Justice 1995 S.P. No. 03334 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: BERTHA JUNE LANGILLE and MIDWAY MOTORS LIMITED, and CATHERINE AUBRECHT, Administratrix of the Estate of KARL FRANCIS AUBRECHT, deceased, and GUARDIAN INSURANCE COMPANY OF CANADA and WILLIAM VINCENT PARIS DEFENDANTS HEARD: heard before the Honourable Chief Justice Joseph P. Kennedy, Supreme Court of Nova Scotia, Pictou, Nova Scotia, May 17, 18, 19, 20, 21, 1999 DECISION: November 20, 1999 DECISION RELEASED: November 22, 1999 COUNSEL: Jean McKenna, solicitor for the defendants Milton J. Veniot, Q.C., solicitor for the plaintiff KENNEDY, C.J.: There is no dispute as to the motor vehicle accident that resulted in this action. On October 9, 1993, at approximately 10:45 a.m., William Vincent Paris (Vince) was driving on the Trans Canada Highway at James River, Antigonish County, when his vehicle was hit “head on” by vehicle operated by Karl Aubrecht. The plaintiff, Bertha Langille, 40 years of age at the date of the accident, is the common law wife of Vince Paris. She was passenger in the Paris vehicle. She was injured as result of the accident. She sustained fractures to both of her wrists and broke her left ankle. Bertha Langille started an action against the Aubrecht Estate, Midway Motors Ltd. (the owner of the Aubrecht vehicle), Mr. Paris, and the Guardian Insurance Company, Mr. Paris’ insurer. (Guardian) It is Bertha Langille’s claim against Guardian, pursuant to Schedule “B” of the Paris insurance policy, that is the subject of this trial. Schedule “B” to Part VI (Automobile Insurance) of the Insurance Act, R.S.N.S., 1989, c. 231, is incorporated into the standard automobile policy for Nova Scotia and forms part of the Paris insurance policy. Its relevant portions read as follows: “The Insurer agrees to pay to or with respect to each insured person as defined in this section, who sustains bodily injury or death by an accident arising out of the use or operation of an automobile. *** Part II Loss of Income Subject to the provisions of this Part, weekly payment for the loss of income from employment for the period during which the insured person suffers substantial inability to perform the essential duties of this occupation or employment, provided: (a) such person was employed at the date of the accident; (b) within 30 days from the date of the accident and as result of the accident the insured person suffers substantial inability to perform the essential duties of his occupation or employment for period of not less then seven days; (c) no payment shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, the Insurer agrees to make such weekly payments for the duration of such inability to perform the essential duties. Amount of Weekly Payment The amount of weekly payment shall be the lesser of, (a) $140 per week; or (b) 80 per cent of the insured person’s gross weekly income from employment, less any payments for loss of income from employment received by or available to such person under, (i) the law of any jurisdiction, (ii) wage or salary continuation plans available to the person by reason of his employment, and (iii) subsection 2A, but no deduction shall be made for any increase in such payment due to cost of living adjustment subsequent to the insured person’s substantial inability to perform the essential duties of his occupation or employment.” For the purposes of this Part “(3) person shall be deemed to be employed, (a) if actively engaged in an occupation or employment for wages or profit at the date of the accident; or (b) if 18 years of age or over and under the age of 65 years, so engaged for any six months out of the preceding 12 months and in these circumstances shall be deemed to have suffered loss of income at rate equal to that of his most recent employment earnings.” Bertha Langille claims this part of the policy applies to her. She submits that she was employed at the date of the accident, and that the injuries that she sustained, while passenger in the Paris vehicle, have resulted in “the substantial inability to perform essential duties of her employment” and further, that after the 104 week period, the injuries continuously prevent her from engaging in any employment for which she is suited. She seeks, therefore, compensation for loss of income from employment. “EMPLOYED AT THE DATE OF THE ACCIDENT” Before Bertha Langille can lay claim to any benefit under this provision of the policy, she must show, on the balance of probabilities, that she was “employed for wages at the date of the accident.” It is the position of the defendant that she has not done so. In fact, Guardian compensated Bertha Langille under this provision of the policy, in the amount of $140.00 per week for 129 weeks, having at first accepted the claim that she was employed at the time of the accident. The defendant, after the 129 week period, cut off those payments, on medical grounds, but then came to believe that she had not been so employed. The defendant has good reason to question the plaintiff’s evidence as to employment at the time of the accident. The initial claim made to Guardian on behalf of Bertha Langille, was made by Vince Paris, while Bertha Langille was still hospitalized. He first spoke to the adjuster, Jim Mitchell, within days of the accident. Mr. Mitchell testified that Mr. Paris told him at that time, that his wife Bertha Langille had three jobs; that she did the books for security business that he ran; that she did the books and worked with him in laundromat business that he owned, and that she did private housekeeping full time. handwritten statement that Vince Paris made to support the claim on October 18, 1993, nine days after the accident, is evidence in this matter. (Exhibit 10, Tab 3) In it, relative to Bertha Langille’s employment, he states: “I also own and manage A. R. Laundromat at 295 MacColl St., New Glasgow. It is open seven days week from o’clock in the morning to 10:30 in the evening. My wife and split the laundromat hours. Usually 47 hours each per week. The laundromat usually nets us $1,200.00 to $1,500.00 per month.” and subsequently, “Besides working at the laundromat, my wife cleans houses for $8.00 per hour. She worked 40 hours week for various individuals. She also works on average 7.5 hours week at security work for Quick-Pick stores at $11.00 per hour. Also, she worked on my ‘Burger Bus’ during ball tournaments. paid her $9.00 per hour.” It was in response to these claims by Vince Paris that Guardian began to make the loss of income payments to Bertha Langille. Some of the information that Mr. Paris provided is not correct. For instance, Bertha Langille never, at any time did the books for any business. She never was employed at the laundromat. She testified at trial, “that isn’t true, didn’t tell them that that was Vince, not me. The most ever did at the laundromat was go in and look around and sometimes helped clean up at night.” She stated that she received no payment for this. She also testified that she was not working security at the time of the accident. She pointed out that she was not the source of that information either. As to housekeeping, the evidence is at best, confusing. Vince Paris had claimed that she was doing this job 40 hours week this isn’t correct. Bertha Langille admitted that she only did housekeeping part-time. The adjuster, Jim Mitchell testified. He had written report to Guardian dated March 30, 1994. (Exhibit 10, Tab 4) By this time he had interviewed Bertha Langille directly. In that report he states at p. 3: “Contrary to the information that had been provided us by Vincent Paris, Mrs. Langille had not started work for the three families for whom she does housework. She does that work during the fall and winter and she tells us that she was about to start back, but had not started to receive any payment at the time of the accident.” At her discovery on March 17, 1997, (Transcript, p. 71), Bertha Langille testified that she was not doing housework at the time of the accident, but was going to do so in the fall and winter. This is consistent with her statement to Mitchell. At trial though, Bertha Langille testified that she was mistaken when she said at discovery that she was not doing housework at the time of the accident. She stated that she now remembers that she had continued to do housekeeping right up until the time of the accident. Unlike the laundromat and bookkeeping claims, there is evidence that Bertha did do housekeeping at times, however none of the income she earned from this type of employ was ever reported for income tax or unemployment insurance purposes. Because of the contradictory evidence, cannot find on the balance of probabilities that Bertha Langille was doing housekeeping for income at the time of the accident. THE ‘BURGER BUS’ The ‘Burger Bus’ operation is central to the plaintiff’s claim. Vince Paris, in November of 1992, had purchased mobile fast-food canteen operated out of converted school bus. This so-called ‘Burger Bus’ which he operated under the name “Big Ray’s Take Out,” was new venture. The first year that Paris operated it was 1993. It was taken to fairs, sporting events, festivals, places where crowds gathered and people got hungry. Bertha Langille did work in this business during the year 1993; the defendant, Guardian acknowledges this. What is in issue is the extent of her involvement and the remuneration that she received. Further, the defendant argues that she has not shown that she was so employed at the time of the accident. Again, the evidence is contradictory. It is of significance that in conversation with the adjuster days after the accident, when Vince Paris speaks of the three jobs that his wife had, he does not mention the ‘Burger Bus’. Bertha Langille testified at trial that she “ran the bus.” She worked stocking inventory, preparing the food, short-order cooking and serving the customers. She said at trial that the bus first operated for business sometime in January of 1993, when it was set up on her father’s property, outside of Pictou. She said they operated it, “at random,” there for month or month and half, then they moved it to spot closer to the Pictou Rotary and did business there for couple of months. On cross-examination it was pointed out to her that, on discovery in 1997, she testified that the bus started operation the summer of 1993. She responded that what she meant was, that it was summer when she went on the payroll. “To me it started operating in June the real work didn’t start until June.” She testified that she was paid $360.00 weekly to run the ‘Burger Bus’ which was based on rate of $9.00 an hour, 40 hours week. At discovery she had testified that she worked every week day that summer, on the bus. However, at trial, she agreed that was not correct, but in fact, she had taken the month of August off, because her daughter was sick and she stayed home to care for her. During that month, she exhausted the last of her unemployment insurance eligibility. She said she was not paid the $360.00 week in August. Bertha Langille stated that she had no intention of working on the ‘Burger Bus’ through the winter of 1993 1994, but would have gone on unemployment insurance as she regularly did in the winter. She does though, maintain that she was continuing to work on the ‘Burger Bus’ in October of 1993, right up until the accident. Specifically, she said, the afternoon of the day of the accident they had intended to take the bus to rugby tournament. Bertha Langille testified that she thought they had been to rugby tournament with the bus previously that year. Vince Paris testified, he wanted to get the bus set up for rugby game in New Glasgow on the afternoon of the day of the accident, but the trip to Antigonish and then the accident, intervened. Vince Paris also testified that previously, that year they had taken the bus to rugby match. Brian Lewis, rugby player and manager, testified. He said there was only one rugby team in the Pictou County area in 1993. He testified that that year he did not see the ‘Burger Bus’ set up at any rugby games and when concessions were operated at rugby games, they were run by the team as fund raiser. The only record of Bertha Langille’s income from working on the ‘Burger Bus’ is ledger page and an insurable earnings report made to the Unemployment Insurance Commission, dated February 1, 1994, months after the accident. (Exhibit 1, Tab 5) We know that Vince Paris’ ‘accountant’, John Wood, prepared the report (he signed it), and it is fair inference that John Wood was the one who completed the ledger page, because Vince Paris testified that he did not do it. When shown the ledger sheet, he testified, “I don’t recognize this document ... didn’t have anything to do with it.” He later testified on cross examination that it was part of bigger payroll book kept in Wood’s office. The question was put, “Apart from this piece of paper, do you have any other document showing any record of payment to Bertha?” Mr. Paris’ answer was, “No don’t.” Vince Paris further testified that it was John Wood who actually paid Bertha for her work on the bus and that he did not know if she was paid in cash or by cheque. There were no cheques produced in evidence. John Wood was not available as witness. He has apparently disappeared. Although he held himself out to be certified managerial accountant (C.M.A. appears after his signature on the Unemployment Insurance Report), there is evidence before this court to show that he was not so qualified. As to the ‘Burger Bus,’ the ledger page sets out that, Bertha Langille was paid $360.00 week for 40 hours day. It sets out that she worked for nine weeks between June 26th, 1993 and October 9, 1993. The Insurable Earnings Report repeats this information. The defendant has argued that this report, prepared months after the accident, and not produced until litigation had commenced, is highly suspicious, because it serves no practical use, other than for the support of this claim. The nine weeks would not have qualified for unemployment insurance in Pictou County in 1993. Bertha Langille was asked why the form was prepared in February 1994, if she knew she did not have enough weeks to qualify for unemployment insurance prior to her accident. She did not know of reason. agree with the defendants’ characterization of this report. To put all of the evidence in context, it is significant that, with the exception of the housekeeping jobs, the employment claimed involved Bertha Langille working for her common law husband. That situation creates an “arms length” problem for the plaintiff. It is insightful to look at the evidence specific to the security job. This security business was also operated by Vince Paris. Firstly, despite what Mr. Paris says in his statement of October 18, 1993, there is no credible evidence that Bertha Langille was doing security work at the time of the accident. She testified at discovery on March 17, 1997, that her only income at the time of the accident was from the ‘Burger Bus’ and she only qualified this statement at trial with respect to housekeeping. Bertha Langille’s testimony at trial was that, this security work had “wound down in 1992.” What is, though, significant, is that Bertha Langille’s security employment with Vince Paris for the previous three years (1990, 1991, 1992) had covered the period August to December, when in each year she would begin collecting unemployment insurance benefits. (Exhibit 11) The defendant has pointed out the remarkable consistency of employment time periods for business that is not seasonal. This consistency, the defendants submit, is better understood when Bertha Langille’s income tax records for those years are examined. (Exhibit 1, Tabs through 4) Bertha Langille coincidentally, was also paid $360.00 week for her security work. On the basis of that rate of pay in each of those years, she worked in the security business, exactly the number of weeks required to qualify her for unemployment insurance. Guardian has suggested that Bertha Langille’s security job was husband and wife unemployment insurance generating operation. It asks this Court to consider the ‘Burger Bus’ employment as being likewise and questions if she actually worked and was paid as is claimed. have concerns about the quality of the plaintiff’s evidence as to employment. Ordinarily, an employee could rely on the employer’s evidence and ample documentation to establish such claim. Evidence of employment should not be difficult to produce. problem that this plaintiff faces, is that the employer is unreliable. It is clear to me why the plaintiff did not put Vince Paris on the stand. (He was called by the defendant.) Vince Paris has credibility problems. When he first speaks to the adjuster, Mitchell, about Bertha’s claim, he does not even mention the ‘Burger Bus’. Notwithstanding that, he now claims to have been paying Bertha Langille $360.00 week to run this bus right up to the day of the accident. few days after this interview, he gives written statement on October 18, 1993, which is manifestly false as to the plaintiff’s participation in the laundromat business and at least substantially incorrect as to housekeeping and surveillance work. Vince Paris has no records of Bertha Langille’s remuneration for employment on the ‘Burger Bus’ except for ledger page not supported by any other documentation such as bank statements and cheques. The unemployment insurance receipt prepared months after the accident has no obvious business purposes. The person who prepared this documentation is not available as witness. John Wood continued to act as Vince Paris’ accountant until 1998, well after documentation supporting Bertha Langille’s claim became an issue in this proceeding, and yet supporting documentation that the paymaster commonly would have had is not produced. When faced with the obviously false information that he had provided the insurance company in support of Bertha Langille’s claim, Vince Paris said, “I firmly believe that the accident affected my memory.” If so, in the case of the laundromat and the bookkeeping, it caused him to remember things that did not happen. Bertha Langille, although exhibiting pleasant demeanour on the witness stand, and appearing credible with respect to some of her testimony, was not, find, credible with respect to employment evidence. There were too many contradictions in her testimony. do not believe her when she testified that she was employed on the ‘Burger Bus’ at the date of the accident. have considered the totality of the evidence put forward herein, and do not find on the balance of probabilities that Bertha Langille was “employed at the date of the accident.” find further that the plaintiff has not shown that she worked for any six months out of the preceding 12 months and so does not fall within the deeming provisions. The plaintiff has not been able to satisfy the threshold employment requirement and so cannot succeed on this claim against Guardian. It has not been necessary to consider the evidence relative to her continued disability. find that she is not entitled to any benefit under Schedule “B”. REPAYMENT It is the defendant, Guardian’s position that the plaintiff cannot show that she was employed at the time of the accident. Therefore, it is entitled to the repayment of the money it paid to her under Schedule “B”. She was paid $140.00 per week for 129 weeks before payments were cut off. The defendant argues that these payments were made on the basis of misinformation provided by the plaintiff’s common law husband, some of which were confirmed by Bertha Langille. The plaintiff argues in response that the defendant is estopped from claiming a repayment. Bertha Langille testified that had she known that there was possibility that she would have to pay the Schedule “B” benefits back, she would not have accepted the money. The plaintiff cites Waddams, The Law of Contracts (1984, Canada Law Book) at p. 143: “The basic concept of estoppel is that person is precluded from retracting statement upon which another has relied. definition that has been judicially approved is as follows: where one person (’the representor’) has made representation to another person (‘the representee’) in words, or by acts and conduct, or (being under duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto.’ (Emphasis added). The plaintiff submits that by failing to indicate any interest in claiming repayment of those benefits until after the commencement of this litigation, the defendant caused Bertha Langille to “alter her position to her detriment” by continuing to accept the money. The plaintiff argues that having failed to do so, it would not be equitable to allow Guardian to enforce its strict legal rights. do not find that the defendant should be prevented from seeking recovery of monies paid on the basis of what have turned out to be misrepresentation and unprovable assertions. I find that the defendant acted expeditiously to comply with its contractual obligation, on the basis of the representations put forward on behalf of the plaintiff, to provide income replacement when the need was made apparent to it. Such quick and uncomplicated response by insurance companies in such circumstances is to be encouraged. It would be in my mind, illogical to prevent Guardian from getting its money back when it is found that the benefits were paid on the basis faulty information provided on behalf of the plaintiff. The plaintiff did not “alter her position to her detriment” by accepting the benefits paid. This is not a situation in which estoppel lies against the defendant. The Schedule “B” benefits should not have been collected by the plaintiff herein. I find that the defendant is entitled to the repayment of those benefits in full. Costs in favour of the defendant. will accept written submission if the parties cannot agree. Chief Justice Joseph P. Kennedy
The plaintiff was injured as a result of a motor vehicle accident. The defendant was found liable. At issue was the claim of the plaintiff against the defendant's insurer for Section B benefits. The defendant paid benefits for 129 weeks. It claimed that the plaintiff misrepresented her employment status at the time of the accident, and that the benefits should be re-paid. The plaintiff argued in response that the defendant was estopped from claiming repayment. Ordering the benefits be re-paid, that the defendant acted expeditiously to comply with its contractual obligation, on the basis of representations put forward on behalf of the plaintiff, to provide income replacement when the need was made apparent to it. It would be illogical to prevent the defendant from getting its money back when it is found that the benefits were paid on the basis of faulty information provided by the plaintiff. This is not a situation in which estoppel lies against the defendant.