Inconsistent Testimony Leads to Reliance on Defendant’s Evidence

February 07, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

D.S. v Economical Mutual Insurance Company – Caregiver Benefits; CAT injury; contradictory evidence; inconsistent testimony leads to reliance on defendant’s evidence

D.S. v Economical Mutual Insurance Company

Date of Decision: November 2, 2016
Heard Before: Nicole Treksler, Member with Observer  Anita John, Member

D. S., was injured in a car accident on March 13, 2012, and sought benefits pursuant to the Schedule.   D.S. sustained a catastrophic , however when D.S. applied for caregiver benefits for his children Economical denied his application for these benefits.

Economical takes the position that D.S. was not the primary caregiver at the time of the accident; and that he has not shown that he has incurred any reasonable and necessary expenses as a result of the accident in caring for a person in need of care.

Issues:

1. Is D.S. entitled to receive weekly caregiver benefits at the rate of $300.00 per week from May 14, 2015 and ongoing?
2. Is D.S. entitled to interest for the overdue payment of the benefit?

Result:

1. D.S. is not entitled to receive weekly caregiver benefits at the rate of $300 per week from May 14, 2015 and ongoing.
2. D.S. is not entitled to applicable interest on the benefit.

The Arbitrator reviewed the evidence and the law in order to determine whether D.S. is the primary caregiver.

D.S. is married with two young children. Both D.S. and his wife were providing care to their children. At the time of the accident, he was not working and was looking after his young children and taking care of the home. D.S.’s wife was working full-time. The main issue in this matter is whether D.S. or his wife was the primary caregiver at the time of the accident. To be eligible for caregiving benefits D.S. has the onus to prove that he was the “primary caregiver for the person in need of care and did not receive remuneration for engaging in caregiving activities.”.  Further under section 13(2) of the Schedule, D.S. must prove that he has paid for “reasonable and necessary expenses incurred as result of the accident in caring for a person in need of care.”

The term “primary caregiver” is not defined in the Schedule. Economical provided Financial Services Commission of Ontario (“FSCO”) Tribunal case law to guide the determination of who is the primary caregiver in this case.  Of note was this section:

Where there are a number of caregivers, a determination of who is the primary caregiver may involve consideration of relative amounts of time, energy and efforts spent in caregiving and the significance, importance and relative results of those efforts.”

 Another FSCO decision noted that:

 “primary caregiving” must be analyzed and evaluated from a qualitative and quantitative perspective.

D.S. did not offer a method to determine the primary caregiver issue. As such the Arbitrator relied on the quantitative and qualitative perspective as defined above.

D.S.’s position is that he was the primary caregiver at the time of accident. He submits that he was at home receiving benefits from Ontario Disability Services Program (ODSP) and taking care of his children while his wife, AD, worked.  D.S. filed two affidavits (one from D.S. and the other from AD) in support of his Application that he was the primary caregiver at the time of the accident.

At the time of the accident, his wife was working full-time approximately 40 hours per week. Her normal shifts were Tuesday to Saturday from 11:00 a.m. to 6:00 p.m. On some Saturdays, she would work from 6:00 a.m. to noon, and once a week she would have a shift in the evening (11:00 am. to 9:00 p.m.). AD testified that because of her health issues, it was D.S., with the help of his mother, who were raising the children. The children struggle with serious health, behavioural and disciplinary issues. As such, D.S. and AD indicated that it was very difficult to raise their children and there were many problems with discipline and routine.

Economical submits that it was AD, and not D.S., who was the primary caregiver at the time of the accident.  According to Economical, D.S. played only a minor role in raising the children. Economical submits that prior to the accident D.S. suffered from chronic knee pain, was constantly fatigued, and lacked interest, motivation and energy. Economical claims D.S. consumed a significant amount of alcohol and cannabis throughout the day. Economical asserts that D.S. was not in position to provide adequate care to his children as result of his physical and psychological medical conditions.

Economical submits that D.S. and AD had problems with discipline and routine with the children, relying on Children’s Aid Society (“CAS”) records. These records show that CAS provided support to the family, mostly on parenting, from April 26, 2010 until July 23, 2015.  Economical highlights that during this period there were 204 reported interactions between CAS and AD, whereas D.S. had just over 60 interactions with CAS in the same period.

Throughout AD’s interactions with CAS, she reported that D.S. was not significantly involved.  Economical submits that these reports contradict AD’s evidence that D.S. was the primary caregiver

During the cross-examination, Economical asserts that AD provided inconsistent and contradictory testimony.

In review of the evidence the Arbitrator too the view that AD was the primary caregiver from both a quantitative and qualitative perspective. While her testimony and statements to Economical and before the Tribunal are contradictory, the documentary evidence is consistent. Although D.S. states that he looked after the children and cleaned the home, the evidence from CAS and D.S.’s EUO show that AD spent more time on caregiving activities. Given this finding it was not necessary to determine whether he incurred reasonable and necessary expenses in caring for his children.

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