer is obliged to inform the claimant of the dispute resolution process in a clear, straightforward manner, directed towards an unsophisticated person in layman’s language.

On November 28, 2000, Co-operators mailed Mr. Emburgh an “Explanation of Benefits” form which indicated that he was not eligible for the non-earner benefits he claimed because he did not suffer a complete inability to carry on normal life activities. On April 24, 2002, Co-operators mailed Mr. Emburgh another “Explanation of Benefits” form which repeated the same information. Co-operators included with that form another form setting out the procedure for resolving disputes and the two-year limitation period for commencing his arbitration or lawsuit.

Mr. Emburgh filed his Application for Arbitration with the Financial Services Commission with respect to this accident on August 28, 2008.

On June 5, 2002, Co-operators advised Mr. Emburgh of its refusal to pay non-earner benefits with respect to the accident of May 10, 2002 in similar language and with the same advice with respect to his right to dispute its decision.

Mr. Emburgh filed a second Application for Arbitration with the Financial Services Commission with respect to his claim for non-earner benefits arising out of the May 10, 2002 accident on August 28, 2008.

Although Mr. Emburgh did not raise the adequacy of the refusal, I find that Co-operators complied with its obligation to inform Mr. Emburgh of his right to dispute its refusal and that both Applications for Arbitration were filed beyond the two-year limitation period and are out of time. The Applications for Arbitration are therefore dismissed.

Since the parties presented evidence on the merits of the claim for non-earner benefits, I will deal with it, although it is not strictly necessary since I have determined that both Applications for Arbitration are out of time.

EVIDENCE AND ANALYSIS:

The accidents and injuries:

Mr. Emburgh provided little testimony about the accidents. His family doctor, Dr. R. Kemp, recorded the first accident as a rear-end collision. The second accident is recorded as a roll-over in which Mr. Emburgh’s vehicle flipped once and landed on its wheels. The consultation report on his admission to the hospital reported that Mr. Emburgh was confused at the scene of the accident with a Glasgow Coma Scale reading of 13. On arrival at the hospital his GCS reading was normal at 15. X-rays at the hospital, including x-rays of the clavicle, showed no fractures. However, a CT scan ordered by Dr. Kemp five months after the accident, revealed a left clavicular fracture with left sternoclavicular dislocation. Mr. Emburgh was discharged from the hospital after six days. An orthopaedic surgeon reported to Co-operators that shoulder injuries like Mr. Emburgh’s would usually resolve in the majority of patients without surgical intervention and that it was unlikely to require medical attention in the future. His opinion did not alter after he saw the CT scan.

Mr. Emburgh described his injuries as pain in his back and neck, headaches, depression, problems sleeping and difficulty with relationships. His problems started with the first accident and were made worse by the second. In closing submissions, Mr. Emburgh argued that he was hospitalized seven days, that he was unconscious for most of that time and that he broke his collar bone. I prefer the documentary evidence that was made at the time of the accident that reported Mr. Emburgh was confused at the time of the accident and he was fully conscious when he arrived at the hospital. I find that although the collar bone was broken, it healed on its own and that the only residual impairment is a bump on the collar bone which does not bother Mr. Emburgh.

At the time of the accidents, Mr. Emburgh was not working and was in receipt of a disability pension from the Canada Pension Plan for depression and a 15% permanent disability award from WSIB for a back injury.

The Law:

Section 12 of the Schedule sets out the criteria for entitlement to a weekly non-earner benefit. In Mr. Emburgh’s case the criteria are set out in section 12 (1) 1. as follows:

(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 meets any of the following qualifications:

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 does not qualify for an income replacement benefit.

“Complete inability to carry on a normal life” is defined in section 2 (4):

(4) For the purpose of this Regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

An understanding of a person’s injuries is helpful, however, the test for entitlement is a functional test and requires me to compare Mr. Emburgh’s activities of normal living both before and after the accidents and determine whether he suffers a complete inability to carry on what he normally did before the accidents due to impairments he suffered as a result of the accidents.

Pre-accidents activities of normal living:

Mr. Emburgh testified that before the accidents he worked as a truck driver and a factory worker. He did not say how long before the accidents. He testified that he could keep himself employed. A physiatrist examined Mr. Emburgh after the first accident and reported to Co-operators that Mr. Emburgh last worked in 1993 as a school bus driver, work which he had done off and on for three years, that he was laid off and that he could not find any other work. I accept that Mr. Emburgh had not worked for several years prior to the first accident because the evidence of the assessor is more detailed than Mr. Emburgh’s testimony. I find working or looking for work was not one of Mr. Emburgh’s normal activities before the accidents.

Mr. Emburgh had no hobbies and lead a sedentary life before the accidents. He lived in one room of a rooming house at the time of the assessments and I heard no evidence that his living arrangements were different before the accidents.

Mr. Emburgh testified that relationships and depression were not a problem before the accidents. I do not accept this because his receipt of CPP was based on disability due to depression.

Post-accidents activities of daily living:

Following the first accident, Mr. Emburgh completed an “Activities of Normal Life” form for Co‑operators. That form lists about 50 activities. Mr. Emburgh completed it and noted that he could not do seven of the listed activities. Even if the evidence is reliable, inability to do 7 of 50 activities of normal life does not amount to a complete inability to carry on a normal life.

Following the second accident, Dr. Kemp noted that Mr. Emburgh was impaired in that his ability to perform laundry and housekeeping activities was slowed.

Shortly after the second accident, Dr. Kemp signed a letter confirming his conversation with a physiotherapist arranged by Co-operators. In that letter he agreed that Mr. Emburgh was capable of his pre-accident mobility activities, including use of the bus and subway system and was capable of performing his personal care activities. He would require assistance with heavier homemaking activities. This does not amount to a complete inability to carry on a normal life.

Conclusion:

Although Mr. Emburgh suffered some neck, back and shoulder pain after the two accidents, and although his depression may have worsened as a result of the two accidents, he did not suffer a complete inability to carry on his normal life as a result of the two accidents. Accordingly, his Applications for Arbitration are dismissed.

EXPENSES:

Ms. Samworth asked for expenses of the arbitration proceeding: $2,000 costs; $3,000 filing fee; and, $266.70 for disbursements to serve witnesses with summonses. Mr. Emburgh said it was not fair that he have to pay expenses.

Following the pre-hearing of this matter in June 2009, the Arbitrator reported to the parties. That letter included the warning that an arbitrator may order one party pay the other party’s expenses and set out the criteria for making such an order.

The main criteria in this case are that Co-operators won and Mr. Emburgh’s case had no merit. Co-operators’ limitation defence by itself was sufficient to dismiss the Applications for Arbitration. Further, I heard no evidence to support a finding of a complete inability to carry on a normal life. Having regard to the criteria, I order that Mr. Emburgh pay Co-operators’ expenses.

The hearing took half a day. Ms. Samworth filed two books of exhibits, a Brief of Authorities and a Factum, all of which I found helpful.

I allow costs of $2,000 as reasonable. I have no jurisdiction to award the $3,000 filing fee. I decline to award any disbursements for witnesses as they did not come and were not necessary.

May 17, 2010

William Renahan Arbitrator

Date