Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 54

FSCO A09-001427

BETWEEN:

KARVAN ADIB

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Richard Feldman

Heard: June 6, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. Karvan Adib, representing himself

Peter Yoo for RBC General Insurance Company

Background and Procedural Issues:

The Applicant, Karvan Adib, was injured in a motor vehicle accident on July 7, 2008. He applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Adib applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

When this application was commenced, the Applicant was represented by counsel. Subsequently, the Applicant’s counsel was permitted to remove herself as the Applicant’s representative and the hearing was adjourned from October 26-28, 2010 to June 6-8, 2011 to permit the Applicant time to prepare. These new hearing dates were marked as peremptory upon the Applicant.

On June 6, 2011, the parties both appeared before me. The Applicant represented himself. The Insurer was represented by Mr. Yoo. The Financial Services Commission arranged for a Farsi interpreter to assist the Applicant. The Applicant advised me that he had served no documents upon the Insurer and would not be relying upon any documents at this hearing. He also advised me that he would be calling no witnesses and would rely exclusively upon his own testimony.

I advised the Applicant that, without documents or witnesses, he would likely find it very difficult to meet the evidentiary onus upon him and that he might be at a disadvantage by appearing without legal representation. Notwithstanding that the hearing was marked as peremptory upon the Applicant, I enquired whether he was really ready to proceed with the hearing. The Applicant advised me that previously he had two different lawyers representing him with respect to this matter and that both experiences had been bad and he had no intention or desire to retain new counsel. He also advised me that he just wanted to get this matter over with and was anxious to have the hearing proceed as scheduled.

I proceeded to identify and confirm with the parties the issues to be decided in this arbitration and I explained to the parties how the hearing would proceed. The Applicant then testified on his own behalf and was cross-examined. The Insurer chose not to call any witnesses. I heard closing arguments from both parties. During closing arguments, for the first time, the Applicant enquired whether it would be possible to get an adjournment of this hearing so that he could look into retaining new counsel. Given the timing of this request and the contrary position the Applicant had taken only a few hours previously (the entire hearing lasted only about two hours), I denied this request. I then reserved my decision to consider the evidence and submissions that were presented on the morning of June 6, 2011.

Substantive Issues:

The issues in this hearing are:

Pursuant to section 13 of the Schedule, is Mr. Adib entitled to receive weekly caregiver benefits of $250.00 for services provided by Fatemeh Haidarpanah from October 24, 2008 onwards?
Pursuant to section 16 of the Schedule, is Mr. Adib entitled to attendant care benefits of $1,189.00 per month for services provided by Fatemeh Haidarpanah from October 24, 2008 onwards?
Pursuant to section 22 of the Schedule, is Mr. Adib entitled to receive payments of $100.00 per week for housekeeping and home maintenance services from October 24, 2008 onwards?
Pursuant to section 46(2) of the Schedule, is Mr. Adib entitled to interest for the overdue payment of benefits?
Is either party liable to pay the other party’s expenses in respect of the arbitration under s. 282(11) of the Insurance Act?

Result:

This application is dismissed.
The Applicant shall pay to the Insurer its expenses, fixed in the sum of $2,000.00.

EVIDENCE AND ANALYSIS:

Overview:

Early in the morning of July 7, 2008, the Applicant was driving his vehicle along Highway 401 on his way to work when his vehicle came into contact with another and then struck a concrete barrier. The police attended. A tow truck operator transported the Applicant to his home. The next day (and continuously thereafter), the Applicant returned to his work (self-employed in construction) but modified his duties to avoid heavy work and instead supervised others or sub-contracted work he did not feel up to doing. He alleges that he felt some pain in his head, neck and back as a result of the accident. He did not seek any medical attention for at least three weeks and only then because of a referral from his lawyer to a treatment facility. He received physiotherapy at this facility once a week for six or seven weeks but found that it did not help much with his back and neck pain.

Caregiver Benefits:

Pursuant to section 13 of the Schedule (as it read at the relevant time), an insurer shall pay an insured person reasonable and necessary expenses incurred after an accident for caregiving if: (1) at the time of the accident the insured person was residing with a person in need of care and the insured person was the primary caregiver for the person in need of care; and (2) as a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

At the time of the accident, the Applicant had a six-year-old son. The Applicant resided with his son and his wife, Fatemeh Haidarpanah. The Applicant testified that his primary responsibilities concerning his son were to drive him to daycare in the mornings and, some evenings, to take his son to karate or to play with his son. At the time of the accident, the Applicant’s wife did not work outside the home during the daytime and would take their son with her to the “daycare” facility at which she worked (at Extreme Fitness) from 4:00 p.m. until 9:00 p.m. The Applicant admitted that his son did not go to daycare every morning and that, on some mornings, the Applicant would go to work so early that it was his wife who would have to take care of any necessary transportation of their son. The Applicant also stated that, most weekdays, he did not return home from work until 6:30 p.m. Based upon the foregoing, I find that the Applicant was not the primary caregiver of his son at the time of the accident and, consequently, he is not entitled to claim caregiver benefits.

Furthermore, the Applicant and his wife separated in November 2008 (and later divorced). The Applicant’s wife left and took their son with her at some point in November 2008. Since then, the Applicant has not resided with his son. Nevertheless, the Applicant continued to submit invoices to RBC up to December 2008 for caregiving services allegedly provided by the Applicant’s wife as a result of the Applicant’s accident-related impairments. I find that any services provided by the Applicant’s wife after the date of their separation were related to that separation and not to any incapacity on the part of the Applicant. Thus, at best, the Applicant’s claim covers a period of three or four weeks from October 24, 2008 to the date of separation in November 2008.

Also, the Application for Expenses (OCF-6) forms signed by Applicant and his wife appear to be inaccurate, at best. For instance, these forms claim compensation for the period from July 7, 2008 through August 3, 2008 but the Applicant admitted that shortly prior to the accident his wife and son left Canada and were out of the country until about three weeks after the accident. Thus, even if the Applicant established that he was the primary caregiver and met the relevant test for disability, he would not have been providing care to his son during the three-week period after the accident in any event and is not entitled to be compensated for any caregiving provided by his wife during that period.

Finally, the Applicant adduced no evidence to explain how his accident-related injuries, if any, impaired him from performing his pre-accident caregiving duties, such as they were. He continued to be able to drive (to and from work for example) and, therefore, he could presumably have continued to transport his son to daycare, school or other activities. The Applicant has not adduced any medical evidence in support of his position and has not called any other witnesses to corroborate his testimony. The Applicant has simply failed to adduce sufficient evidence to establish on a balance of probabilities that, during the relevant time period, he suffered a substantial inability to engage in the caregiving activities in which he was engaged at the time of the accident.

For the foregoing reasons, this part of the application shall be dismissed.

Attendant Care Benefits:

An insurer is required to pay an insured person who sustains an impairment as a result of an accident for all reasonable and necessary expenses incurred by or on behalf of an insured person for services provided by an aide or attendant. When the Applicant was asked whether, as a result of the accident, there were personal care tasks (such as grooming, bathing, dressing, meal preparation, etc.) with which he required assistance after the accident, he stated, “No”, and was unsure why such a claim was ever advanced on his behalf. Similar to the claim for caregiving, I cannot rely upon the invoices submitted to RBC by or on behalf of the Applicant as these documents claim that the Applicant’s wife was providing attendant care services during times when she was either out of the country or estranged from the Applicant (and had no contact with him). Fatemeh Haidarpanah did not testify at this hearing.

Based upon the admission of the Applicant that he did not require attendant care as a result of this accident and for the other reasons stated above, this part of the application shall also be dismissed.

Housekeeping and Home Maintenance Benefits:

Pursuant to section 22 of the Schedule (as it read at the relevant time), an insurer shall pay an insured person reasonable and necessary expenses incurred after an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

According to the Applicant, at the time of the accident, the Applicant, his wife and their son shared a two-bedroom condominium unit on the 7^th floor of a complex. Also according to the Applicant, prior to the accident, he and his wife shared equally all housekeeping and home maintenance duties. The Applicant testified that his wife took over all housekeeping duties from approximately three weeks after the accident (when she returned to Canada) until she moved out of the matrimonial home in November 2008. After that, she had no contact with the Applicant for a couple of months and then would come by occasionally (starting in January 2009) to do laundry (his as well as her own). After November 2008, the Applicant hired a woman named “Lina” to help with the housework and he allegedly paid her $100 per visit and she attended once a week (at least until he sold the condominium in March 2009).

Similar to the claims for caregiving and attendant care, I cannot rely upon the invoices submitted to RBC by or on behalf of the Applicant as these documents claim compensation for services by the Applicant’s wife that the Applicant admitted before me that his wife did not actually provide (either because she was out of the country or because she was estranged from the Applicant and refused to have any contact with him). There are no documents concerning housekeeping services submitted from “Lina” or anyone else and no one testified concerning this issue other than the Applicant (i.e., there was no corroborating evidence as to what services were provided to the Applicant or how much was paid or was promised to be paid for those services). Perhaps more importantly, the Applicant adduced no evidence to explain exactly what were his pre-accident housekeeping activities and how his accident-related injuries, if any, impaired him from performing these activities. The Applicant adduced no medical evidence in support of his position and did not call any other witnesses to corroborate his testimony. The Applicant has failed to adduce sufficient evidence to establish on a balance of probabilities that, during the relevant time period, he suffered a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident.

For the foregoing reasons, this part of the application shall be dismissed.

Conclusion:

At the conclusion of the hearing, the Applicant advised me that he was not seeking any compensation from the Insurer but he did not request that I permit him to withdraw his claims. The Insurer submitted that the Applicant failed to meet his evidentiary onus with respect to all of his claims and that, in the face of no medical or other corroborating evidence and in the face of the Applicant’s admissions and the questionable invoices that were submitted by or on behalf of the Applicant with respect to these claims, this application ought to be dismissed in its entirety. I agree with the submissions of the Insurer.

While I have some sympathy for the Applicant and the fact that he was faced with the difficult task of representing himself in this matter, it does not alter the fact that, based upon the evidence before me, I have no difficulty in concluding that his claims have no real merit. For all of the foregoing reasons, this application shall be dismissed.

EXPENSES:

To save the time and expense of a second hearing, at the conclusion of the hearing on June 6, 2011, I invited both parties to make brief submissions on expenses. The Insurer indicated that, should it be successful, 100% of its counsel fees related to this matter (at the appropriate Legal Aid rates) would amount to about $6,500.00 plus disbursements (not including the $3,000.00 filing fee) of about $2,000.00 (for which Insurer’s counsel did not provide particulars). The Applicant suggested that if he were successful, he ought to be compensated $250-300 for missing a day’s work. Based upon the submissions of the parties, the only relevant criterion (of the criteria set out in the Expense Regulation) is the degree of success of each party in the outcome of the proceeding. The Insurer was completely successful in this case.

Although the hearing was originally scheduled to last three days, RBC was under the impression that the Applicant might not show up at all and RBC was aware that the Applicant had served no documents and had provided no notice of any intention to call expert witnesses. In the final analysis, this was a two-hour hearing, in which only the Applicant testified. Bearing in mind the principle of proportionality and the stated goals of this Commission to resolve disputes in the most just, quickest and least expensive manner, I indicated that it was my inclination in a case such as this to fix expenses rather than conduct a detailed assessment of expenses.

I hereby award to the Insurer its expenses of this proceeding, fixed in the amount of $2,000.00, inclusive of all fees, disbursements and any applicable taxes.

June 21, 2011

Richard Feldman Date

Arbitrator