Kevin Simser v. Aviva Canada Inc., 2014 ONFSCDRS 4

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2014 ONFSCDRS 4

Appeal P13-00004

OFFICE OF THE DIRECTOR OF ARBITRATIONS

KEVIN SIMSER

Appellant

and

AVIVA CANADA INC.

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Mr. David E. Preszler and Mr. Michael Sloniowski for the Appellant, Mr. Kevin Simser

Mr. James M. Brown for the Respondent, Aviva Canada Inc.

HEARING DATE:

Oral submissions were received July 25, 2013 in person and October 2, 2013 by telephone conference. Additional written submissions were received by October 28, 2013

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Arbitrator’s January 16, 2013 decision is confirmed and the Notice of Appeal is dismissed.

2. If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested within sixty days of the date of this decision, as set out within.

January 9, 2014

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND AND NATURE OF THE APPEAL

This appeal concerns the expenses prerequisite in clause 3(7)(e) of the 2010 Schedule.¹ Clause 3(7)(e) states that, subject to subsection (8) (an insurer unreasonably withholding or delaying payment of an expense, that is not an issue in this case), an expense in respect of goods or services referred to in the 2010 Schedule is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

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

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person; [emphasis added]

The first issue in this appeal pertains to the requirement that economic loss be sustained as a result of providing the services to the insured person. The second issue pertains to the alternate requirement that the services be provided in the course of the employment, occupation or profession of the provider.

The Court of Appeal, in Henry and Gore Mutual Insurance Company, 2013 ONCA 480, addressed the issue of “economic loss.” The Court found, in part:

1. The 2010 Schedule does not define “economic loss” (paragraph 6). The Court of Appeal stated that if the amount of the monthly care benefit were to be calculated based on the quantum of the economic loss sustained by the caregiver, this comprehensive legislation could have so indicated (paragraph 25).
2. The Court was guided by its decision in Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, that insurance coverage provisions are to be interpreted broadly while coverage exclusions or restrictions are to be construed narrowly in favour of the insured. To the extent that the word “incurred” restricts coverage available to an insured, it must be assigned a narrow meaning (paragraph 21). Economic loss serves as a threshold for benefit entitlement. Economic loss is not a measure or factor in quantifying the amount of reasonable and necessary benefits to be paid by an insurer (paragraph 22).

The words “goods or services” in clause 3(7)(e)(iii)(B) should be broadly construed to refer to a number of kinds of goods and services, including the services provided by an aide or attendant (paragraph 23).

3. The Court of Appeal held that the 2010 Schedule intended to provide a check on payments to family caregivers (paragraph 26) and that the economic loss requirement was a rough check on attendant care costs (paragraph 35).

The Court of Appeal noted FSCO’s March 31, 2009 Report on the Five-Year Review of Automobile Insurance. FSCO rejected attendant care benefits being restricted to instances where family members could show that an economic loss had been incurred. It did so based on the increased complexity that would be added to the system and that the main issue was whether care was required. The Court noted that the 2010 Schedule, without official commentary, included economic loss as a prerequisite (paragraphs 31 to 33).

4. The Court of Appeal held that if an economic loss is sustained, attendant care benefits are payable with respect to all care detailed in the Form 1 Assessment of Attendant Care Needs that is provided by the family member, subject to the monetary maximums in subsection 19(3) and other safeguards in the legislation (paragraph 36).

In the case before it, the Court held that the unchallenged Form 1 established the need for 24 hour attendant care. As long as the care was provided and the family member who provided the attendant care sustained an economic loss in so doing, the amount payable was not restricted to the 40 hours of paid employment per week foregone by the family member (paragraph 44).

5. Where no economic loss is sustained, no attendant care benefits are payable in respect of the care provided by a family member even if the family member provided care that would otherwise be provided by someone in the course of their employment, occupation or profession that would require the insurer to pay attendant care benefits (paragraph 36).

6. The Court of Appeal declined to define “economic loss.” It declined to impose as a prerequisite a de mininis financial or monetary loss or other restriction. On the facts of the case before it, the Court found that economic loss was clear (paragraph 37).

In the present case the Appellant, Mr. Kevin Simser, was seriously injured in a November 10, 2010 motor vehicle accident. He was flown by air ambulance to Sunnybrook Health Sciences Centre where he was hospitalized until December 3, 2010. He was then transferred to Peterborough Regional Health Centre, from which he was discharged February 1, 2011.

Julie Simser is the Appellant’s wife. They were separated at the time of the accident. Their daughter is Kasey Simser. Around February 1, 2011, Julie and Kasey Simser moved from a nearby town to the Appellant’s home to provide attendant care and housekeeping assistance. The Appellant hired JJ Lawncare in June 2011 for home maintenance on his rural property. Julie and Kasey Simser moved out of the Appellant’s home around October 1, 2011.

The Appellant applied for statutory automobile accident benefits under the 2010 Schedule from his first-party insurer, the Respondent, Aviva Canada Inc. Ms. L. McGowan, OT, prepared a February 4, 2011 Form 1 Assessment of Attendant Care Needs in the amount of $2,110.76 per month. In addition, housekeeping and home maintenance assistance was thought necessary for 2.5 hours per week, plus snow removal. Ms. McGowan’s July 6, 2011 Form 1 recalculated the Appellant’s attendant care needs ongoing from February 1, 2011 to be $2,459.01 per month.

On July 20, 2011, the Respondent confirmed it would pay Nightingale Nursing directly a maximum of $2,459.01 per month for attendant care based on the Form 1 assessment and a maximum of $100 a week for housekeeping services. Since October 1, 2011, the Appellant has received attendant care and housekeeping services through Nightingale Nursing, paid directly by the Respondent.

The following statutory accident benefits remained in dispute:

1. Attendant care benefits of $2,459.01 per month from February 1 to October 1, 2011.

2. Housekeeping and home maintenance benefits of $100 per week from February 1 to November 1, 2011.

Section 19 of the 2010 Schedule sets the prerequisites for payment of attendant care benefits. Clause 19(1)(a) states, in part:

19. (1) Attendant care benefits shall pay for all reasonable and necessary expenses,

(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant… [emphasis added]

Section 23 provides the entitlement prerequisites for housekeeping/home maintenance benefits:

23. The insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident. [emphasis added]

The parties agree that, during the period in dispute, the Appellant did receive the services relating to both the Form 1 attendant care and the housekeeping/home maintenance expenses (the reasonableness or necessity of neither being in dispute), such services being provided by Julie Simser, Kasey Simser and/or JJ Lawncare. The parties thus agree that the Appellant has met the first part of the “incurred” test in subclause 3(7)(e)(i) of the 2010 Schedule, set out above. The parties further agree that the Appellant has paid or has promised to pay for these services, thus meeting the second part of incurred test, set out in subclause 3(7)(e)(ii).

The dispute between the parties is restricted to whether the Appellant has met the third part of the incurred test, as stated by Arbitrator Lee (the “Arbitrator”) in his January 16, 2013 decision:

1. Have either or both Julie and Kasey Simser sustained an economic loss as a result of providing attendant care and housekeeping/home maintenance services to the Appellant?

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?

Ms. McGowan, who prepared the Form 1, Assessment of Attendant Care Needs, set out in her July 6, 2011 memo to the Respondent the ways in which Julie Simser had sustained economic losses as a result of providing attendant care and housekeeping services for the Appellant:

… I would like to reiterate that Mrs. Simser … has had to give up her apartment because she could not pay her bills and help Mr. Simser with his bills … Mrs. Simser has incurred a significant economic loss as a result of the provision of attendant care services to Kevin in that she has had to pay additional fuel costs, she has had to help out with his bills, and has missed time from work to care for him. Mrs. Simser will continue to incur such economic losses if she continues providing attendant care services to Kevin in the future until such time as he no longer requires such services. I ask that you reconsider providing payment to Mr. Simser for his attendant care on the grounds that he needs to compensate his wife, with whom he was separated from prior to his accident, for help with his personal care, and home maintenance.

At arbitration, the parties initially intended to provide oral submissions based on an Agreed Statement of Facts. The Arbitrator inquired of the Appellant as to the evidence upon which he was relying regarding Julie Simser’s claimed lost time from work and other losses. The Appellant asked what evidence the Arbitrator would like to hear. The Arbitrator responded, at page 65 of the transcript (filed in appeal on October 1, 2013):

Well, I think you have to present the evidence that’s going to make your case. I’m not going to tell you what I need.

The only witness called by the Appellant was Julie Simser. The Arbitrator found that the Appellant was not entitled to the benefits in dispute. The Appellant appeals that decision.

II. SUBMISSIONS AND ANALYSIS

I will address the Appellant’s alternative approaches to economic loss in turn.

(a) That Julie Simser sustained a loss of income

The Appellant cites Black’s Law Dictionary, Ninth Edition (Thomson Reuters 2009) that defines economic loss as a “monetary loss such as lost wages or lost profits.” He also notes the division in McGregor on Damages, 17th Edition (Carswell, Toronto, 2003), between pecuniary and non-pecuniary damages. Pecuniary damages comprise “all financial and material loss incurred such as loss of business profits or expenses of medical treatment.” It is “a money loss … capable of being arithmetically calculated in money, even though the calculation must sometimes be a rough one, where there are difficulties of proof.” Non-pecuniary losses, however, comprise “all losses which do not represent an inroad upon a person’s financial or material assets.”

The Appellant, at paragraph 12 of his supplementary written submissions, argues that as the Legislature did not define economic loss, it can be reasonably inferred that it left it open to be defined broadly and to include any pecuniary loss. The Appellant argues that while Julie Simser continued to work at her regular job while providing attendant care and housekeeping services for the Appellant, she was required to leave work at various times during the day, losing five to ten hours of work per week with a consequent financial or monetary loss.

Commenting on Julie Simser’s testimony, the Arbitrator held that the “vagueness, lack of specificity and the lack of testimony on crucial points was lethal to her credibility.” He found her alleged losses of income unspecific, unsubstantiated, unquantifiable, abstract or hypothetical, that she provided no substantiating documentation from her workplace regarding her claimed loss of either regular or overtime hours despite numerous requests from the Respondent.

Ms. Simser testified that such documentation was readily available, but that she did not know it was required. The Arbitrator did not find this answer credible given the Respondent’s many requests for documentation. The Agreed Statement of Facts notes that the Respondent made one such request on March 21, 2011. The Appellant’s counsel replied on March 25, 2011 that he would be providing the Respondent shortly with the documentation confirming the sustained economic loss. Some fifteen months later, in July 2012, the parties came before the Arbitrator at the oral hearing. The Arbitrator took an adverse inference from the absence of the supporting documentation.

It is not disputed that loss of income is an economic loss. The Appellant does not dispute, in this appeal, the Arbitrator’s finding that the Appellant failed to establish, on a balance of probabilities, that Julie Simser sustained a loss of income as a result of providing the Appellant housekeeping and attendant care services. In any event, I am not persuaded there is a basis for overturning the Arbitrator’s finding that the Appellant had not met his evidential onus of establishing that Mrs. Simser sustained an economic loss in the form of lost wages as a result of providing such services to the Appellant.

(b) That Kasey Simser’s schooling was adversely affected

The Appellant argued that Kasey Simser lost time from school due to the attendant care and housekeeping duties she provided. The Arbitrator found it unclear how Kasey’s schooling had been affected. No transcripts, attendance records or scholastic documentation were provided. The Arbitrator took an adverse inference from Kasey Simser’s non-attendance at the hearing. The only evidence was that of Julie Simser, whom the Arbitrator found to be a poor witness.

The Appellant does not challenge, in this appeal, the Arbitrator’s finding that the Appellant had not established the evidentiary basis for Kasey Simser having sustained an economic loss related to her academic plans or potential. Hence, there was no focus on tuition or other educational costs that may have been thrown away, delayed entry into the work force, restricted career potential or other possible consequent forms of economic loss. I am not persuaded there is any basis for overturning the Arbitrator’s finding that this alternate claimed economic loss, as advanced, was not proven at arbitration.

(c) That the Respondent accepted incurred out-of-pocket expenses of $797.96 as an economic loss

A third basis of economic loss advanced by the Appellant was that Julie Simser had sustained out-of-pocket expenses as a result of providing housekeeping and attendant care benefits for the Appellant. The Respondent concedes that the Court of Appeal in Henry did not say, at least directly, that there must be some balance between the economic loss sustained and the indemnity provided by the benefit.

At arbitration, the Appellant explored whether Julie Simser had incurred expenses in moving to the Appellant’s home in February 2011. The transcript from the examination-in-chief reads, at page 78:

Q. When you moved from your home in Peterborough to Millbrook, did you have to pay movers or did you have any moving expenses?

A. Not really. I just kind of moved stuff myself.

Q. Just packed a bag and went?

A. Yeah.

The Appellant argues that nonetheless the Respondent conceded that Julie Simser had sustained an economic loss when it paid $797.96 for out-of-pocket expenses incurred from December 2010 to February 2011, listed in the Appellant’s May 2, 2011 OCF-6 Expenses Claim Form. The Appellant submits that, based on that concession, the Arbitrator was bound in law to have found that the economic loss requirement in clause 3(7)(e)(iii)(B) of the 2010 Schedule had been met.

The Arbitrator found that most of these expenses were incurred while the Appellant was still in hospital, prior to the February 2011 date when Julie and Kasey Simser moved in with the Appellant to provide housekeeping and the Form 1 attendant care services. The Arbitrator found that Julie Simser had incurred these gas, parking and restaurant expenses in travelling from her home to the hospital where the Appellant was convalescing.

At page 91 of the transcript, Julie Simser testified that she stopped submitting expenses to the Respondent because she assumed that as the Appellant was out of the hospital, her time back and forth would not be paid. At page 102, she testified that the $797 was for parking.

The Appellant does not dispute that almost all of the $797.96 in out-of-pocket expenses was sustained before the period the Attendant Care Form 1 applied. Clause 3(7)(e)(iii)(B) requires the economic loss be sustained as a result of providing “the” goods or services, not “any” goods or services. I see no basis for overturning the Arbitrator’s finding that the pre-February 2011 out-of-pocket expenses do not relate to the post-hospitalization goods or services that are in dispute.

(d) That the February 2011 out-of-pocket expenses are an economic loss relating to the benefits in dispute

The Appellant argues that the following out-of-pocket expenses were incurred in February 2011 and apply to the housekeeping and Form 1 attendant care benefits in dispute:

February 7, 2011

Gas Receipt Wendy’s

$21.60 $16.91

February 8, 2011

A&W Restaurant Receipt [not specified]

$14.77 $28.50

The Arbitrator held that the Respondent’s payment of these expenses was insufficient to trigger the full payment of the attendant care and housekeeping services claimed. Economic loss, in the Arbitrator’s view, could not simply mean trivial out-of-pocket expenses, such as a bus ticket, without defeating the purpose of the legislation.

The Appellant argues that the Arbitrator erred in this regard. He submits that if proof of financial loss is provided, then as a matter of right the full benefits claimed, or at least the attendant care and housekeeping expenses for February 2011, must be paid.

As noted, the Court of Appeal in Henry declined to impose a de minimis restriction on the definition provision. The Arbitrator did not have the benefit of the Court of Appeal decision.

The Arbitrator noted that the Appellant’s claims for attendant care and housekeeping services were submitted on separate OCF-6 expense forms, prepared on different dates. It was unclear to the Arbitrator how the Respondent had categorized the $797.96, although it confirmed it was paid for “documented incurred expenses.” Although the Respondent listed the $797.96 payable as part of attendant care on an OCF-9 Explanation of Benefits, that OCF-9 referred to a different OCF-6 Expenses Claim Form that invoiced $8,088.05 in attendant care for April 2011.

At the July 25, 2013 appeal hearing, the recollection of the Appellant’s counsel was that the February 2011 out-of-pocket expenses were sustained as a result of Julie Simser taking the Appellant to medical appointments and refilling his medications. However, at the October 2, 2013 appeal resumption (when the court reporter finally made available the arbitration transcript ordered shortly after the arbitration hearing), I was not referenced to any such testimony.

The A&W invoice submitted has a printed note that “Julie took off work to drive Kevin to Dr. Amee appointment.” This note was not referenced by the Appellant. I was not referred to any evidence that explained who wrote this note or how the A&W invoice was sustained as a result of providing the service of driving the Appellant to a medical appointment. In any event, I was not referred to anything in the applicable Form 1 that included driving the Appellant to medical appointments as an approved attendant care service.

The 2010 Schedule requires that the economic loss be sustained as a result of providing “the goods or services to the insured person.” Again, the services in question in this appeal are housekeeping and Form 1 attendant care. I am unable to see an evidential basis upon which the Arbitrator could find that the four February 2011 items noted above were sustained as a result of Julie or Kasey Simser providing these services to the Appellant.

(e) That Julie Simser sustained a non-monetary loss of opportunity

The Appellant argues that economic loss is also intended to encompass “less tangible forms of financial or monetary losses,” that time has a monetary component and, therefore, loss of time is a monetary or financial loss. Succinctly, at paragraph 6 of his supplementary written submissions, the Appellant “submits that ‘time spent’ by the service provider to care for the injured person is proof that an economic loss has been sustained” [emphasis in the original].

The Appellant relies on the April 27, 2012 letter of Jack Carr, Professor of Economics, that “economic loss is equal to the opportunity cost of using this time in some other activity.”

The Appellant argues that the new requirement that economic loss must be sustained shifts the burden onto the service provider to show that services have been actually rendered and that a debt has been incurred by the insured person. The Appellant argues that it would be discriminatory not to compensate spouses, relatives and other non-professionals for their services. He submits that the Arbitrator’s decision results in a huge windfall for insurers and a significant financial detriment to untold non-professional service providers who have provided attendant care in good faith and incurred economic losses, albeit not income losses in every case.

In her oral evidence, Julie Simser testified in her examination-in-chief, starting at page 91:

Q. Before the accident, what did you do for fun when you weren’t working?

A. I’d got [sic] to the movies, knit, crochet, go out for dinner with my girlfriends.

Q. And you’ve got two daughters. Did you spend time with them?

A. Yes, I did, a lot.

Q. If this accident wouldn’t have happened and you weren’t living with Kevin, would you have continued to do those things?

A. Yes, I would have.

The Appellant argues that “according to McGregor on Damages, an ‘economic loss’ can take many forms … If it is calculable, it is an economic loss. If is not calculable then it is a non-pecuniary loss. A loss may be a pecuniary loss ‘even though the calculation must sometime be a rough one where there are difficulties in proof.’” The Appellant submits that there is a calculable loss of Julie Simser’s time. Therefore, the Arbitrator erred in narrowly defining economic loss by not incorporating loss of time, leisure, labour and opportunity.

As noted by the Respondent, a fundamental difficulty with the Appellant’s submission is that the excerpt provided from McGregor on Damages does not mention “economic loss.”

The Automobile Accident Insurance Act, R.S.S. 1978, c A-35, as amended, referenced by the Appellant, does define “economic loss.” At section 40, under “Bodily Injury and Property Damage Liability,” economic loss is defined as any pecuniary loss arising out of or stemming from bodily injury caused by a motor vehicle arising out of an accident. Non-economic loss means any non-pecuniary loss. Section 103 of the Saskatchewan legislation, however, restricts a tort action for economic loss to past or future income loss.

The Arbitrator held that Professor Carr’s definition of “economic loss” incorporated specialized knowledge, theories or assumptions from the field of economics. He was not persuaded that the Professor’s definition, outside the ordinary sense or everyday meaning, should be incorporated into the Schedule.

The Arbitrator cited Sullivan on the Construction of Statutes, Fifth Edition (LexusNexis 2008), that it is presumed the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. The Arbitrator held that a service provider will always expend or lose time in the provision of a service, that some opportunity, chance or time will always be lost. Were Professor Carr’s definition to be applied to the Schedule, every service provider would incur an economic loss in every instance, negating the amendment.

I am not persuaded by the Appellant’s argument that the intent of the subclause 3(7)(e)(iii) economic loss prerequisite is simply to shift the burden onto the service provider to establish that the services have been provided and that a debt has been incurred. Subclause 3(7)(e)(i) already specifically requires that the insured person has received the goods or services to which the expense relates. Subclause 3(7)(e)(ii) specifically requires that the insured person has paid, has promised to pay or is otherwise legally obligated to pay the expense.

Further, the insurer’s contractual relationship is with the insured person, not the service provider. It is the insured person, Mr. Simser, who has brought this claim. It is Mr. Simser who has the onus of proof. In addition, as stated in Henry, economic loss is not a measure or factor in quantifying the amount of reasonable and necessary benefits to be paid by the insurer. Economic loss is, rather, a rough check on attendant care costs In the case of attendant care, the measure or factor in quantifying the amount of reasonable and necessary benefits is the Form 1 Assessment of Attendant Care Needs.

The provision of services is the provision of time. I agree with the Arbitrator that to adopt Professor Carr’s definition of economic loss to include taking time away from seeing movies, knitting, crocheting, going out with friends or any other activity would have the Legislature speaking pointlessly, rendering the economic loss requirement superfluous and meaningless. As set out in Sullivan, the governing principle of statutory interpretation is against tautology, that “every word and provision found in a statute is supposed to have a meaning and a function.”

The Respondent submits that at no point did the Arbitrator restrict economic loss to loss of income or profits. It argues that the Arbitrator “accepted that the term economic loss could be broader than a loss of income or loss of profits, provided there was a financial or monetary element to the loss. In other words, a loss of opportunity could equate to an ‘economic loss’ where there was a monetary and financial element to that loss.”

The Arbitrator stated that there may be specific occasions where a loss of opportunity might equate to an economic loss under the Schedule. In this case, the Appellant did not satisfy the Arbitrator that Julie or Kasey Simser had sustained an economic loss relating to the housekeeping and Form 1 attendant care benefits in question, as advanced in the form of loss of income, loss of schooling or out-of-pocket financial or monetary loss.

As the Court of Appeal stated in Henry, where no economic loss is sustained, no attendant care benefits are payable in respect of care provided by a family member even if the family member provided care that would otherwise be provided by someone in the course of their employment, occupation or profession that would require the insurer to pay attendant care benefits.

I am not persuaded that the Arbitrator erred in law in finding that the Appellant was not entitled to housekeeping and attendant care benefits for services provided by Julie and/or Kasey Simser. Accordingly, the Arbitrator’s order in this regard is confirmed and the appeal is dismissed.

(f) JJ Lawncare

The Appellant argues that JJ Lawncare was ordinarily engaged in the occupation of providing lawn care, meeting the alternate third requirement of incurred expenses. The Arbitrator stated that the only business records submitted were invoices that were “generic documents that provided little or no information.” He took an adverse inference from the non-attendance of a representative of JJ Lawncare. He found Julie Simser’s evidence neither convincing nor credible.

The Appellant submits that the Arbitrator ignored that the Appellant had, in fact, paid invoices for JJ Lawncare of $2,200 from June to late October 2011. The Appellant argues that the Respondent was not entitled to request additional information.

The Court of Appeal, in Henry, noted that paragraph 33(1)(1) of the Schedule provides that an applicant shall, within ten business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The Court held that this provision and the Commission case law² make it clear that an insurer can request information to verify, in that case, that a family member has sustained an economic loss.

Paragraph 3(7)(e)(iii) of the 2010 Schedule provides that the provider must have provided goods or services in the course of the employment, occupation or profession in which it would ordinarily have been engaged. The onus of proof is on the insured person. It is not sufficient that the expense has been paid. The Arbitrator set out his reasons why the Appellant had failed to meet his onus of establishing that JJ Lawncare provided its services in the course of the employment, occupation or profession in which it would ordinarily have been engaged. The role of an appellate officer is not to rehear and weigh the evidence, and come to his or her own decision. The Arbitrator’s order in this regard is also confirmed, and this appeal is dismissed.

III. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, applying the procedure in Rule 79.2 of the Code, an expense hearing shall be requested, as agreed, within sixty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of legal expenses, as are in dispute.

January 9, 2014

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, as amended.
2. 2Delegate Makepeace in Stargratt and Zurich Insurance Company, (FSCO P01-00045, March 31, 2003), Arbitrator Skinner in McKnight and Guarantee Company of North America, (FSCO A02-000299, October 28, 2003), and my appeal decision in Fernandes (Attorney of) v. Certas Direct Insurance Co., (FSCO P06-00030, February 14, 2008).