Financial Services Commission of Ontario
Neutral Citation: 2012 ONFSCDRS 136
FSCO A11-000488
BETWEEN:
MARIA PISCOPO-PERROTTA Applicant
and
TD GENERAL INSURANCE COMPANY Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Alec Fadel
Heard: May 9, 2012, at the offices of the Financial Services Commission of Ontario in Toronto. The final written submission received on July 18, 2012.
Appearances: Ian Little for Ms. Piscopo-Perrotta Petros Yannakis for TD General Insurance Company
Issues:
The Applicant, Maria Piscopo-Perrotta, was injured in a motor vehicle accident on August 31, 2004. She applied for and received statutory accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.1 A number of issues arose concerning Ms. Piscopo-Perrotta’s entitlement to various accident benefits and ultimately she applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
At the pre-hearing, preliminary issues arose concerning the applicant’s claim for an income replacement benefit.
The parties disagreed on the employment status of the applicant at the time of the motor vehicle accident. The applicant claims to have been employed and working at the time of the accident. The company, Kintel General Contractors (Kintel), confirmed that the applicant had completed a training period in August and was to start her employment in September 2004. The insurer takes the position that the applicant was to commence employment only after the accident under a future contract of employment.
The insurer also takes the position that the applicant is out of time to arbitrate the issue of income replacement benefit as she did not apply for mediation within 2 years from the date of its denial relating to same.
The preliminary issue is:
Was Ms. Piscopo-Perrotta employed at the time of the motor vehicle accident, pursuant to subsection 4(1)1 of the Schedule?
If Ms. Piscopo-Perrotta is found to have been employed, is she precluded from proceeding to arbitration because her application for mediation was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and subsection 51(1) of the Schedule?
Result:
Ms. Piscopo-Perrotta was not employed at the time of the motor vehicle accident as per the Schedule.
Ms. Piscopo-Perrotta failed to file an application for mediation within the two year limitation period.
EVIDENCE AND ANALYSIS:
Was the applicant employed pursuant to the Schedule?
Prior to the motor vehicle accident, the eligibility requirement for an income replacement benefit was changed. Under section 4(2) of the Schedule in force at the time of the motor vehicle accident, a person involved in an accident on or after April 15, 2004 is not eligible for an income replacement benefit, if what they had at the time of the accident was a future contract of employment.
The applicant submitted her application for accident benefits on or about September 13, 2004. On the application, she described her working status as “Employed and Working,” recording her work dates of 16 August 2004 to 27 August 2004 at Kintel and that she received $500.00 per week.
An OCF-2 was submitted to the insurer on September 13, 2004 with income listed for the abovementioned two-week period. However, in an accompanying letter dated September 10, 2004, Ms. Raffaela Porco (now Pantuso), office manager at Kintel, wrote that the applicant “was to start a full time office position with our company as of September 7, 2004.” The letter confirmed that she had already completed a two week training period prior to the accident and states that the applicant “was to commence working once her children were back in school.” The letter also confirms that the applicant “was to receive an annual earning of $26,000.00, weekly gross is $500.00.”
Ms. Pantuso testified that the applicant had worked for Kintel previously and that she completed the training period in order to determine if she would be able to use the requisite accounting software. She did not explain sufficiently, however, why she did not put the applicant on the payroll in August 2004. She agreed in cross-examination that there were payroll deductions for things such as CPP and EI for employees, but stated that for the two weeks the applicant worked she did not feel it was worth it to put her on the books.
However, this does not address the three-week period prior to the accident where the parties claim the applicant had already started her employment. If, as is being submitted, the applicant had started her employment with Kintel on August 17, 2004 it is not clear why the applicant was not yet on the payroll by August 31, 2004, the date of the accident. I find there is little evidence before me to support that the applicant was employed at the time of the motor vehicle accident pursuant to the Schedule. At the time of the accident, the applicant had completed a training period in order to learn the software that she would be using when she was to start her job at Kintel for which she had not been paid.
The applicant testified that she worked for two weeks training on new software. The applicant testified that she