Neutral Citation: 2018 ONFSCDRS 20 FSCO A12-002657

BETWEEN:

MARK BAKIR Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY Insurer

Before: Arbitrator Jeff Musson

Heard: In person in Hamilton on July 10, August 1, 2, 29-31, November 15-17, and December 21, 2017

Appearances: Ms. Samia Alam, Mr. Matt Cino and Ms. Jade Borne, licensed paralegal for Mr. Mark Bakir Ms. Lisa Pool for Dominion of Canada General Insurance Company

Issues:

The Applicant, Mr. Mark Bakir, was injured in a motor vehicle accident on September 22, 2011. He applied for statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mr. Bakir, through his 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:

Is Mr. Bakir entitled to income replacement benefits from September 29, 2011 to September 22, 2013 less post-accident income?
Is Mr. Bakir entitled to income replacement benefits from September 23, 2013 to date and ongoing less post-accident income?
Is Mr. Bakir entitled to attendant care benefits in the amount of $6,000.00 per month from October 26, 2011 to date and ongoing?
Is Mr. Bakir entitled to housekeeping and home maintenance benefits in the amount of $100 per week from September 22, 2011 to date and ongoing?
Is Mr. Bakir entitled to interest for the overdue payment of benefits?
Is either party liable to pay the other party’s expenses in respect of the arbitration?

Result:

Mr. Bakir is entitled to income replacement benefits from September 29, 2011 to September 22, 2013, less post-accident income. If the parties are unable to agree to the quantum of income replacement benefits to which the Applicant is entitled, the parties can request a subsequent Hearing in order to make submissions specific to the issue of income replacement benefit quantum.
Mr. Bakir is not entitled to income replacement benefits from September 23, 2013 and ongoing less post-accident income and this claim is dismissed.
Mr. Bakir is entitled to attendant care benefits in the amount of $6,000.00 per month from October 26, 2011 to May 4, 2012 and then $687.24 per month from May 5, 2012 until September 25, 2012.
Mr. Bakir is entitled to housekeeping and home maintenance benefits in the amount of $100 per week from September 22, 2011 to date and ongoing.
Mr. Bakir is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an Expense Hearing with me for determination of the same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

MOTION: JULY 10, 2017

The following were the orders requested in a motion at the Hearing by the Applicant:

An adjournment of this Arbitration Hearing scheduled for July 10-12, 2017.
In the alternative, an Order removing Bartolini Berlingieri Barrafato Fortino LLP as solicitors of record.
Such further and other relief as counsel may advise and this tribunal may deem just.

At the start of the Hearing, Applicant’s counsel put forward a motion requesting an adjournment in order to ask the courts to provide a litigation guardian for the Applicant. Although the Applicant and his counsel are still communicating, Applicant’s counsel is of the opinion that the Applicant is not able to properly make decisions as they relate to his case and as a result wants the courts to appoint a litigation guardian.

Evidence was submitted showing that Dr. Diana Velikonja from Storrie, Velikonja and Associates completed the cognitive competency assessment on the Applicant. The purpose was to determine the degree of mental soundness that the Applicant has in order to make decisions about specific issues or carry out a specific act. Applicant’s counsel requested this assessment and it was completed on February 17 and 22, 2017. They requested a formal assessment of the Applicant’s cognitive and psychological functioning as it pertained to his competency to instruct legal counsel.

The competency testing was completed in a single four-hour session as part of the evaluation of the Applicant. It was noted that the Applicant’s verbal comprehension and expressive speech were essentially intact. The assessment concluded that the Applicant understood both simple and complex instructions. Validity indicators showed the results from the Applicant are reliable and presented a valid representation of his cognitive abilities and affective status. The conclusion from the in-depth 14 page report stated that the Applicant’s current performance suggests that the Applicant possesses the necessary cognitive skills to be deemed competent to instruct his legal counsel.

I asked Applicant’s counsel if there were any factors which would have changed the findings since the assessment was completed approximately five months prior. Applicant’s counsel replied that other than the stress of preparing for the Hearing, there were no other factors/incidents which would change the conclusion of the report.

Ruling on the Motions

After analyzing the evidence, I denied the request for adjournment. In addition, Applicant’s counsel confirmed that they are still in contact with their client. As a result, they have a duty to represent their client and their motion to be removed as counsel of record was also denied.

It should be noted that prior to the resumption of the Arbitration Hearing on August 1, 2017, the Applicant’s sister was appointed as the Applicant’s litigation guardian and the matter proceeded accordingly.

PRELIMINARY ISSUE RAISED BY THE INSURER:

The Insurer raised as a preliminary issue pursuant to Section 31(1) (a) (i) that the Applicant is precluded from claiming income replacement benefits and housekeeping/home maintenance benefits because he was not insured at the time of the accident.

BACKGROUND

The Applicant was 24 years old when he was involved in a motor vehicle accident (“MVA”) on September 22, 2011 while riding his motorcycle. He was hit sideways by another vehicle. The Applicant was thrown from his motorcycle and the impact caused him to land several feet away from where the collision occurred. The impact of the collision caused the Applicant’s helmet to come off his head. When the Applicant hit the ground, his head and spine sustained the brunt of the fall. Ambulance and first responders attended the scene. The Applicant was admitted to Hamilton General Hospital where he was placed in a medically induced coma. When he awoke, he had a period of retrograde amnesia.

In terms of physical injuries as a result of the MVA, the Applicant suffered a serious skull fracture, numerous broken bones including a displaced lower spine fracture and mandibular fracture, along with forearm and femur fractures. While in the hospital, the Applicant underwent numerous surgeries as part of his recovery and rehabilitation. The Applicant was discharged from the hospital on October 25, 2011 and he continued his recovery at his parents’ residence. He has had the same legal representatives since the MVA. It was also noted that the Applicant had exhausted his medical rehabilitation limits by the middle of 2014. The Applicant is currently receiving Ontario Works assistance of $700 per month.

The Applicant – Mark Bakir

The Applicant testified that he doesn’t remember the accident. He has seen pictures of the accident scene and pictures of himself in the hospital, but he had no direct memory of the events. Having said that, he was able to answer questions related to his life both pre- and post-accident.

He testified that he was a very socially engaged person pre-accident. He had many hobbies, including working on cars and motorcycles. The Applicant testified that pre-accident, he had expensive tastes and accumulated numerous credit card bills. He purchased high end furniture and electronics. The Applicant testified that he purchased groceries and other day-to-day living expenses. He also had ongoing bills related to his Range Rover and BMW. The Applicant purchased his customized motorcycle approximately a year prior to the MVA. The Applicant paid $8,000 cash for the motorcycle that was sold privately. He testified that since the accident, his high flying lifestyle has been greatly downsized.

The Applicant stated that after he purchased his motorcycle, he also purchased insurance in order to have the motorcycle registered and plated with the Ministry of Transportation. He stated that the insurance for his motorcycle was purchased from a person who sold motorcycle insurance to people from his motorcycle group.

The Applicant said he bought the motorcycle insurance from a person named Hayden, but couldn’t remember his last name. He testified that he trusted this individual because he was referred to Hayden by others in the motorcycle group/meetup. He stated that he paid Hayden in cash and was then given the pink insurance slip for his motorcycle. The Applicant gave evidence that he did not contact any other insurance company or broker. He felt that the amount that Hayden was charging him for insurance was within the Applicant’s budget; so there was no need to shop the rate around. When the Applicant received a pink slip after paying for the motorcycle insurance, he had no reason to suspect that he had just became the victim of insurance fraud. The Applicant listed his parents’ address for his insurance even though he was not living at their residence.

After purchasing insurance, the Applicant testified that he was stopped by police a couple of times. On both occasions when he was stopped, he had to produce his insurance pink slip to the officers. He testified that neither officer questioned the validity of the Applicant’s insurance. Further, the Applicant gave evidence that neither officer issued a ticket to the Applicant for not having valid insurance. The Applicant testified that he believed that he had insurance coverage for his motorcycle and was shocked to learn that he was a victim of insurance fraud.

As was stated previous, the Applicant couldn’t recall details of the accident, so he testified as to details about his medical rehabilitation to the best of his ability. In terms of his medical injuries, the Applicant testified that he had numerous therapy sessions after being discharged from the hospital. He also stated that he was prescribed numerous medications to control his pain. The Applicant was also diagnosed with depression, anxiety, pain disorder and cognitive disorder post-accident. This was a direct result of his traumatic brain injury from the MVA.

The Applicant confirmed that he was applying for income replacement benefits, attendant care benefits and housekeeping/home maintenance benefits with this case. The Applicant was asked why he did not attend the Insurer’s Examination with respect to his claim for income replacement benefits in 2014. He was not able to answer. He hypothesized that his reason for not attending might have been due to the fact he was unaware that the assessment was to take place. He testified that he had a bad habit of not opening his mail because of the sheer volume of bill collectors looking to collect money from him. The Applicant testified that he avoided all mail service because it stressed him out.

From a work perspective, the Applicant testified that he had worked at Highland Packers for 3-4 years prior to the MVA. He had only recently quit this job just before the accident in order to work at a better paying job for a demolition company. He stated that this demolition company job was short-lived because he was injured in the MVA. The Applicant was asked why his letter from Highland Packers gave a different reason for him leaving the company.² He said he had no recollection as to why the letter didn’t reflect the reason he testified to for leaving the job.

The Applicant stated that since the MVA, he has had trouble holding down various jobs. He has tried numerous times to work, however, all attempts to return to work have been unsuccessful. He also stated that any income that he did generate was reported on his personal income tax return as T4 income. The Applicant testified that there were three jobs that he attempted to do post-accident. One of the jobs was as a truck driver at Metro Freightliner. Another job was at a company called Roseland as a general labourer. The third return to work attempt was at a company called Arca. He testified that he left this job because of the lack of work hours and financial stability.

When he was asked about the attendant care that he required post-accident, he had no recollection in terms of when the Insurer’s attendant care assessments took place. He also had no recollection as to when he was able to start to look after his personal care needs after the MVA. The Applicant was asked why he didn’t attend the attendant care Insurer’s Examination in 2012. He could not explain why five years ago he did not attend.

The evidence showed that the Applicant had a rather extensive presence on social media, specifically Facebook. When questioned by the Insurer as to why his testimony was contradicting the pictures that he posted on Facebook, the Applicant became quite agitated. He also denied that some of the pictures were of him and also testified that he had a few online aliases. Some of the pictures were of him riding his motorcycle while others were of him on vacation.

The Applicant testified that he has tried his best to recover from the injuries sustained from the MVA. He now lives independently. He has a valid driver’s licence and his motorcycle has been repaired. The Applicant has tried to return to some semblance of a normal life, but it’s been a daily struggle.

Mr. Rawand Bakir

Rawand is the Applicant’s 29 year old brother. He testified about the Applicant’s life both pre- and post-accident. He testified that he dropped out of school in order to provide care for his brother, the Applicant, after the MVA. When asked if he had any proof showing that he dropped out of school or that he suffered an economic loss as a result of care that he was providing his brother, he said that it set him back financially since he had to repay his OSAP (Ontario Student Assistance Program) loan on the college courses he dropped as a result of caring for his brother.

Rawand testified that he has not worked since he was enrolled in college. He was enrolled in college prior to his brother’s accident. When asked about the Applicant’s life now, he testified that the Applicant doesn’t go on vacations as regularly as he once did. Rawand was also asked about support he gave the Applicant during recovery. He said that he cared for his brother’s dogs, assisted him with his attendant care needs and did whatever he needed to do to help him recover. When asked if his brother said anything about repaying him, he said that his brother told him if he received money he would compensate him, his sister and parents.

There were some inconsistencies with Rawand’s testimony, but for the most part the inconsistencies related to details which were more commentary in nature. The important details related to Rawand’s testimony were confirmed by other evidence presented at the Hearing. I did not get the impression nor was it supported by any evidence that Rawand was purposely trying to mislead this Tribunal.

Mr. Rafek Bakir

Mr. Rafek Bakir is the Applicant’s father and he testified at the Hearing. He was asked if he knew any details related to the Applicant’s motorcycle insurance. Rafek stated that he did not purchase the Applicant’s motorcycle insurance and in fact the only insurance that he ever purchased on behalf of the Applicant was when he purchased insurance for the Applicant’s car at the time which was a few years prior to the accident.

Rafek confirmed that the Applicant was moved into the family residence in order to recover once he was discharged from the hospital. He was asked to describe his son’s life prior to the accident. Rafek testified that his son was active and had many friends. He was a proud father because his son was raised to help others whenever he could and that’s how the Applicant led his life pre-accident. Post-accident, his son’s life has been adversely affected.

Ms. Pakshan Zaid

Pakshan Zaid is the Applicant’s mother. She was asked about the Applicant’s motorcycle insurance. She testified that she believed her son when he told her that he had insurance on his motorcycle. Prior to the MVA, she testified that the Applicant led a normal life. Since he was the oldest male child, the Applicant was the person in the family that everyone relied on. As an example, the Applicant would help her and his father fill out forms in English that were related to everyday living in Canada since they were immigrants and had trouble understanding. Further she testified that the Applicant was self-sufficient when it came to his finances prior to the MVA, however, post-accident, this all changed.

When asked about the Applicant’s work history, Pakshan testified that she knew the Applicant stopped working at Highland Packers but did not know the reason why he left. She was also asked about the attendant care provided to the Applicant when he was discharged from the hospital. She testified that she never kept a log nor did she keep track of the tasks or hours that she provided attendant care services to her son. She testified to the tasks she completed as one of the Applicant’s caregivers. She testified that, post-accident, the Applicant suffered greatly with his injuries and it’s been a long recovery process.

Ms. Roza Bakir

Roza Bakir is the married sister of the Applicant. She described the Applicant in very glowing terms. Roza described the Applicant as the rock and foundation of the family. He had a very active social life. She testified that her brother was a smart, hardworking individual.

Roza gave evidence that she was attending Brock University from 2009 until 2012. Even though she was attending school in St. Catharines, she testified that she came back and forth to Hamilton a lot throughout the school year and resided in Hamilton in the summer. Roza testified that she helped the Applicant with his attendant care requirements post-accident. She confirmed that she did not keep track of the hours, tasks or other details related to the care that she was providing. She did what needed to be done to help with the Applicant’s recovery.

She testified that she delayed starting a new job at a day care facility because of the Applicant’s accident and the need for her to provide him attendant care services. She stated that when she did start this new job, it was only on a part-time basis as opposed to full-time because again, she needed to take care of the Applicant. She also testified that she was on the supply list to teach school, but had to pass on taking a number of jobs in order to care for her brother. She said that she still has to help the Applicant by cooking him food, making sure his apartment is clean, doing his laundry and making sure he pays his bills as well as making sure he shows up for his appointments on time.

Dr. Velikonja

There were over 6 hours of assessments conducted on the Applicant by Dr. Velikonja as well as her colleague, Dr. Goldfinger. Dr. Velikonja, the Applicant’s neuropsychologist, was called to testify as to the ability of the Applicant to instruct counsel and give evidence. As part of her testimony, she stated that with the MVA, the Applicant suffered numerous physical and psychological injuries including a significant skull fracture. Based on her experience, injuries such as this cause individuals cognitive impairments, difficulty with attention, memory issues as well as other psychological issues.

Dr. Velikonja testified that the Applicant became overwhelmed, frustrated and emotional during his assessment. She also opined that he had minimum cognitive ability. This among other things would cause the Applicant difficulty in processing information, making informed decisions as well as understanding the ramification of decisions. As an example, this would cause the Applicant problems instructing counsel and restrict his ability to understand information that they tell him.

Dr. Velikonja testified that the Applicant’s capacity fluctuates greatly when the Applicant feels stressed. In order to cope with stressful situations, the Applicant defaults to an avoidance behaviour and withdraws from stressful interactions. Dr. Velikonja testified that the Applicant suffers from a major depressive disorder.

Dr. Unsal

Dr. Unsal is another neuropsychologist who testified on behalf of the Applicant. She stated that her assessment of the Applicant took a total of about 8 hours. As part of this assessment she also conducted collateral interviews. She testified that as part of her report, she includes the Applicant’s subjective reporting to her. In addition, Dr. Unsal also conducted a paper review of prior assessments conducted by other individuals.

With her preliminary findings from the assessment, she found the Applicant to have lower than average functioning and verbal skills. She also noted the Applicant had memory related issues. She found the Applicant to have weak reading and writing skills. She also testified that she found the Applicant to suffer from reduced executive functioning, limited attention and a poor ability to focus on tasks. The assessment was completed in 2013 and the actual report was written on January 27, 2014.³

Dr. Unsal testified that she had an opportunity to review Dr. Velikonja’s report. She testified that Dr. Velikonja’s conclusions in her report were consistent with the conclusions that she came to in her report. She stated that the Applicant cannot support himself. He has trouble maintaining relationships as well as interacting with people. Since there was a time lag between both reports, Dr. Unsal testified that since both reports have come to similar conclusions over a period of time, the Applicant’s condition could be considered chronic in nature. Further, she concluded that the Applicant will not be able to return to his pre-accident level of functioning, social interaction or employment. As a result, the prognosis related to the Applicant’s ability to sustain employment is poor at best.

Dr. Unsal concluded that the Applicant suffers from executive dysfunction which is apparent with his lack of emotional control, reduced functioning, minimal attention control and a severely reduced working memory function. Due to the fact that the Applicant suffers from executive dysfunction, it affects the Applicant’s activities of daily living. Ultimately, she diagnosed the Applicant with an adjustment disorder along with mixed anxiety and depressed mood. It was also concluded that the Applicant suffers from a pain disorder with psychological factors as well as a cognitive disorder due to his traumatic brain injury. Dr. Unsal testified that all of these symptoms can be directly attributed to the injuries he suffered from as a result of the MVA on September 22, 2011.

ANALYSIS – PRELIMINARY ISSUE

The Insurer has put forward the position that the Applicant did not have valid insurance at the time of the accident and therefore the Applicant should be found to be non-compliant with section 31 of the Schedule.⁴ As the driver of his motorcycle at the time of the accident, did the Applicant know or ought he to have reasonably known that he was operating his motorcycle while it was not insured under a motor vehicle liability policy?

It has been established through case law that the Insurer has the burden to prove that the Applicant knew or ought reasonably to have known that he was not insured at the time of his accident. As has been stated in other decisions, the evidence must show, on a balance of probabilities, that an ordinary person should have known that they were driving their vehicle without insurance.

When reviewing the case of Nwakwesi and Security National, Arbitrator Wacyk commented on the term “ought reasonably to have known”. She concluded that the term “ought reasonably to have known” refers to what a reasonable person, given the information of which the Applicant was aware, could reasonably be expected to understand, or know, from that information. It is not what a reasonable person would have done to inform him or herself.⁵

In the case before me, the Applicant failed to produce independent witnesses to attest to his version of events as it related to his purchase of insurance. Further, since the onus is on the Insurer, it also failed to produce independent witnesses to show that the Applicant knew or ought to have known that he didn’t have valid insurance. In Aksoy and Markel Insurance,⁶ the Applicant allegedly paid his insurance broker cash for his insurance policy similar to the Applicant in the case before me. With the Aksoy and Markel Insurance case, Arbitrator Sampliner found it was not unreasonable for the Applicant to not ask for payment documentation from his broker because he trusted him. He accepted the Applicant did not know his policy was cancelled at the time of the accident. The same can be said about the case heard before me.

In the case of Smith and Aviva Canada Inc.,⁷ the Insurer denied coverage because the alleged insurance policy was purchased through a cash and barter system from an individual who was a customer of the applicant’s (in his smoke shop). The Applicant did not know the man’s name and had no contact information for him; there was no firm arrangement in place between them and all of the arrangements happened by chance. In addition, the Applicant never received a copy of the insurance policy. The Applicant testified that cash and barter for services is a way of life which was similar to the testimony given by the Applicant in the case before. Arbitrator Mills found the applicant in Smith and Aviva Canada Inc. was not precluded from receiving accident benefits under s. 31 of the Schedule.

In the case before me, the Applicant produced a copy of his insurance slip. Other than a noted spelling mistake, the insurance slip looked legitimate. The slip lists a real broker and a real insurance company. The Applicant’s name is listed on the slip as well as his address, the make, model and year of the motorcycle as well as the motorcycle VIN. There is also an issue and expiry date. Further, the Applicant tendered evidence that the motorcycle was licensed and plated which would have required the Applicant to show “proof of insurance from an insurance provider licensed in Ontario”⁸ to the Ministry of Transportation in order to register his motorcycle as well as get a permit and licence plate. We know from the evidence provided that no one is questioning if the Applicant’s motorcycle at the time of the MVA was legally plated.

The Applicant also produced evidence that since the time he purchased the insurance for his motorcycle, he was stopped by the police at least twice, once in Port Dover and once in downtown Hamilton. During both of these traffic stops, the Applicant was asked to produce his insurance slip which he did. Both times, the police accepted the insurance slip as legitimate and the Applicant was never issued a ticket for failure to produce or driving without valid insurance.

Ultimately, the question is whether the fact that the Applicant paid cash for his insurance policy without getting a receipt meets the test that “the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy”. In addition, as the Applicant’s counsel stated, “the Applicant’s insurance slip passed through the eyes of authorities. It passed through the eyes of well-trained individuals from the Ministry of Transportation when licensing the motorcycle. It passed through the eyes of other rational laypersons who have all bought insurance. All of these individuals never questioned the legitimacy of the Applicant’s insurance slip. Therefore why would the Applicant question the validity of his insurance?”

Based on the evidence presented at the Hearing, I am of the opinion that on the balance of probabilities, the Applicant believed that he had purchased a legitimate insurance policy for his motorcycle. Therefore, I am dismissing this preliminary motion by the Insurer and ruling that the Applicant is not precluded from claiming income replacement benefits and housekeeping/home maintenance benefits pursuant to Section 31(1)(a)(i) of the Schedule.

ANALYSIS – ISSUES IN DISPUTE

The onus is on the Applicant to prove entitlement to the benefits in dispute. The evidence presented at the Hearing shows that the Applicant suffered serious injuries as a result of the MVA including a serious skull fracture and related traumatic brain injury. It was apparent at the Hearing that the Applicant struggled to recall details surrounding the MVA. He had difficulty remembering information and events, which demonstrated loss of memory. At no time during the Hearing was the impression given by the Applicant that he was attempting to mislead the Commission or purposely avoid giving details to questions asked.

The Applicant had two doctors testify at the Hearing, Drs. Velikonja & Unsal, as well as four lay witnesses. The Insurer chose not to call any witnesses and instead relied upon documentary evidence. In addition, the Applicant submitted documented reports as part of his evidence, specifically reports from Drs. Vitelli and Zakzanis.⁹ The Applicant submitted two disability certificates (OCF-3s) which identified the injuries he suffered as a result of the MVA. The first certificate was dated October 13, 2011¹⁰ and the second certificate was dated January 4, 2012.¹¹ The Applicant also submitted his OCF-1 on November 16, 2011.¹² His OCF-2 was submitted on November 16, 2011 as well.¹³

INCOME REPLACEMENT BENEFITS

Since I have determined that the Applicant did not contravene Section 31 of the Schedule, he is therefore able to submit a claim for income replacement benefits (“IRBs”). The Applicant is claiming entitlement to both pre- and post-104 IRBs. In order for an Applicant to successfully claim IRBs, there are two issues that must be addressed. First, from a medical perspective, do the Applicant’s injuries provide him with either a substantial or a complete inability to work? Second, if from a medical perspective an Applicant qualifies for IRBs, does the Applicant then, from a quantum perspective, qualify for IRBs? Neither party calculated the quantum of the Applicant’s IRBs. Therefore the issue at this Hearing focuses on the Applicant meeting the medical test for both pre-104 and post-104 IRBs.

Prior to the accident, the Applicant had just started a new job working for a demolition company and he testified that he was making approximately $20.00 per hour. This was a relatively new job (within 2 weeks prior to the accident). Prior to this demolition job, the Applicant was working at Highland Packers for approximately 3 to 4 years. The Applicant’s highest level of education attained is a high school diploma.

The Applicant was released from the hospital on October 25, 2011 at which point he spent considerable time recovering at his parents’ residence. The Applicant required the use of assistive devices at his parents’ home in order to further his rehabilitation. He testified and it was confirmed by all family members that the Applicant was not working while he was going through his rehabilitation program. As the Applicant’s recovery was progressing he did attempt to return to some employment but it always ended unsuccessfully. The evidence showed physical and psychological injuries from the MVA were causing the Applicant issues at these various jobs and he would ultimately end up quitting.

Pre-104 IRB Test

In the Schedule, the pre-104 entitlement to IRBs is defined in the Schedule under Section 5(1).¹⁴ In order to answer the first question in Section 5(1) in the affirmative; Was the Applicant employed at the time the accident or employed for at least 26 of the 52 weeks preceding the accident? The answer to this question based on the evidence is yes. Even though the Applicant stopped working at Highland Packers on September 5, 2011 and the accident occurred on September 22, 2011, there is evidence entered at the Hearing that shows that the Applicant was employed at Highland Packers at least 26 weeks during the 52 weeks prior to the accident.¹⁵ Based on the information provided, the Insurer agrees with this statement. As a result, the Insurer stated that this fact could potentially qualify the Applicant for IRBs if he can prove entitlement.

The second question from Section 5(1) is, “Has the Applicant sustained an impairment as a result of the accident?” With the filing of the two OCF-3s in October of 2011 and January of 2012, the answer is yes, the Applicant has sustained an impairment as a result of the MVA. Further, the evidence submitted throughout the Hearing shows overwhelmingly that the Applicant’s injuries are a direct result of the motorcycle accident.

The third part from Section 5(1) states that from a medical perspective, the Applicant must prove that on the balance of probabilities, the injuries that he suffered as a result of his MVA provide a substantial inability for him to perform the essential tasks of his pre-accident employment. Although the Applicant did not provide a formal report detailing the cognitive or physical requirements for the various parts of his job, from the Applicant’s testimony, it was easy to understand that the jobs that he worked at could be best classified as “general labour/delivery trucker driver”. The Applicant testified that he has not completed further education beyond high school. He also stated that the injuries he sustained because of the MVA and corroborated with the medical evidence have affected his memory, communication skills, along with physical movements such as standing, lifting, walking, kneeling and crouching. All of these attributes are requirements for any general labour position. It was a general labourer’s type of work for which he was qualified and was doing pre-accident. The evidence shows that his injuries have caused him a substantial inability to perform the essentials tasks of this pre-accident employment. Dr. Unsal’s report stated that the prognosis related to the Applicant’s ability to sustain employment is poor at best.

The Insurer made submissions that in the absence of the Applicant’s pre-accident employment tasks, how is the Insurer, or the Arbitrator, to know when the Applicant recovered enough to be able to perform those tasks? This is a valid point except for the fact that the Applicant’s injuries were so severe that the basic work and communication skills which form the foundation of virtually any employment are difficult for the Applicant to attain. Some of these necessary skills include the Applicant being able to wake up on time to go to work, remembering simple tasks to complete and being able to control his emotions and focus on the task at hand. The Applicant and all of his witnesses testified that the Applicant was not able to do any of these tasks properly post-accident.

Post-104 IRBs

In order to qualify for post-104 IRBs, the Applicant must prove that because of his injuries, he is unable to engage in any employment for which he is reasonably suited by education, training or experience. The post-104 IRB test is defined in Section 6(2) (b) of the Schedule.¹⁶ It also has a higher threshold to pass when compared to the pre-104 IRB test.

Since the MVA, the Applicant has attempted to return to some type of employment, albeit at various jobs. He testified that in 2012 he attempted to work for a delivery company. His job responsibilities included delivering furniture to customers who purchased items in store. The Applicant showed on his 2012 tax return that he made $3,199.¹⁷ In 2013, the Applicant testified that he tried working at a friend’s landscaping company. This was short-lived as he was not able work within the parameters that the job required. The Applicant also worked in 2014 and 2015 based on the evidence provided on his T4 and personal income tax returns. The Applicant testified that he has tried to work in 2016 and 2017, however, the results were always the same. He was never able to maintain full-time employment as he had done prior to the MVA. He has tried working at various physically demanding jobs, but he has not been able to maintain this work because of the physical injuries that he sustained as a result of the MVA. Since fitness and working out are passions of the Applicant, he started working in November of 2017 at a gym selling memberships. The hours are sporadic and the pay is based on performance.

Although Dr. Anthony Tartaglia was not called to testify, he concluded in his report that the Applicant would have difficulty performing the tasks required of the demolition job because of the injuries he sustained in the accident.¹⁸

Below is a chart of the income that the Applicant has claimed on his personal income tax returns.

Year	Gross Income	Net Income
2009	$16,124	$16,124
2010	$13,919	$13,919
2011	$18,605	$18,605
2012	$3,199	$3,199
2013	$5,888	$5,888
2014	$24,484	$24,484
2015	$28,272 (T4) + $200 (WSIB)	$28,472

With the evidence submitted, I find that based on the balance of probabilities, the Applicant suffered only a substantial inability to work as it relates to his pre-employment tasks, not a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. The Applicant prior to the MVA was earning approximately $18,500 in income per year. For the two years post-accident, his income dropped significantly. However, in years three and four post-accident, the Applicant’s income was actually higher than it was pre-accident. It increased to $24,484 in 2014 and $28,472 in 2015 when compared to the Applicant’s pre-accident income in 2011 of $18,605. Based on the Applicant’s own testimony and the evidence provided, he has been able to increase his income while working sporadic hours as opposed to working basically full-time at Highland Packers (8.5 hours per day, 5 days a week) in 2011 prior to the accident.¹⁹

In addition, the Applicant did not complete post-104 week assessments for IRB entitlement even though the onus was on him to do so. Instead, the Applicant relied on the evidence of Dr. Unsal’s report but her evidence wasn’t specific to the question if the Applicant suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. Therefore, the Applicant is entitled to IRBs only from the date of loss until the two-year mark, less amounts paid.

Finally, as it related to the Applicant’s IRB quantum, neither the Insurer nor the Applicant had calculated the Applicant’s IRB quantum and as a result this is still a live issue for pre-104 IRBs.

ATTENDANT CARE BENEFITS

The Insurer does not dispute the Applicant’s need for attendant care. It agrees that the Applicant required attendant care after he was discharged from the hospital. However, there is disagreement in the area of proof as it relates to economic loss or incurred expense and quantum of attendant care.²⁰ Prior to the MVA, the Applicant had been living on his own with his girlfriend. It had been a number of years since he had lived at his parents’ home.

Once discharged from the hospital, the Applicant moved into his parents’ residence. At the residence, he had a hospital bed, walker, shower seat and numerous other assistive devices purchased in order to aid in his recovery. His mother and brother testified that they helped him with showering. His mother helped feed him since the Applicant’s mouth was wired shut. She also helped him with his medication. All family members testified that they took shifts in terms of helping the Applicant because he required 24 hour attendant care, especially when he was discharged from the hospital.

In order to qualify for attendant care benefits in section 19 of the Schedule, an Applicant must also establish that the services were “incurred”, which involves three components that must be addressed, as set forth in section 3(7)(e) of the Schedule.²¹

The Applicant’s family members testified that each of them has had a role in taking care of the personal caregiving needs of the Applicant through his recovery from his injuries. Rather than pay an individual attendant care provider, the Applicant’s family decided that it would be in the best interest of the Applicant that his family members act in this capacity.

The Insurer doesn’t dispute that the Applicant has been determined to be found to have sustained a catastrophic impairment as a result of the accident on September 22, 2011 based on the Applicant’s OCF-19 dated June 19, 2017 submitted under criteria 6. As a result, the Insurer agrees that the catastrophic limits apply with respect to attendant care benefits going back to the date of loss ($6,000 per month up to $1 million lifetime) and the Applicant can receive all expenses incurred as per section 45(6) of the Schedule. The Insurer ultimately terminated the Applicant’s attendant care benefits as of May 4, 2012 because the Applicant failed to attend an Insurer’s examination.²² The last OCF-6 related to attendant care benefits was submitted to the Insurer from August 6, 2012 to September 25, 2012.²³

The Applicant submitted his first Form 1 for attendant care benefits in the amount of $8,448.17 per month, dated October 13, 2011.²⁴ He submitted his second Form 1 in the amount of $12,305.61 per month dated October 26, 2011.²⁵

The Insurer’s assessor submitted their Form 1 for attendant care on January 6, 2012 and it was completed by Ms. Sheila Don.²⁶ This was the last Form 1 filed by either party. No further updates as to the Applicant’s attendant care needs were filed. The total amount of the Insurer’s Form 1 by Ms. Don is $689.75.

The Applicant sent a letter and an OCF-6 to the Insurer on August 13, 2012 stating there is a promise to pay his family members for incurred costs related to attendant care and housekeeping services.²⁷ Further, the Applicant’s brother Rawand testified that the Applicant told him he would give him, his sister and parents some money if he was ever compensated by the Insurer. Based on the requirement of Section 19, the Applicant has met this threshold.

In terms of economic loss, case law has shown that economic loss should be interpreted liberally. The Court of Appeal reviewed the regulations as they relate to attendant care that is provided by family members in Henry v. Gore Mutual Insurance Co. The Court concluded that the current section 3(7) (e) with its requirement that the family caregiver would have to sustain an economic loss was intended to provide a rough check on attendant care costs. Specifically, at paragraph 36, the Court held that:

If no such [economic] loss is sustained, no attendant care benefits are payable in respect of care provided by the family member, even if the family member provides care that would otherwise be provided by someone in the course of their employment, occupation or profession and would necessitate the payment of attendant care by the insured.

In terms of economic loss, the Applicant’s sister was a student at the time of the accident. She testified that she delayed starting a job because she was providing attendant care services to the Applicant. She only took on part-time supply teaching jobs and did not apply for full-time jobs because she needed to be available for the Applicant.

Further documented economic loss was demonstrated by the Applicant’s brother. He testified that he was a student at Mohawk College at the time of the accident. He had to drop out of school as a result of providing attendant care for the Applicant. As a result, he lost money on his text books and tuition which had been paid for. He also had to repay his OSAP loan since he dropped out of school.

When analysing entitlement to attendant care benefits in Henry v. Gore Mutual Insurance Co., the Court of Appeal declined to specifically define “economic loss”. The Court of Appeal indicated that the “incurred” provision of attendant care benefits was a threshold to be passed through in order to prove entitlement. Attendant care is payable in accordance with a Form 1 and subject to the requirement that the care be reasonable and necessary. Economic loss is simply the prerequisite in order for the Applicant to prove entitlement.

There is some guidance through case law that has been established in order to define what constitutes economic loss. Cases such as Simser v. Aviva,²⁸ Deol and Gore Mutual,²⁹ Aidoo and Security National Insurance Co.³⁰ and Tierney and North Waterloo³¹ are able to further help to narrow what qualifies as an “economic loss”.

In Simser v. Aviva, the Arbitrator held that expenses for gas, parking and meals do not satisfy the “economic loss” component of the “incurred” definition in a claim for attendant care benefits.

In Deol and Gore Mutual, Arbitrator Wilson confirmed the Court of Appeal’s decision in Henry v. Gore Mutual when determining economic loss. Further, Arbitrator Wilson stated “that the provision of economic loss is merely a threshold to be crossed in order to access funding. There is no direct linkage between the size of the economic loss and the quantum claimed for the services provided.” He went on to state that because the definition of economic loss is generalized, it simply means any economic loss suffered by the treatment provider, however minimal, would qualify as an economic loss. In the case of Aidoo and Security National, which was confirmed on appeal, the Arbitrator found the applicant’s sister had sustained an economic loss by not starting a job that would have paid $12 per hour because she felt obliged to help her sister. The occasional loss of a four-hour shift from a part-time job also qualified as economic loss in that case.

In the case of Tierney and North Waterloo, economic loss was demonstrated by the attendant care provider who was a student at the time of the motor vehicle accident. The service provider in Tierney and North Waterloo subsequently had to accept a lower paying position than anticipated due to the requirement for flexible time and proximity to provide attendant care services.

There is consensus that the Applicant in fact received/incurred attendant care services after the accident as defined in Section 19 of the Schedule. Even though the receipts and OCF-6s submitted to the Insurer with respect to attendant care and housekeeping and home maintenance by the Applicant do not provide much detail related to the services performed, these attendant care details were addressed through the testimony of the Applicant’s witnesses. The Insurer takes the position that the Applicant has failed to meet his burden of proof as it relates to entitlement of attendant care benefits. It submits there is minimal documentary evidence showing that anyone in the Applicant’s family has sustained an economic loss to provide attendant care services to him. Further it states that the evidence provided throughout the course of this Hearing is insufficient to meet the burden of proof. I disagree with the Insurer’s position. The evidence shows the attendant care services were incurred. There was a promise to pay for these services and there is evidence of an economic loss.

Duration of Attendant Care Benefits

Since I’ve determined the Applicant was entitled to attendant care benefits, the question remains: how long is attendant care payable at the rate of $6,000.00 per month and if it is reduced, when should it be reduced and by what amount?

The Applicant did not attend his Insurer’s Examination for attendant care benefits. As a result, the Applicant’s attendant care benefits were terminated as of May 4, 2012. There is no further evidence of claims for attendant care and housekeeping and home maintenance after September 25, 2012,³² approximately one year after the accident.

The Applicant’s Form 1s were filed in excess of $6,000.00 per month (the maximum available under the Schedule), starting when the Applicant was discharged from the hospital to begin recovery at his parents’ residence in October of 2011. The Insurer’s Form 1 was filed on January 6, 2012 at a greatly reduced amount of $689.57 per month. The Insurer’s OT (occupational therapist), Sheila Don, found that the Applicant at this time had ongoing functional limitations and required assistance with dressing, undressing, grooming, feeding, mobility, hygiene and maintenance of supplies and equipment. The Applicant is taking the position that the Insurer’s Form 1 of $700 per month is not a reasonable amount to cover the Applicant’s attendant care requirements. Further this dollar amount on Ms. Don’s Form 1 is contradictory with her own observations and is not a reliable measure of quantum of attendant care. This may be true, but the Applicant never filed a rebuttal report and updated Form 1 after Ms. Don submitted her assessment on January 6, 2012.³³

The Applicant and his family members testified that the Applicant’s attendant care needs changed from hands-on attendant care services to more supervisory attendant care. They testified that the Applicant continues to be limited in his daily functioning by his pain, psychological and cognitive deficits. All members of his family testified that the Applicant does not remember appointments, does not remember to carry his medication, and does not remember to even pay bills. The need for supervisory attendant care remains.

The evidence tendered at the Hearing by the witnesses including the Applicant shows the Applicant stopped requiring the services of an attendant care provider based on the tasks that Ms. Don documented at some point in 2012. The Applicant currently lives on his own. He dresses and undresses independently and based on his testimony he completes the tasks that he would require an attendant care provider for on his own.

Looking at the totality of the evidence, I agree with the Applicant’s Form 1 submitted in terms of attendant care benefits required and the amount being the maximum allowed of $6,000.00 per month. This amount should be paid from the day the Applicant was discharged from the hospital on October 26, 2011 up until May 4, 2012, which is the date of stoppage. After May 4, 2012, the evidence shows that the Applicant was able to function at a greater level of independence. At this point, the amount of the Insurer’s Form 1, since it’s the most recent Form 1 filled out, should be payable up until September 25, 2012, which is the last date attendant care documentation was submitted by the Applicant. Further, based on the evidence submitted, the Applicant was functioning independently in 2013, thereby reducing the requirement for attendant care services.

HOUSEKEEPING AND HOME MAINTENANCE BENEFITS

As a result of the Applicant’s injuries being designated as catastrophic, the Applicant is entitled to claim housekeeping and home maintenance benefits. Since I ruled that the Applicant is not excluded by Section 31 of the Schedule from applying for housekeeping and home maintenance benefits, this became an issue in dispute at the Hearing. The onus is still on the Applicant to prove that from a medical perspective, he qualifies for housekeeping and home maintenance benefits and that these benefits have been incurred. The parameters of housekeeping and home maintenance entitlement are found in Section 23³⁴ of the Schedule.

The Applicant and his family members testified that once the Applicant was on the road to recovery, he had moved out of his parents’ home. While the Applicant was recovering, the Applicant’s family had to take care of his dogs as well as other personal housekeeping needs. The Applicant’s brother, sister and parents testified that they all took turns taking care of the Applicant’s animals. They would clean up after the dogs, feed the dogs as well as walk the dogs since the Applicant was not able to take of the animals himself. The Applicant’s family members also gave evidence that the housekeeping/home maintenance services were required by the Applicant for tasks that he used to complete independently but now required assistance to complete.

The evidence shows that the Applicant still requires housekeeping/home maintenance services as of today. His family testified that they do the Applicant’s laundry, cook and clean for him. Therefore, based on the evidence submitted at the Hearing, on the balance of probabilities, the Applicant required and still requires housekeeping and home maintenance benefits from the date of loss to date and ongoing as a result of the injuries he sustained as a result of his MVA.

SURVEILLANCE OF THE APPLICANT

At the Hearing, surveillance was produced by the Insurer showing the Applicant going about his daily life. Further, the Insurer also produced a voluminous amount of Facebook posts from the Applicant’s social media account.

All of this evidence could be considered a snapshot in time and does not provide a true 24/7 view of the Applicant’s life; however, it does provide a short glimpse into the Applicant’s behaviour when he is out in public. Further, posts on social media are not necessarily helpful to the Applicant’s case. However, in this situation, I chose to rely more on the documented and medical evidence rather than the surveillance and social media posts. No one can tell other than the person who posts the entries on Facebook the reason why the person chose to make the comments he did when it comes to Facebook and social media or selected the pictures that he chose to post. As a result, the reliability of such evidence on Facebook is somewhat suspect both for the Applicant and the Insurer.

Interest

This case is unique due to the fact that most of the benefit amounts owed to the Applicant were only made available once the Applicant’s injuries were found to be catastrophic. For example, the Applicant would not have been able to receive housekeeping and home maintenance if not for his catastrophic designation. In addition, the Applicant would not be entitled to $6,000 for attendant care benefits but for the Applicant’s injuries being deemed catastrophic.

Therefore, I am not awarding interest payable for either attendant care benefits or housekeeping/home maintenance benefits. In terms of IRBs payable, the quantum of IRBs owed has not been calculated. If the parties require a subsequent Hearing in order to determine IRB quantum, then submissions in regard to interest payable on the outstanding IRB amounts can be addressed at that time.

CONCLUSIONS

There were only two expert witnesses called on behalf of the Applicant as well as four lay witnesses at this Arbitration. The Insurer called no witnesses and instead relied on documentary evidence that the Insurer submitted.

The onus of proof was on the Insurer to prove that Section 31 of the Schedule should apply to the Applicant’s case. Based on the evidence presented before me, I found that the Insurer was not successful in this regard and, as a result, the Applicant was not excluded because of Section 31 from applying for accident benefits.

In terms of the Applicant’s accident benefits claim, the onus is on the Applicant to prove his entitlement to benefits that are in dispute. The Applicant was partially successful in this regard. As it related to IRBs, the Applicant was successful in proving entitlement to pre-104 IRBs but failed to discharge his onus in proving entitlement to post-104 IRBs. The Applicant was partially successful in proving entitlement to attendant care benefits. The amount and the duration of attendant care benefits were reduced from the amount and duration that the Applicant claimed. The only area where the Applicant was 100% successful was in proving entitlement to housekeeping and home maintenance benefits.

EXPENSES

The parties made no submissions on expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an Expense Hearing with me for determination of the same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

January 29, 2018

Jeff Musson Arbitrator

ARBITRATION ORDER

Under section 282 of the 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 Ontario Regulation 664, as amended, it is ordered that:

Mr. Bakir is entitled to income replacement benefits from September 29, 2011 to September 22, 2013, less post-accident income. If the parties are unable to agree to the quantum of income replacement benefits that the Applicant is entitled, the parties can request a subsequent Hearing in order to make submissions specific to the issue of income replacement benefit quantum.
Mr. Bakir is not entitled to income replacement benefits from September 23, 2013 and ongoing less post-accident income and this claim is dismissed.
Mr. Bakir is entitled to attendant care benefits in the amount of $6,000.00 per month from October 26, 2011 to May 4, 2012 and then $687.24 from May 5, 2012 until September 25, 2012.
Mr. Bakir is entitled to housekeeping and home maintenance benefits in the amount of $100 per week from September 22, 2011 to date and ongoing.
Mr. Bakir is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an Expense Hearing with me for determination of the same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.