March 26, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Bakir and Dominion of Canada
Date of Decision: January 29, 2018
Heard Before: Adjudicator Jeffrey Musson
IRBs and ATTENDANT CARE: applicant is victim of insurance fraud; applicant could not reasonably have known the fact he was uninsured;
Mr. Mark Bakir, 24 years old, was in a car accident on September 22, 2011 while riding his motorcycle. He was hit sideways by another vehicle. Mr. Bakir was thrown from his motorcycle landing several feet from the collision and causing his helmet to come off his head. When Mr. Bakir hit the ground, his head and spine sustained the brunt of the fall. Ambulance and first responders attended the scene. Mr. Bakir 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
He applied for statutory accident benefits from Dominion however, when the parties were unable to resolve their disputes through mediation Mr. Bakir applied for arbitration at the FSCO.
- Is Mr. Bakir entitled to IRBs from September 29, 2011 to September 22, 2013 less post-accident income?
- Is Mr. Bakir entitled to IRBs from September 23, 2013 to date and ongoing less post-accident income?
- Is Mr. Bakir entitled to ACBs 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?
- Mr. Bakir is entitled to IRBs from September 29, 2011 to September 22, 2013, less post-accident income.
- Mr. Bakir is not entitled to IRBs from September 23, 2013 and ongoing less post-accident income and this claim is dismissed.
- Mr. Bakir is entitled to ACBs 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 testified that he doesn’t remember the accident. He testified that he was a very socially engaged person pre-accident. He had many hobbies, including working on cars and motorcycles. Mr.
Mr. Bakir 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.
Mr. Bakir 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. Mr. Bakir 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 Mr. Bakir’s budget; so there was no need to shop the rate around. When Mr. Bakir 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. Mr. Bakir listed his parents’ address for his insurance even though he was not living at their residence.
After purchasing insurance, Mr. Bakir 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 Mr. Bakir’s insurance. Further, Mr. Bakir gave evidence that neither officer issued a ticket to Mr. Bakir for not having valid insurance. Mr. Bakir 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.
Mr. Bakir testified that he had numerous therapy sessions after being discharged from the hospital, was prescribed numerous medications to control his pain, and 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.
Mr. Bakir confirmed that he was applying for IRBs, ACBs and housekeeping/home maintenance benefits with this case. Mr. Bakir was asked why he did not attend Dominion’s Examination with respect to his claim for IRBs 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. Mr. Bakir testified that he avoided all mail service because it stressed him out.
Mr. Bakir was working full time at the time of the accident, but the MVA, he has had trouble holding down various jobs. All three of his attempts to return to work have been unsuccessful. He tried truck driving, and general labour. He also stated that any income that he did generate was reported on his personal income tax return as T4 income.
When he was asked about the attendant care that he required post-accident, he had no recollection in terms of when Dominion’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. Mr. Bakir 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 Mr. Bakir had a rather extensive presence on social media, specifically Facebook. When questioned by Dominion as to why his testimony was contradicting the pictures that he posted on Facebook, Mr. Bakir 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.
Mr. Bakir 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. Mr. Bakir has tried to return to some semblance of a normal life, but it’s been a daily struggle.
Assessments conducted on Mr. Bakir concluded that he suffered numerous physical and psychological injuries including a significant skull fracture, noting that injuries such as this cause individual’s cognitive impairments, difficulty with attention, memory issues as well as other psychological issues. Other conclusions from doctors included that Mr. Bakir 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. There was testimony 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.
Dominion has put forward the position that Mr. Bakir did not have valid insurance at the time of the accident and therefore Mr. Bakir should be found to be non-compliant with section 31 of the Schedule. As the driver of his motorcycle at the time of the accident, did Mr. Bakir 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 Dominion has the burden to prove that Mr. Bakir knew or ought reasonably to have known that he was not insured at the time of his accident. Dominion failed to produce independent witnesses to show that Mr. Bakir knew or ought to have known that he didn’t have valid insurance. Mr. Bakir 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. Mr. Bakir’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, Mr. Bakir tendered evidence that the motorcycle was licensed and plated which would have required Mr. Bakir to show “proof of insurance from an insurance provider licensed in Ontario” 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 Mr. Bakir’s motorcycle at the time of the MVA was legally plated.
Mr. Bakir 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.
The Adjudicator was satisfied that based on the balance of probabilities, Mr. Bakir believed that he had purchased a legitimate insurance policy for his motorcycle and dismissed the preliminary motion by Dominion and ruling that Mr. Bakir is not precluded from claiming IRBs and housekeeping/home maintenance benefits pursuant to Section 31(1)(a)(i) of the Schedule.
The onus is on Mr. Bakir to prove entitlement to the benefits in dispute. The evidence presented at the Hearing shows that Mr. Bakir 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 Mr. Bakir 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 Mr. Bakir that he was attempting to mislead the Commission or purposely avoid giving details to questions asked.
Mr. Bakir had two doctors testify at the Hearing. Dominion chose not to call any witnesses and instead relied upon documentary evidence. In addition, Mr. Bakir submitted documented reports as part of his evidence.
The Adjudicator reviewed that Pre-104 week IRB test and determined that based on the evidence Mr. Bakir met the burden of proof for entitlement.
The Adjudicator reviewed the post-104 IRB test and noted that In order to qualify for post-104 IRBs, Mr. Bakir 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.
With the evidence submitted, I find that based on the balance of probabilities, Mr. Bakir 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
Dominion does not dispute Mr. Bakir’s need for attendant care and that he has CAT determination. It agrees that Mr. Bakir 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. In order to qualify for ACBs in section 19 of the Schedule, Mr. Bakir must also establish that the services were “incurred”, which involves three components that must be addressed, as set forth in the Schedule.
Mr. Bakir’s family members testified that each of them has had a role in taking care of the personal caregiving needs of Mr. Bakir through his recovery from his injuries. Rather than pay an individual attendant care provider, Mr. Bakir’s family decided that it would be in the best interest of Mr. Bakir that his family members act in this capacity.
Dominion agrees that the catastrophic limits apply with respect to ACBs going back to the date of loss ($6,000 per month up to $1 million lifetime) and Mr. Bakir can receive all expenses incurred as per section 45(6) of the Schedule. Dominion ultimately terminated Mr. Bakir’s ACBs as of May 4, 2012 because Mr. Bakir failed to attend an Insurer’s examination.
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 ACBs 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.
Based on the evidence the Adjudicator determined that Mr. Bakir is entitled to ACBs the amount being the maximum allowed of $6,000.00 per month.
The onus is still on Mr. Bakir to prove that from a medical perspective, he qualifies for housekeeping and home maintenance benefits and that these benefits have been incurred. The evidence shows that Mr. Bakir still requires housekeeping/home maintenance services as of today.