Kevin Simser v. Aviva Canada Inc., 2013 ONFSCDRS 10

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

Neutral Citation: 2013 ONFSCDRS 10

FSCO A11-004610

BETWEEN:

KEVIN SIMSER

Applicant

and

AVIVA CANADA INC.

Insurer

Before: Edward Lee

Heard: July 9, 10, 2012, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions received August 8, 2012.

Appearances: David Preszler for Mr. Simser James M. Brown for Aviva Canada Inc.

The Applicant, Kevin Simser, received attendant care and housekeeping and home maintenance services from Julie and Kasey Simser and JJ Lawncare following his accident on November 10, 2010. The insurer, Aviva Canada Inc. (“Aviva”), disputed whether these services were “incurred expenses” as required by section 3(7)(e) of the Schedule.¹

Issues:

The issues in this hearing are:

Is Mr. Simser entitled to attendant care benefits of $2,459.01 per month from February 1, 2011 to October 1, 2011?
Is Mr. Simser entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 1, 2011 to November 1, 2011?
Is Aviva liable to pay Mr. Simser a special award because it unreasonably withheld or delayed payments to Mr. Simser?
Is Aviva liable to pay Mr. Simser’s expenses in respect of this arbitration?
Is Mr. Simser liable to pay Aviva’s expenses in respect of the arbitration?
Is Mr. Simser entitled to interest for the overdue payment of benefits?

Result:

Mr. Simser is not entitled to attendant care benefits of $2,459.01 per month from February 1, 2011 to October 1, 2011.
Mr. Simser is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from November 1, 2010 to November 1, 2011.
Aviva is not liable to pay Mr. Simser a special award because it unreasonably withheld or delayed payments to Mr. Simser.
Aviva is not liable to pay Mr. Simser’s expenses in respect of this arbitration.
Mr. Simser is not liable to pay Aviva’s expenses in respect of the arbitration.
Mr. Simser is not entitled to interest for the overdue payment of benefits.

Legal Basis of the Dispute:

Section 3(7)(e) of the Schedule sets out the conditions that must be fulfilled before an expense (such as an attendant care or housekeeping and home maintenance benefit) may be considered to have been “incurred” by an insured person.

According to this recently amended section, an expense in respect of services is not “incurred” unless:

(1) the insured person has received the services;

(2) the insured person has paid or promised to pay or is otherwise legally obligated to pay the expense; and

(3) the person who provided the goods or services:

(i) did so in the course of the employment, occupation or profession in which he was ordinarily engaged, but for the accident; or

(ii) the person sustained an economic loss as a result of providing those goods or services to the insured person.²

In this case, the parties agree that parts (1) and (2) of the definition have been met. The dispute is limited to part (3). The questions to be answered are the following:

(1) Have either or both Julie and Kasey Simser sustained an economic loss as a result of providing attendant care and housekeeping and home maintenance services to Kevin Simser (Section 3(7)(e)(iii)(B) of the Schedule)?

(2) Has JJ Lawncare provided housekeeping and home maintenance services in the course of the employment, occupation or profession in which it would ordinarily have been engaged, but for the accident (section 3(7)(e)(iii)(A) of the Schedule)?

I must also consider the meaning of the words, “economic loss” as used in section 3(7)(3) of the Schedule.

The Admissibility of Professor Carr’s Report Concerning Economic Loss:

At the outset of the hearing, Mr. Simser sought to enter into evidence an opinion report³ prepared by Professor Jack Carr, economist, to help interpret or clarify the meaning of the words “economic loss”.

Aviva opposed the admission of this report on the grounds that it was irrelevant, unnecessary and threatened to usurp my role as it answered the ultimate question that was to be adjudicated.⁴

Mr. Simser argued the report was relevant and necessary because it elucidated a term that was both undefined in the Schedule and outside my ordinary knowledge. The report did not usurp my role because it only described the term “economic loss” as understood in the field of economics, and it was still within my jurisdiction to decide, on a factual basis, whether Julie and Kasey Simser had indeed sustained an economic loss. Further, it was now accepted law that opinion evidence was not inadmissible merely because it addressed the ultimate issue in a dispute.⁵

I agree with Mr. Simser. The report details how the words, “economic loss” have been defined and applied in the field of economics. Although “economic loss” may certainly have a different use and meaning in the Schedule, I am satisfied that the report is relevant, and it would be helpful to consider an economist’s opinion. Further, it remains a factual determination as to whether an economic loss has been sustained by Julie or Kasey Simser.

Finally, I also agree with the arbitrator in Borowski and Aviva Canada Inc., who held that the proper analysis of the issue of admissibility of expert reports should center on the weight attributed to the opinion, rather than its admissibility.⁶

Professor Carr’s report is admissible.

Should the words, “economic loss”, be given the meaning suggested in Professor Carr’s report?

Mr. Simser argued that “economic loss”, must be given a wide and expansive interpretation because had the Legislature intended the words to be limited to “mere financial or monetary loss”, they would have used those words. Instead, “economic loss” was chosen, and those words should be interpreted as used in the field of economics.

According to Professor Carr, there are various types of economic loss, of which loss of income is but one. Loss of time devoted to labour or leisure is another type of economic loss. For example, the cost of attending university is not just tuition, but also the “opportunity cost” of the student’s time. The student loses income by not using his or her time to work instead of attending university. This is an “alternative opportunity cost”. The economic loss is equal to the opportunity cost of using this time in some other activity.⁷

Finally, Mr. Simser argued that this wider reading of the term, “economic loss”, was consistent with the consumer protection intent of the Schedule.

In response, Aviva argued that the words, “economic loss”, must be given their ordinary, everyday meaning, applying the modern principle of interpretation⁸ enunciated by Professor Driedger and adopted by the Supreme Court of Canada.

Today there is only one principle or approach, namely the words of an Act are to be read in their entire context, in their grammatical and ordinary senses harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.⁹

Aviva added that Black’s Law Dictionary gave an ordinary, everyday definition to those words:

Economic loss: A monetary loss such as lost wages or lost profits. The term usually refers to a type of damages recoverable in a lawsuit. For example, in a products-liability suit, economic loss includes the cost of repair or replacement of defective property, as well as commercial loss for the property’s inadequate value and consequent loss of profits or use.¹⁰

I find Aviva’s suggested interpretation of “economic loss” — a financial or monetary loss — is closer to the ordinary, everyday meaning of those words. Professor Carr’s definition is more specialized and incorporates knowledge, theories and assumptions from the field of economics outside of their ordinary sense or everyday meaning. Further, nothing in the Schedule suggests that such specialized knowledge, theories or assumption should be incorporated into their definition.

More importantly, Aviva’s reasoning is also supported by another principle of statutory interpretation, set out by Professor Driedger as follows:

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain.¹¹

As Aviva argued, whenever a service is provided, some person will have provided it. Further, a service provider will always expend or lose time in the provision of that service. Some opportunity, chance or time will always be lost. Therefore, if Professor Carr’s definition is applied to the Schedule, every service provider will incur an economic loss in every instance. This would render the distinction between professional and lay service providers meaningless, and would negate the meaning of the entire amendment. The application of Professor Carr’s definition would result in the new section having essentially the same effect as the former section. In that case, the Legislature would have spoken pointlessly, repetitively or in vain. The recently amended section would be rendered superfluous and meaningless.

Although there may be specific occasions where a loss of opportunity might equate to an “economic loss” under the Schedule, I do not find that “economic loss”, should in every instance, encompass the loss of time, leisure, labour and opportunity, as suggested by Professor Carr. His definition is too hypothetical, abstract and overly-encompassing, and would render the section meaningless and superfluous. Rather, I find that “economic loss” as applied in the Schedule, must relate to some form of financial or monetary loss.

A similar approach was adopted by the learned judge in the decision of Henry and Gore Mutual Insurance Company, who held as follows:

A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured—and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met.¹² [italics mine]

Therefore, notwithstanding the consumer protection considerations suggested by Mr. Simser, I reject the definition for “economic loss” suggested by Professor Carr.

(1) Have either or both Julie and Kasey Simser sustained an economic loss as a result of providing attendant care and housekeeping and home maintenance services to Mr. Simser from February 1, 2011 to October 1, 2011?

a. Julie Simser

Julie Simser testified that she provided attendant care and housekeeping and home maintenance services to Mr. Simser at his home from February 1, 2011 to October 1, 2011. She continued to work at her normal job during this period, going to work early in the morning and leaving at various hours during the day to provide these services, and as a result, sustained an economic loss.

I found much of Julie Simser’s testimony vague and lacking in detail. The economic losses alleged were unquantifiable, abstract or hypothetical, and her testimony furnished little or no specificity or clarification. Although she testified she lost five to ten hours of work per week in providing services to Mr. Simser, she provided no documentation from her workplace to substantiate these reductions, despite numerous requests from the insurer.

She also testified that she worked less overtime during the period in question, but this too, was unspecific and unsubstantiated. No documentation was tendered to prove the hours of overtime worked before she commenced providing services to Mr. Simser, as opposed to the hours of overtime worked during the time she provided services. No evidence was tendered to prove that Ms. Simser had actually contracted with her employer or had even committed herself (verbally or otherwise) to work those overtime hours. Her testimony convinced me that working overtime was nothing more than an abstract or hypothetical possibility.

Ms. Simser never stated she earned less income while she was a service provider than before she became a service provider. She produced no documentation to prove any losses whatsoever. These, too, were glaring lacunae in her testimony.

As early as the adjustment period, Aviva made requests to Mr. Simser’s counsel for workplace and income documentation to substantiate the claims of economic loss. In cross-examination, Julie Simser stated that such documentation was readily available, but she had not provided it because she did not know it was necessary. I did not find this answer credible, given the many requests for this information. Instead, I drew an adverse inference from the absence of such documentation. It would have been simple for Ms. Simser to supply copies of her paycheques or records of the number of hours worked during her pay records, but she did not do so. The vagueness, lack of specificity and the lack of testimony on crucial points was lethal to her credibility.

Therefore, I do not find that Julie Simser sustained an economic loss as a result of providing housekeeping and home maintenance and attendant care services to Mr. Simser.

b. Kasey Simser

Kasey Simser did not testify before me. The only evidence tendered in regard to her situation was given by Julie Simser who stated that Kasey Simser lost time from her schooling, which was adversely affected as a result of the attendant care and housekeeping services Kasey rendered to Mr. Simser. I also found this testimony vague and inconclusive. It was unclear how her schooling had been affected. There was no evidence as to her academic plans or potential. No transcripts, attendance records or scholastic documentation were tendered. Further, there was no evidence relating to a financial or monetary loss.

I also drew an adverse inference based on Kasey Simser’s non-appearance. She did not provide evidence that she had sustained any loss whatsoever. I do not find that Kasey Simser sustained an economic loss in providing attendant care and housekeeping and home maintenance services to Mr. Simser.

(2) Did JJ Lawncare provide housekeeping and home maintenance services in the course of the employment, occupation or profession in which it was ordinarily engaged?

No principal, employee or representative of JJ Lawncare testified before me. No documentary or business records relating to JJ Lawncare were tendered, apart from several invoices¹³. These were simple, generic documents that provided little or no information. The only evidence in regard to JJ Lawncare was provided by Julie Simser, who testified that Mr. Simser had hired Joey Parkins of JJ Lawncare to mow his lawn.

Most of Aviva’s questions in regard to JJ Lawncare and whether it had been ordinarily engaged in the occupation of providing lawncare were related to the lack of business documentation provided by this entity. Such questions might have been resolved had a representative of JJ Lawncare actually attended at the hearing, and I drew an adverse inference based on the non-appearance of any of JJ Lawncare’s principals, employees or representatives. Further, I did not find the evidence of Julie Simser convincing or credible in regard to the business status of JJ Lawncare.

I do not find that JJ Lawncare provided housekeeping and home maintenance services in the course of the employment, occupation or profession in which it was ordinarily engaged.

(3) Out-of- Pocket Expenses:

One last point needs to be addressed. Mr. Simser argued that Aviva had explicitly recognised Julie Simser had sustained an economic loss when it paid $797.96 for out-of-pocket expenses listed in an Expenses Claim Form (OCF-6)¹⁴ accompanied by receipts.¹⁵ An examination of the form and receipts shows that the total amount of $797.86 claimed by Julie Simser was composed of miscellaneous fuel charges, parking fees and restaurant bills incurred while apparently travelling from her home to the Peterborough Regional Health Centre where Mr. Simser was initially convalescing.

The vast majority of those receipts relate to the period proceeding February 1, 2011, and were not in dispute. Nevertheless, three or four of the receipts, totalling approximately $50.00, were incurred on February 7 and 18, 2011, within the period in dispute when Julie Simser was providing attendant care and housekeeping services to Mr. Simser at his home.

The claims for attendant care and housekeeping and home maintenance for the period in dispute were submitted separately and on different OCF-6 forms prepared on different dates.¹⁶ It was unclear how Aviva categorized the $797.96 claimed for fuel, parking and meals, although a letter¹⁷ from Aviva confirms that $797.86 was paid for “documented incurred expenses”. The $797.96 was also listed as “payable” as part of attendant care on an OCF-9¹⁸, but that OCF-9 referred to a different OCF-6¹⁹, which invoiced a claim for attendant care of $8,088.05, incurred from April 1 to April 30, 2011.

Mr. Simser argued that pursuant to Henry v. Gore Mutual Insurance Company,²⁰ the threshold for incurred expenses had been met by the payment made by Aviva for the $797.96 in out-of-pocket expenses. This was a recognition of an economic loss, and the totality of the attendant care claim was thus payable. Further, the quantitative amount of the economic loss was irrelevant, and could be “… either a loss of time, a loss of opportunity, an actual monetary loss be it $0.01 or a bus ticket.”²¹

Mr. Simser submitted that this conclusion flowed from the decision of Henry v Gore Mutual where the learned judge held the following:

Economic loss is not defined in the regulations. If the amount as opposed to the fact of the economic loss were intended to be relevant, then one would expect the regulations to be of assistance in calculating the amount, since economic loss has been defined in very broad terms in claims for compensation in tort law cases, and has been the subject of a great deal of jurisprudence because of the difficulty in quantification. This omission implies that no such calculation is relevant beyond a finding that the person has “sustained an economic loss” – or not. It is a threshold finding for ‘incurred expense”, but is not intended as a means of calculating the quantum of the incurred expense. I accept that the amended provisions now eliminate claims by non professional service providers who have not sustained an economic loss.²² [emphasis mine]

It is important to review the factual context of Henry v Gore Mutual. In that case, the judge was asked to determine the quantum of attendant care payable for attendant care services rendered by an applicant’s mother. She was a non-professional service provider who left her full time (forty hour per week) employment as an assistant manager, earning approximately $2,100.00 per month, to stay at home to provide attendant care services.

There was no question that the service provider in Henry v Gore Mutual had sustained an economic loss in the form of lost income. The concept of the threshold was not addressed until the loss had been ascertained. The insurance company had sought to limit and reduce the quantum of the attendant care payable by calculating the number of hours worked and paying her a proportion of the attendant care expense. In establishing the concept of a threshold, the learned judge soundly rejected the insurance company’s submission, and allowed the full payment of attendant care expenses as determined to be reasonable and necessary from the Form 1.

In the present case, the only relevant portion of the $797.86 payment is approximately $50.00 (for gas and restaurant meals), which was incurred during the disputed period. Notwithstanding this payment, I find it wholly distinguishable from the Henry v. Gore Mutual situation, where there had been a concrete loss of income based on a service provider remaining at home from her full time employment.

Further, if I were to accept Mr. Simser’s submission, every service provider would be able to circumvent the amended regulations by purchasing a single meal in a restaurant, a tank of gas or as suggested by counsel, by paying “… $0.01 or a bus ticket”. This interpretation would again render the amendment meaningless and superfluous. The Legislature would then have spoken needlessly and repetitively. I do not find that this is a correct interpretation of the ruling in Henry v. Gore Mutual.

Therefore I do not find that the mere payment of approximately $50.00 for gas, parking and restaurant invoices dated February 8, and 17, 2011 is sufficient to trigger the full payment of the attendant care and housekeeping services provided during the disputed period.

SPECIAL AWARD:

Finally, no evidence was tendered to convince me that Aviva unreasonably refused or delayed paying of any benefits.

EXPENSES:

The parties may contact me in regard to expenses pursuant to section 75 of the Dispute Resolution Practice Code.

January 16, 2013

Edward Lee Arbitrator

Date