Neutral Citation: 2016 ONFSCDRS 262

FSCO A13-013882 and A14-003591

BETWEEN:

SAHRA GULED and ISMAIL GULED

Applicants

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

Before: Arbitrator Alan G. Smith

Heard: In person at ADR Chambers on June 15, 16, 19; November 30 and December 2-4, 2015 and February 3 & 4, 2016, and by written submissions completed on July 19, 2016

Appearances: Ms. Sahra Guled and Mr. Ismail Guled participated Ms. Gabriella Deokaran participated for Ms. Sahra Guled and Mr. Ismail Guled Ms. Catherine Zingg participated for Personal Insurance Company of Canada

Issues:

The Applicants, Ms. Sahra Guled and Mr. Ismail Guled, were injured in a motor vehicle accident on February 7, 2012 and sought accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Sahra Guled and Mr. Ismail Guled, through their representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

For Ms. Guled:

Is Ms. Guled entitled to Caregiver Benefits of $400.00 per week from February 7, 2012 to July 31, 2013?
Is Ms. Guled entitled to Housekeeping and Home Maintenance Benefits from February 7, 2012 to July 31, 2013, in the total amount of $8,000.00?
Is Ms. Guled entitled to Medical and Rehabilitation Benefits in the amount of $2,200.00, service provider Soft Touch Rehab Clinic, OCF-18 dated October 30, 2013?
Is Ms. Guled entitled to Medical and Rehabilitation Benefits in the amount of $1,300.80, service provider Soft Touch Rehab Clinic, OCF-18 dated December 18, 2013?
Is Ms. Guled entitled to Medical and Rehabilitation Benefits in the amount of $1,300.00, service provider Physiomax Recovery, OCF-18 dated September 25, 2013?
Is Ms. Guled entitled to interest for the overdue payment of benefits?
Is Personal liable to pay Ms. Guled’s expenses in respect of the Arbitration?
Is Ms. Guled liable to pay Personal’s expenses in respect of the Arbitration?

For Mr. Guled:

Is Mr. Guled entitled to Income Replacement Benefits of $400.00 per week from February 14, 2012 to February 7, 2014?
Is Mr. Guled entitled to Medical and Rehabilitation Benefits in the amount of $1,299.00, service provider Soft Touch Rehab Clinic, OCF-18 dated January 29, 2014?
Is Mr. Guled entitled to Medical and Rehabilitation Benefits in the amount of $415.00, service provider Soft Touch Rehab Clinic, OCF-18 dated October 30, 2013?
Is Mr. Guled entitled to $1,979.36 for the cost of a psychological assessment?
Is Mr. Guled entitled to interest for the overdue payment of benefits?
Is Personal liable to pay Mr. Guled’s expenses in respect of the Arbitration?
Is Mr. Guled liable to pay Personal’s expenses in respect of the Arbitration?

Result:

For Ms. Guled:

Ms. Guled is not entitled to Caregiver Benefits of $400.00 per week from February 7, 2012 to July 31, 2013;
Ms. Guled is not entitled to Housekeeping and Home Maintenance Benefits from February 7, 2012 to July 31, 2013, in the total amount of $8,000.00;
Ms. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $2,200.00, service provider Soft Touch Rehab Clinic, OCF-18 dated October 30, 2013;
Ms. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $1,300.80, service provider Soft Touch Rehab Clinic, OCF-18 dated December 18, 2013;
Ms. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $1,300.00, service provider Physiomax Recovery, OCF-18 dated September 25, 2013;
Ms. Guled is not entitled to interest for the overdue payment of benefits.
Expenses shall be payable. In the event that the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.

For Mr. Guled:

Mr. Guled is not entitled to Income Replacement Benefits of $400.00 per week from February 14, 2012 to February 7, 2014;
Mr. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $1,299.00, service provider Soft Touch Rehab Clinic, OCF-18 dated January 29, 2014;
Mr. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $415.00, service provider Soft Touch Rehab Clinic, OCF-18 dated October 30, 2013;
Mr. Guled is not entitled to $1,979.36 for the cost of a psychological assessment;
Mr. Guled is not entitled to interest for the overdue payment of benefits.
Expenses shall be payable. In the event that the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.

EVIDENCE AND ANALYSIS

BACKGROUND

The following information is not in dispute:

Ms. Guled is the mother of Mr. Guled. At the time of the accident the Applicants were 45 and 19 years old respectively.

The accident occurred while the Applicant’s vehicle was stopped at an intersection. Ms. Guled was driving as the automobile was struck from behind. Mr. Guled and a friend were passengers in the vehicle. The vehicle air bags did not deploy and the Applicants were able to exit the vehicle unaided. Emergency services did not attend at the scene. Ms. Guled drove to a Collision Reporting Centre following the accident.

Mr. Guled got out of his mother's car after the accident and attended the Collision Reporting Centre with his mother. He did not visit his family doctor until February 27, 2012, almost three weeks after the accident.

Ms. Guled filed an Application for Accident Benefits (OCF-1), dated February 16, 2012. The document was signed by her. On page 2 of the Application, there is a list of five children, with birthdates ranging from 3 to 12 years old, that Ms. Guled purportedly cared for at the time of the accident.

In the Application, however, Ms. Guled claimed Non-Earner Benefits. It was not until March 26, 2014, over two years following the accident, that Ms. Guled elected to receive Caregiver Benefits. Nevertheless, Personal accepted the change, notwithstanding s. 35 of the Schedule which states that elections of benefits are irrevocable.

With regard to Mr. Guled: the Insurer has paid medical benefits to the $3,500.00 limit pursuant to the Schedule’s Minor Injury Guideline.

WITNESS TESTIMONY

Ms. Sahra Guled – Applicant

The Applicant, Ms. Sahra Guled, provided testimony with the assistance of a translator.

Ms. Guled stated that prior to the accident, she was the full time, primary caregiver to 5 children, all of whom were under the age of 18 years old, and that she was the homemaker for her family. She testified that she attended to all of the cooking, cleaning, laundry, groceries, and all of the child-rearing tasks. It was also her testimony that after the accident, she found herself unable to care for those children, nor was she able to successfully complete any of the household tasks that she once undertook before the accident.

Ms. Guled testified that she suffered the following injuries: chest pain, lower abdominal pain, shoulder pain, and upper and lower back pain. She also stated she suffered from the following: headaches, dizziness, insomnia, nightmares, flashbacks, low energy, lack of motivation, irritability, short-temperedness, loss of confidence in her care giving abilities, and nausea.

Ms. Guled further testified that after realizing that she was unable to fulfill her day-to-day obligations to the children, along with having to complete the household chores required of her, she retained the services of Ms. Ayan Mohamed. Ms. Mohamed attended at her home six days per week for the first year and then five days per week for the second year. In exchange for her services, which included both caregiving and housekeeping responsibilities, Ms. Guled paid her approximately $10.00 an hour during the period of February 2012 to February 2014. Ms. Guled stated that, because of not being able to pay for the services that were provided to her and her family at the time, she offered Ms. Mohamed a promise to pay, which was subsequently accepted.

Ms. Guled was extensively cross-examined. I will deal with that part of her testimony, inter alia, below under the heading “KEY ISSUE: CREDIBILITY”.

Ms. Ayan Mohamed – Housekeeper and Caregiver

The witness identified herself at the Arbitration Hearing as Ms. Ayan Mohamed, although she was unable to provide any identification when requested by the Insurer, claiming she had not brought any with her.

Ms. Mohamed testified that she was hired by Ms. Guled to do housekeeping and caregiving tasks for the Guled family since Ms. Guled was no longer able to complete those tasks after the accident. Further, she stated that she had left her paid employment at a meat market to work for Ms. Guled. She testified that at the Market, she was paid $2,400.00 in cash every two weeks for 120 hours, which would amount to approximately $20.00 an hour. In cross-examination, Ms. Mohamed agreed that at that rate, her annual earnings would have been $62,400.00 a year.

She stated that she was duly qualified for the job Ms. Guled hired her for because she was trained as a personal support worker, and had completed a babysitting certificate course.

Ms. Mohamed testified that she was employed for six days a week for the first year following the accident from 7:00 a.m. to 8:00 p.m., and that her work week had been reduced to five days per week in February 2013.

In cross-examination, Ms. Mohamed confirmed that it was her testimony that she gave up her job to assist Ms. Guled for $10.00 an hour, on a promise of payment at a later unspecified date, contingent upon the insurance company paying Ms. Guled. The cross-examination continued as follows:

Q. Okay. And you were paid $2,400.00 every two weeks?

A. Yes. But I didn't work for a year.

Q. I see. But you - you didn't - you're not related to Ms. Guled, you've told us?

A. No, I'm not related to her.

Q. You're not related to her, and you're telling me that you left a job that was paying you $2,400.00 every two weeks to take a job for $10.00 an hour?

A. But, you know, you have to consider this, and how difficult that job was at the store, and then go to there, is how difficult is that. You have to go out and then wait for the bus when in the -when it is snowing, and go there and work at the store for that totally job…And then compare that with the one you get it in the same building and just go there and do a small job. So even if it is five dollars, this one, I would have preferred the one which is in my building. Because it is not saying I have it finished at 9:00. I have to finish it, and then after that come to my house, and it's not safe.

The witness further testified that in her view, the children that she cared for had a close and affectionate relationship with Ms. Guled, had referred to her as “Mom”, and had shared a mother-child relationship with her.

Ms. Michelle Fernandes – Insurer Investigator

Ms. Fernandes testified that Ms. Guled provided a statement to her in her capacity as a representative of the Insurer on May 7, 2012 (the “Statement”). The Statement was entered into evidence at the Arbitration Hearing. The Statement was taken between the hours of 10 a.m. and 12 p.m. at the law office of Laraia Nterekas, which was the firm representing Ms. Guled at that time.

Ms. Fernandes advised that the Statement was taken without an interpreter present. She related that there were no difficulties in taking Ms. Guled's statement in English. During the course of her employment in the insurance industry, she has had extensive dealings with many people whose first language was not English. She testified that it was her practice not to continue with an interview if there was any indication an individual needed a translator. Ms. Fernandes stated that as an immigrant woman of colour herself, whose first language was not English, she had been selected by her company to deal with sensitive cases, such as fatalities, because of her professionalism in interacting with people.

The witness conceded she had not made any notes, besides the actual statement, at the interview. However, she further testified that it was her standard practice to take a statement from the Insured and then to have their lawyer review it before it was signed, which she recalled was done in this case. She advised that she was well known at Laraia Nterekas and had been to that office many times before to take statements from their clients.

Mr. Ismail Guled – Applicant

Mr. Guled testified that before the accident, he worked part time as a store clerk, packing groceries, assisting customers, and keeping track of inventory. He stated that after the accident, he could not return to work because of the injuries he sustained. He advised that he lacked motivation to rise in the morning; he felt hopeless; he was sad and depressed; he lacked energy; he suffered from headaches, dizziness and nausea; he had become more irritable, short-tempered, and aggressive; suffered from insomnia; and wanted to isolate himself. He stated that even at the time of the Arbitration Hearing, he was still not completely recovered.

Mr. Guled testified that he worked approximately 20-30 hours a week, plus a number of additional volunteer hours for his employer. He further stated that he was paid a salary of $500.00 per week, in cash. However, he testified that he took time off from work for his studies, and for religious holidays, thus he did not work the entire 52 weeks per year.

Mr. Abdirazaq Mohamed – Employer of Mr. Ismail Guled

The final witness was Mr. Abdirazaq Mohamed. Although residing in Toronto, he testified via Skype, on the basis that a recent stroke had reduced his mobility. The witness also advised that he had a medical appointment later on in the Hearing day and hence would have to limit the amount of time he had to provide testimony.

Mr. Mohamed stated he was Mr. Guled’s employer at a retail grocery store for a few years prior to the accident. He further stated that he hired Mr. Ismail upon Ms. Guled’s recommendations. The witness testified that Mr. Guled was employed as a store clerk and that he did general tasks within the store such as packing and shelving food products, keeping track of inventory, and assisting customers. However, the witness provided no specific information about the physical demands of the job or the hours required.

Mr. Mohamed further testified that that he trusted Mr. Guled because he did good work for him in his store. He explained this was why he paid Mr. Guled significantly more than minimum wage.

Mr. Mohamed agreed that he did not sign Mr. Guled’s OCF-2 form, signed by the Applicant in September 2013, until February 2014. He explained the apparent delay by stating that the document had not been requested by Mr. Guled before that date.

When cross-examined about the nature of his relationship with Ms. Guled, Mr. Mohamed objected to the nature of the questions and abruptly closed the Skype connection before counsel for the Insurer could finish questioning him. The Insurer opted not to have the witness recalled on another day.

BURDEN OF PROOF

The Applicants bear the burden of proof to establish entitlement to a benefit under the Schedule. They also bear the burden of establishing the quantum of any benefits found to be owing.²

KEY ISSUE: CREDIBILITY

In my view, credibility is the central issue in this Arbitration. An evaluation of a witness’s credibility is pivotal in determining the ultimate question i.e., whether the evidence, viewed in its entirety, has sufficient quality and force to establish the legitimacy of the Applicant’s claims on a balance of probabilities.

One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny,³ the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witness, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.

The factors set out in that decision and the following non-exhaustive list of factors have informed my determinations on the credibility of witnesses in this case: their motives, their relationship to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence and my observations of the manner in which the witnesses gave their evidence. The following is an analysis of the credibility issues I have identified for each witness.

Ms. Sahra Guled

English Language Capabilities – Veracity of the Statement

Ms. Guled maintained throughout her testimony at the Hearing that she required the assistance of a translator. However, in my view, Ms. Fernandes gave straightforward testimony with respect to the interview that took place at Ms. Guled’s lawyer’s office, i.e. that the interview and resulting statement were done entirely in the English language. I find it extremely implausible that Ms. Guled would have allowed herself to be interviewed in a language she did not understand sufficiently, particularly given that the interview took place at her legal representative’s office. I also note that the statement taken by Ms. Fernandes was signed in two places by Ms. Guled after it was reviewed by her legal representative. In all the circumstances, I reject the Applicant’s submission that the information in the written Statement is incorrect due to “interpretation issues.”

I also agree with the Insurer’s submission that the fact that Ms. Guled had telephoned the insurance company prior to the accident and discussed, in unaided English, adding optional benefits to the automobile insurance policy is further evidence that she had some level of fluency in English.

Children

The Applicant provided information with respect to the names of the children who resided with her, their dates of birth, and custodial status in the Application, the Statement, in an Examination Under Oath (“EUO”) in November 2014, and at the Hearing. There were large discrepancies between these accounts. For example, there were incorrect dates of birth and inconsistencies in names. She agreed at the EUO to provide documentation showing that she had custody of her sister’s child whom she identified as residing with her. She has not done so. It appeared from her evidence at the Hearing that two of the children whom she had originally said were living with her, had stopped living with her in 2011, prior to the accident. In response to these inconsistencies, Ms. Guled stated at the Hearing that it was a “lawyer’s mistake”.

I also note that an Occupational Therapist, Ms. Nina Munir, visited Ms. Guled’s apartment in Toronto on April 28, 2012. Ms. Munir’s report was entered into evidence at the Hearing. The report notes, “no children were present during the assessment in order to observe Ms. Guled providing caregiver services. Ms. Guled’s adult 19-year-old son was present for a brief time.”

The Applicant first proffered photocopies of birth certificates during the course of the Hearing in breach of the disclosure requirements pursuant of the Dispute Resolution Practice Code. Even if I consider the documents as evidence, I give them little weight due to their unproven form and late submission. I also agree with the Insurer’s submission that, while the children may exist, that does not prove that they are Ms. Guled's biological children or that she cared for them before the accident.

OHIP Records

A Decoded OHIP Summary (“the OHIP Summary”) was entered into evidence at the Hearing. The Applicant did not contest its authenticity and it was part of a Joint Document Brief prepared by both parties.

There is no record of Ms. Guled giving birth on March 6, 2008, one of the dates of birth given by Ms. Guled with respect to her children, nor are there any entries for pre-natal appointments in the months before March 6, 2008. The OHIP Summary shows that on May 11, 2009 and July 21, 2009, she had appointments for fertility issues. There is no record of her giving birth on May 30, 2009, another child’s date of birth provided by Ms. Guled. There is no record of pre-natal or post-natal appointments in 2009. On November 26, 2009, there is an entry indicating treatment for infertility. There is no record of Ms. Guled having given birth on January 4, 2010, another birth date proffered by Ms. Guled. There is an entry for gastritis on January 27, 2010. In sum, the OHIP records, although showing Ms. Guled in Ontario, do not record Ms. Guled having given birth on the birth dates of the three youngest children listed on her Applications.

In the Hearing, when questioned about the OHIP Summary contradicting her testimony, Ms. Guled advised that somebody else used her OHIP card and that she did not even recognize some of the doctors’ names listed on the OHIP Summary. No evidence was presented to support Ms. Guled’s contention that somebody else had been using her OHIP card. No elaboration was provided with regard to whether the OHIP card had been stolen or was still in Ms. Guled’s possession. It appeared from Ms. Guled’s testimony that she had only become aware of the discrepancies vis-à-vis her evidence and the OHIP Summary during cross-examination at the Hearing. In the circumstances, I find Ms. Guled’s assertion of what would amount to fraudulent use of her OHIP card extremely difficult to believe and hence prefer the OHIP Summary as reflecting the true chronology of Ms. Guled’s medical treatment.

Residential Address

In the Self Reporting Collision Report at the time of the accident, Ms. Guled reported a Toronto residential address. On the Election Form that Ms. Guled signed in 2014, a second Toronto address is listed. At the EUO in November 2014, she indicated that she had been living at yet another address for about a year, i.e., that she had moved to the third address on or about November 2013, some 18 months post-accident. However, Ms. Mohamed’s evidence was that she provided her services at the second address, and did not indicate any other addresses where she provided services. No explanation was provided with regard to this discrepancy.

Ms. Guled testified that at the time of the accident, she was in the process of moving, and she was still using an old address. However, nothing was provided by the Applicant to substantiate this explanation. In the result, I am left in significant state of confusion as to when and where Ms. Guled resided at the various addresses cited.

Mother’s Death

On April 24, 2012, Ms. Guled was examined by Dr. Biswas on behalf of the Insurer. At page 2 of that report, it states that Ms. Guled's seventy-year-old mother had died of liver cancer 2 weeks prior to the examination. It further states that Ms. Guled’s mother had been living in England with one of Ms. Guled’s sisters. According to the Insurer’s adjuster log notes, entered as evidence at the Hearing, Ms. Guled's lawyer's office called Personal on April 13, 2012 and advised that Ms. Guled’s mother had passed away and that she would need to reschedule an Insurer Medical Examination. When confronted with the log notes in cross-examination at the Arbitration Hearing, Ms. Guled denied telling her lawyer that her mother had passed away.

In further cross-examination at the Arbitration Hearing, Ms. Guled acknowledged the following exchange at the EUO in November 2014:

Q. The other child that you said no longer lived with you was…who was born in 2006?

A: He is not with me at this moment, he is with my mother.

Q: Where is your mother?

A: Right now she is in Cairo, Egypt.

Q: Is that a permanent arrangement or are you expecting… to return to your care?

A: He will stay for good with my mother.

In response to this apparent contradiction, the Applicant argues that her lawyer, “must have confused her case with another matter, which could have resulted in the error.” Again, nothing further was provided by the Applicant to substantiate this explanation. I can only conclude that there is a further substantial contradiction apparent in Ms. Guled’s narrative.

Caregiver/Housekeeper

In her Statement, Ms. Guled clearly told Ms. Fernandes that an individual named Safya Ahmed, her cousin, assisted her with housekeeping and caregiving tasks following the accident. The passage of the Statement reads as follows:

I have a lady, Safya Ahmed,…who is helping me. She does everything that I did before the accident. She comes around [indecipherable] am. She drives her own car and drives the children to and from school. Her name is not on the school records as she does not go inside the school. She comes 7 days a week and leaves at 8-9 pm. She is my cousin. She is not a housekeeper by profession; she is a female and knows what to do. She was working as a PSW before about a year ago. She left her job to work for me. I do not know where she was working. I will ask her and let you know. Right now Ismail pays her but we owe her a lot more. I do not know how much Ismail pays her, he has paid her on 3 occasions. She is still helping me with housekeeping and taking care of my children ...

At the Arbitration Hearing, Ms. Guled denied that Ms. Ahmed was her cousin and said that she was her sister. The Applicant again offered no explanation for this glaring contradiction except to reiterate that little weight should be given to contents of the Statement because of Ms. Guled’s lack of English fluency.

Ms. Ayan Mohamed

Reduction in Income

Ms. Mohamed claimed that as she lived in the same apartment building as Ms. Guled, it was easier to assist her than to travel by bus to her employment. Ms. Mohamed gave no explanation as to why she would give up a $1,200.00 per week job for the promise of a future uncertain payment at less than half that amount. I find her testimony illogical and ultimately not believable.

According to the Application for Arbitration, Ms. Guled was claiming Non-Earner Benefits during the time when Ms. Mohamed was allegedly providing caregiving services. Ms. Guled did not change her election to receive Caregiver Benefits instead of Non-Earner Benefits until March 26, 2014. That Ms. Guled would promise to pay a caregiver some two years before electing to apply for Caregiver Benefits does, in my view, not seem credible.

Mr. Ismail Guled

Income Tax Return

Mr. Guled's 2011 Tax Return, entered into evidence at the Arbitration Hearing, was assessed on April 11, 2012, and showed T4 earnings of $1.00. Following the EUO in November 2014, his 2011 tax return was refiled and revised to show earnings of $20,298.00.

I agree with the Insurer’s submission that the refiling of the tax return after the EUO to show earnings well above the minimum wage casts doubt on the Applicant’s assertions with regard to his income at the time of the accident.

Pay Rate

At the Arbitration Hearing, Mr. Guled was asked if he started at minimum wage. His answer was, "most likely." Mr. Guled was asked at the EUO what he was earning in January 2012, which was the month before the accident. His response was, "To be honest I don't remember. That was almost three years ago.”

An Employer's Confirmation of Income, OCF-2, signed by Mr. Guled on September 18, 2013, was entered into evidence at the Hearing. It stated that he made $500.00 per week, paid in cash, in the 52 weeks before the accident, for a gross annual salary of $26,000.00. Mr. Guled’s evidence at the Hearing was that he worked 20-30 hours. He told the same thing to Dr. Lau at an Insurer Examination. Regardless of whether Mr. Guled was paid a “salary” of $500.00 per week, without having his exact working hours tracked, this still means that if he worked 20 hours a week he would have been making $25 an hour. Had he been working 30 hours a week, he would have been earning $16.66 an hour. I take notice of the fact that the minimum wage in Ontario in 2011 was $10.25 per hour.

The Applicant did not produce a Record of Employment, cheque stubs or bank statements to substantiate his claim with respect to the length of his employment, a description of his duties or the amount of his earnings.

Even given Mr. Mohamed’s testimony that, “he trusted Mr. Guled because he did good work for him in his store”, I am left in significant doubt as to the believability of Mr. Guled’s pay rate claims. Applying the test in Faryna v. Chorny,⁴ I find that Mr. Guled’s testimony with regard to his pay rate is not in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

Mr. Abdirazaq Mohamed

Pay Rate

As noted above, I find Mr. Mohamed’s explanation for paying Mr. Guled $500.00 per week less than convincing.

Relationship to Ms. Sahra Guled

I note that at the time Ms. Guled underwent infertility surgery at a Toronto Hospital in June 2012, admission records list Mohamed Abdirazaq as the emergency contact on the admission form with a phone number. The same telephone number appears on the Employer’s Confirmation of Income as that of the grocery store where Mr. Guled allegedly worked. I further note that in February 2012, Mr. Mohamed Abdirazaq is again listed as Ms. Guled's emergency contact with the same telephone number. On that date, Ms. Guled was admitted to hospital with a complaint of migraine headaches. In cross-examination at the Hearing, Ms. Guled also acknowledged that she and Mr. Mohamed are named on insurance policies together. Ms. Guled admitted in cross-examination to driving a car that is owned by Mr. Mohamed.

In sum, I agree with the Insurer’s argument in its written submissions that, “Mr. Mohamed, was a friend or possibly even the husband of the Sahra Guled. The relationship, although never fully explained, makes the purported employment situation a non-arm's length arrangement”. Given his apparent relationship to Ms. Guled, and the evasive manner in which the Mr. Mohammed delivered his testimony (especially with regard to that relationship), I find I can give little or no weight to his evidence.

THE CLAIMS

Ms. Guled

Caregiver Benefits

Section 13 of the Schedule sets out the test for Caregiver Benefits. The following definition found in Section 3 is also relevant: “[a] ‘person in need of care’ means, in respect of an insured person, another person who is under 16 years of age or who requires care because of physical or mental incapacity”. Therefore, to succeed with her claim for Caregiver Benefits, Ms. Guled must, inter alia, prove that pursuant to the Schedule, that she was the primary caregiver to children under the age of 16 who resided with her prior to the accident.

The closing submissions of the Applicant suggest that the various evidential inconsistencies with regard to the children noted above were due to Ms. Guled’s lack of English language ability and her becoming nervous and forgetful. Although some measure of leeway must be afforded to a witness with regard to nervousness and memory issues, I find that, as the above discussion reveals, the blatant lack of internal consistency of Ms. Guled’s evidence can only lead me to conclude that she has not met her onus of proving, on a balance of probabilities, that there were children under her care at the time of the accident.

The claim for Caregiver Benefits is therefore dismissed.

Housekeeping and Home Maintenance Benefits

To prove her claim for Housekeeping and Home Maintenance Benefits, Ms. Guled must prove that she was unable to perform her pre-accident tasks as a result of the accident and that expenses were incurred in paying a provider.

The Applicant made no written submissions with regard to this part of her claim. Given the extreme credibility issues elucidated above, in my view Ms. Guled did not succeed in proving her claims. The documentary evidence that she provided to Personal and her testimony at the Arbitration were so inconsistent that there is no foundation upon which to make a finding of entitlement to any Housekeeping and Home Maintenance Benefits.

The claim for Housekeeping and Home Maintenance Benefits is therefore dismissed.

Medical and Rehabilitation Benefits

Section 15 of the Schedule provides that, “(1)…medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident…”.

The Applicant made no written submissions with regard to this part of her claim.

Ms. Guled was examined by Dr. Tansey (orthopaedic specialist) and Dr. Tepperman (physiatrist) in the spring of 2012. Ms. Guled related to Dr. Tepperman that she had a "fracture of her left ankle." He noted that she did not appear to have related this to Dr. Tansey who had examined her earlier. Personal had Ms. Guled assessed by Dr. Koepfler (psychologist) in the autumn of 2012, who noted that Ms. Guled related that she "reported no other health problems and no surgeries." This was in contrast to the numerous non-accident related health issues that are documented in her OHIP and medical records and the hospital records of post-accident infertility surgery in June 2012.

Personal submits that it responded to Ms. Guled's claims appropriately and provided her with treatment where warranted. Its denials were based on sound medical reports. I agree. The Applicant provided no documentary evidence, aside from the minimal information provided in the OCF-18s (Treatment and Assessment Plans), to substantiate her claims. I therefore find that, on a balance of probabilities, there is insufficient evidence demonstrating that the requested treatment is reasonable and necessary pursuant to the Schedule.

The claim for Medical and Rehabilitation Benefits is therefore dismissed.

Mr. Guled

Income Replacement Benefits

In my view, the evidential gaps and inconsistencies noted above severely undermine Mr. Guled’s claim for Income Replacement Benefits. I agree with the Insurer that, “the evidence presented to show that Mr. Guled in fact had a job before the accident was not convincing. Mr. Guled could not remember when he started the job. He did not present a Record of Employment, [or] a schedule with his hours and described the job in general terms without convincing details”. I also disbelieve the Applicant’s claim that he was earning salary of $500.00 a week, paid in cash, at the time of the accident.

The claim for Income Replacement Benefits is therefore dismissed.

Medical and Rehabilitative Benefits and Cost of an Examination

As noted above, the applicable section of the Schedule provides that Medical Benefits shall be payable if they are reasonable and necessary.

The Applicant made no written submissions with regard to this part of his claim.

In its written submissions the Insurer stands by the medical reports that it filed from Dr. Lau, Psychologist, and Dr. Belfon, a General Practitioner, both of which found that Mr. Guled's injuries fell within the Schedule’s Minor Injury Guideline. I agree with Personal that there was no evidence that rebutted these reports at the Hearing. Since Mr. Guled has already been provided with benefits to the limit of the $3,500.00 Minor Injury Guideline ceiling, he is not entitled to further treatment.

The claim for Medical and Rehabilitative Benefits and the Cost of an Examination is therefore dismissed.

EXPENSES:

Expenses shall be payable. I leave to the parties to mutually agree upon an appropriate quantum. Pursuant to the Arbitration Order accompanying this decision, I will remain seized with regard to the quantum of the expenses payable if the parties are unable to agree.

October 3, 2016

Alan G. Smith Arbitrator

ARBITRATION ORDER

Under section 283 of Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

For Ms. Sahra Guled:

Ms. Guled is not entitled to Caregiver Benefits of $400.00 per week from February 7, 2012 to July 31, 2013;
Ms. Guled is not entitled to Housekeeping and Home Maintenance Benefits from February 7, 2012 to July 31, 2013, in the total amount of $8,000.00;
Ms. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $2,200.00, service provider Soft Touch Rehab Clinic, OCF-18 dated October 30, 2013;
Ms. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $1,300.80, service provider Soft Touch Rehab Clinic, OCF-18 dated December 18, 2013;
Ms. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $1,300.00, service provider Physiomax Recovery, OCF-18 dated September 25, 2013;
Expenses shall be payable. In the event that the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.
Ms. Guled is not entitled to interest for the overdue payment of benefits.

For Mr. Ismail Guled:

Mr. Guled is not entitled to Income Replacement Benefits of $400.00 per week from February 14, 2012 to February 7, 2014;
Mr. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $1,299.00, service provider Soft Touch Rehab Clinic, OCF-18 dated January 29, 2014;
Mr. Guled is not entitled to Medical and Rehabilitation Benefits in the amount of $415.00, service provider Soft Touch Rehab Clinic, OCF-18 dated October 30, 2013;
Mr. Guled is not entitled to $1,979.36 for the cost of a psychological assessment;
Mr. Guled is not entitled to interest for the overdue payment of benefits.
Expenses shall be payable. In the event that the parties cannot come to an agreement on the matter of expenses, either party may request in writing an appointment before me to determine expenses, provided the request is made within 30 days from the date the decision on all other issues in dispute was issued.