Evelyn Aidoo v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2015 ONFSCDRS 195

Neutral Citation: 2015 ONFSCDRS 195

Appeal P14-00039

OFFICE OF THE DIRECTOR OF ARBITRATIONS

EVELYN AIDOO Appellant

and

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC. Respondent

BEFORE: David Evans

REPRESENTATIVES: Neritan Ciraku for Ms. Evelyn Aidoo Jason Hepburn for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

HEARING DATE: September 3, 2015

APPEAL ORDER

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

The Arbitrator’s order of September 26, 2014 is confirmed and this appeal is dismissed.
If the parties cannot agree on the legal expenses of this appeal, an expense hearing shall be requested, as set out below, within forty-five days of this decision.

September 24, 2015

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

In a decision dated September 26, 2014, Arbitrator Alan G. Smith awarded Ms. Evelyn Aidoo caregiver benefits under s. 13 of the SABS–2010¹ for 43 weeks at $110 per week, but denied her claims for interest on those benefits and awarded neither party their expenses of the arbitration.

Ms. Aidoo appeals these orders, seeking a caregiving benefit of $400 per week, interest on the outstanding benefits, and expenses.

II. BACKGROUND

Ms. Aidoo was injured in a motor vehicle accident on May 1, 2011. Shortly after the accident, she complained of pounding headaches, tension in the neck area, and dull pain in her mid-back. Security National approved and paid $3,500, the MIG limit, for physiotherapy. (At arbitration, she was denied medical benefits beyond the MIG, an order not under appeal.)

Ms. Aidoo is a single mother with four sons who had chosen optional housekeeping and caregiver benefits under s. 28 of the SABS. The maximum caregiver benefit for her under s. 13(2) for reasonable and necessary expenses incurred as a result of the accident in caring for persons in need of care was $400 per week: $250 per week for the first child, and $50 per week for each of the rest of the children. Ms. Aidoo testified that her half-sister, Monique Aidoo, provided caregiver and housekeeping services after the accident. She testified that, while Monique Aidoo’s services gradually decreased from the initial 5 hours a day 4 or 5 days a week, Monique was still working at least 2 days a week 104 weeks after the accident. Ms. Aidoo testified that she promised to pay Monique $500 a week for her caregiver and housekeeping services and claimed that amount for 104 weeks after the accident.

The Arbitrator denied the housekeeping claim of $100 a week. He allowed the caregiver claim, but not for the 104 weeks sought by Ms. Aidoo because Monique Aidoo testified that by 43 weeks after the accident – the end of February 2012 – she was no longer helping Ms. Aidoo.

The Arbitrator found that Ms. Aidoo’s exaggeration of her claim of benefits for 104 weeks when it should have been 43 undermined her credibility, so he preferred the evidence of the assessors where it conflicted with hers regarding the reasonable and necessary expenses she incurred as a result of the accident in caring for a person in need of care.

For that reason, the Arbitrator preferred the in-home assessment conducted in July 2011 by Occupational Therapist Karen Forse. He accepted Ms. Forse’s recommendation that Ms. Aidoo be provided with 11 hours per week of caregiver assistance. In light of Monique Aidoo’s evidence, the benefit for expenses incurred was payable for 43 weeks after the accident.

As for whether the expenses were incurred, the SABS provides in s. 7(e)(iii)(B) that expenses for services provided by non-professionals are not “incurred” unless “the person who provided the goods or services … sustained an economic loss as a result of providing the goods or services to the insured person.” The Arbitrator accepted Monique Aidoo’s testimony that she sustained an economic loss. She testified she had not started a job that would have paid $12 an hour because she felt obliged to help her sister. The Arbitrator found her testimony credible and unrefuted. However, no evidence about the economic loss was provided to Security National despite its requests for information until shortly before the hearing which, as we will see, had an impact on the Arbitrator’s order regarding interest.

As to the hourly rate for the caregiver services, the adjuster for Security National testified that it paid $10 an hour for such services. The Arbitrator found the Insurer’s rate reasonable.

The Arbitrator concluded that Ms. Aidoo was owed $4,730.00 for caregiver benefits. However, he declined to award interest because of her delay in providing information about whether Monique Aidoo suffered economic loss in providing the caregiving services.

Finally, given the mixed results, the Arbitrator found that each party should bear their own costs of the arbitration.

III. ANALYSIS

Ms. Aidoo submits that the Arbitrator erred in relying exclusively on Ms. Forse’s findings in her in-home assessment, to the exclusion of the lay witness evidence of Monique Aidoo, to determine the hours per week for the caregiver benefit.

However, it is not my job to weigh the evidence. The Arbitrator had evidence before him and preferred Ms. Forse’s report. He gave reasons why he found difficulties with Ms. Aidoo’s credibility regarding the reasonable and necessary expenses incurred due to her exaggerated claim. Accordingly, I find no error of law.

With respect to the hourly rate, Ms. Aidoo submits that the $10 rate “is contrary to the minimum wage in Ontario that was $10.25 per hour at that time as well as FSCO caselaw.” However, she did not refer me to any provision that ties the rate for caregiver services to the minimum wage, nor did she cite any cases to support that proposition. While in some cases an Arbitrator may find a higher hourly rate reasonable, in this case the Arbitrator found $10 reasonable. This is a finding of fact, and again I have no reason to intervene. I find no error of law.

Ms. Aidoo submits that the Arbitrator erred in failing to award her interest on the outstanding benefits pursuant to s. 51(1): “An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.”

However, the Arbitrator found that until very shortly before the arbitration hearing Ms. Aidoo was in breach of s. 33, the duty of an applicant to provide information. In particular, s. 33(1)1 provides that an applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with “1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.”

As noted above, payment for a nonprofessional’s services is only payable if that person suffered an economic loss in providing the services. Thus, information about Monique Aidoo’s economic loss was required to assist Security National in determining if Ms. Aidoo was entitled to a benefit. At p. 4 of his decision, the Arbitrator sets out the Insurer’s unsuccessful attempts in 2011 to get proof of Monique Aidoo’s economic loss. As he notes, “No details of economic loss were provided until a statutory declaration by Monique Aidoo was proffered in April 2014,” shortly before the hearing.

Furthermore, s. 33(6) provides that “The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1)…” Accordingly, Security National was not liable to pay the benefit because the requested information was not provided, so the benefits were never overdue under s. 51(1). Therefore, the Arbitrator did not err in refusing to award Ms. Aidoo interest.

Finally, Ms. Aidoo submits that the Arbitrator erred in making a finding about expenses without hearing from the parties. She submits that at the end of the arbitration hearing, Security National wished to speak about expenses, but she objected and no submissions were made. She was then surprised when the Arbitrator went ahead and made an order about expenses.

While I agree that the Arbitrator should have either allowed the parties to make submissions at the hearing or after rendering a decision on the substantive issues, I am not prepared to send this matter back for a further determination, since I am not persuaded there was a breach of natural justice requiring such an order.

Ms. Aidoo submits that the “Learned Arbitrator was not aware that the Respondent had presented no settlement offer to the Appellant and as a result, compelled the Appellant to proceed with the arbitration, for which she was partially successful. As such, the Appellant should have been entitled to all or a portion of her costs of the arbitration.”

There are two things wrong with that submission. First, while the criteria to be considered by an adjudicator in awarding expenses include an offer to settle, the relevant criterion under Rule 75.2(b) is “any written offers to settle made in accordance with Rule 76.” Rule 76 offers have to be made in writing after mediation and before the conclusion of the hearing. Therefore, Rule 75.2(b) does not apply where the insurer did not make an offer, as in this case. Second, it was not until shortly before the hearing that Security National received information to suggest that Monique Aidoo sustained an economic loss, the precondition to determining whether Ms. Aidoo was even entitled to a benefit. So it was just as much Ms. Aidoo’s noncompliance with R. 33 that compelled the parties to proceed to arbitration.

Moreover, in the absence of a written offer to settle made in accordance with Rule 76, the Arbitrator actually did what he was supposed to do pursuant to Rule 77.1, namely make an order both on the substance and on expenses:

77.1 When no party to an adjudication seeks to have an Offer to Settle or a Response to an Offer to Settle considered by the adjudicator in connection with an award of expenses, the parties will jointly inform the adjudicator of that fact at the conclusion of the hearing; and the adjudicator will make an award of expenses as part of his or her order on the substantive issues in dispute. [Emphasis added.]

To repeat, where there is no Rule 76 offer to settle to be considered, the award of expenses is supposed to be part of the order on the substantive issues. The Arbitrator did that here.

Since there was no written offer to settle, the only relevant criterion is that of R. 75.2(a), “each party’s degree of success in the outcome of the proceeding.” I find it would be a waste of resources to remit this issue back to the Arbitrator. Success was mixed, and in similar circumstances where no other criteria applied, many arbitrators have ruled that each party should bear their own expenses. Accordingly, I find that there was no breach of natural justice.

The appeal is therefore denied, and the Arbitrator’s order is affirmed.

IV. EXPENSES

Unfortunately, the parties did not advise me under R. 77 if there was or was not a written offer to settle that they wished me to consider. Parties appearing before an adjudicator should be prepared to speak to expenses along with the substantive issues unless there is a written offer to settle to be considered.

If there is no such written offer, an order dealing with both the substantive issues and expenses will be issued, as required by R. 77.1.

As for this case, if the parties cannot agree on the legal expenses of this appeal, the time for either party to request an appeal expense hearing under the Dispute Resolution Practice Code is extended to forty-five days from the date of this decision. The request shall be accompanied by a Bill of Costs and submissions on any disputed entitlement or quantum issues.

September 24, 2015

David Evans Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.