Neutral Citation: 1995 ONICDRG 121

File No. A-007652

ONTARIO INSURANCE COMMISSION

BETWEEN:

NEIL WILSON

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Issues:

The Applicant, Neil Wilson, was injured in a motor vehicle accident on November 4, 1990, when he walked into the side of a car insured by State Farm Mutual Automobile Insurance Company ("State Farm"). Mr. Wilson applied for and received statutory accident benefits from State Farm, payable under Ontario Regulation 672.¹ State Farm terminated the benefits almost three years after the accident, partly as the result of information obtained from surveillance. Mr. Wilson sought to have the benefits reinstated. The parties were unable to resolve their dispute through mediation, and Mr. Wilson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing proceeded to deal with a preliminary issue on identification of Mr. Wilson in a number of surveillance videotapes.

The tapes at issue became fewer in number during the course of the hearing, until only the taping on September 15, 1993, was at issue.

The preliminary issue is:

1. Was Mr. Wilson taped on September 15, 1993, as recorded on Exhibit 5?

Mr. Wilson also claims his expenses incurred in the hearing.

Result:

1. Mr. Wilson is one of the persons taped on September 15, 1993, as recorded on Exhibit 5.

2. Mr. Wilson is not entitled to his costs of the hearing on the preliminary issue.

Hearing:

The hearing was held in North York, Ontario, on July 26 and 27, 1995, before me, David Evans, arbitrator.

Present at the Hearing:

Applicant:

Neil Wilson

Applicant's Representative:

Harvey Consky

Barrister and Solicitor

State Farm's Representative:

Eric Grossman

Barrister and Solicitor

State Farm's Officer:

Fatima Jan Mohamed

Witnesses:

Fatima Jan Mohamed

Brian McKay

Leo Noel

Troy Lewis

Neil Wilson

Other persons present:

Angie McGowan

Russ Ward

Court Reporter:

Moira Freshwater (day 1)

Anne Brant (day 2)

Exhibits:

Exhibit 1

Calibre Investigation Report dated September 21, 1993 (Tab 10, Insurer's Arbitration Brief)

Exhibit 2

Video print from videotape taken September 15, 1993, at 1:36 p.m.

Exhibit 3

Video print from videotape taken September 15, 1993, at 1:41 p.m.

Exhibit 4

Video print containing four stills from videotape taken September 15, 1993, from 1:37 p.m. to 1:41 p.m.

Exhibit 5

Videotape by Calibre Investigations Ltd., marked '1,' taken September 14 and 15, 1993.

Exhibit 6

Videotape filmed by Phoenix Inv. for Calibre Investigations in Toronto in January 1994.

Exhibit 7

Videotaped filmed by Calibre Investigations Ltd. in New Brunswick in January 1994.

Exhibit 8

Copy of Report by Calibre Investigations to State Farm dated January 26, 1994 (Tab 11, Insurer's Arbitration Brief).

Exhibit 9

Video print from videotape taken January 16, 1994, at 12:35 a.m.

Exhibit 10

Video print from videotape taken March 30, 1994, at 12:00 p.m.

Exhibit 11

Video print from videotape taken March 30, 1994, at 12:01 p.m., showing Neil Wilson, his brother, and Troy Lewis.

Exhibit 12

Photograph of wedding album photograph of Neil Wilson and his wife facing the camera.

Exhibit 13

Photograph of wedding album photograph of Neil Wilson and his wife looking stage left.

Exhibit 14

8x10 enlargement of Exhibit 12.

Exhibit 15

Letter by Brian McKay of Calibre Investigations to Fatima Jan Mohamed of State Farm dated March 8, 1994 (Tab 12, Insurer's Arbitration Brief).

Exhibit 16

Letter by Brian McKay of Calibre Investigations to Fatima Jan Mohamed of State Farm dated May 2, 1994 (Tab 13, Insurer's Arbitration Brief).

Exhibit 17

Letter by William J. McNichol of the law firm Chase Sheehan to Barb March of State Farm dated April 5, 1994 (Tab 14, Insurer's Arbitration Brief).

Exhibit 18

Annotated copy of Exhibit 1.

Exhibit 19

Annotated copy of Exhibit 8.

Exhibit 20

Copy of Motor Vehicle Accident Report for the accident dated November 4, 1990.

Exhibit 21

Highlighted copy of log notes of Barb March dated October 6, 1993.

Evidence and Findings:

Background

The Applicant, Neil Wilson, testified that at about 11:30 p.m. on Saturday, November 3, 1990, he went to a nightclub in Scarborough where he drank approximately three bottles of beer with his employees. According to the police report,² on Sunday, November 4, 1990, at approximately 1:45 a.m., Mr. Wilson walked into the side of a car owned and driven by Hector Aguayo while crossing Kennedy Road in Scarborough from east to west.

Mr. Wilson testified that he broke his right leg below the kneecap, smashed his ankles, and suffered other injuries. As Mr. Wilson had no automobile insurance of his own, he applied to Mr. Aguayo's insurer, State Farm, for weekly income benefits under section 12 of the Schedule. Because Mr. Aguayo had purchased an optional benefit package from State Farm, Mr. Wilson was able to claim and in fact received a weekly income benefit of $1,050.

At the time of the accident, Mr. Wilson lived in Scarborough. He testified that he returned to his native New Brunswick in September 1992.

Fatima Jan Mohamed handled Mr. Wilson's claim in State Farm's Toronto office. She testified that she instructed State Farm's claims handler in the New Brunswick office, Barb March, to investigate Mr. Wilson's activities in September 1993.

Barb March hired Calibre Investigations. Brian McKay, president of Calibre Investigations, testified that over the course of September 14 and 15, 1993, he videotaped a mustachioed individual he believed to be Neil Wilson, working at the property where Mr. Wilson was living with his then-fiancee and her children. In particular, Mr. McKay taped the person he thought was Mr. Wilson working in the "baby barn" — a barn-like building common in New Brunswick — alongside one or two other men. Several woodworking machines had been set up in the baby barn, and at various points the men operated the machines and handled pieces of wood or plywood. Mr. McKay reported his findings to Barb March.

Exhibit 21 is a portion of the claim activity log of Barb March. The following appears for her entry at 9:10 a.m. on October 6, 1993 :

Spoke to [claimant] — advised him we had learned their [sic] was a business going on in his premises. He said there was but that it was owned by his fiancee & he has nothing to do with it. Registered as Little River Doors (Cabinet Doors). Says she employs 3 people but he's not one of them. Explained 3 y[ea]r period coming up & if he was able to be gainfully employed at the 3 y[ea]r point his benefits no longer applied plus if we could prove he was working prior to we could come back to collect the overpayment back. He just had arthroscopic surgery last week — says he's not stupid enough to be working & collecting our benefits at the same time.

Mr. Wilson did not deny the essence of the conversation or its contents.

Ms. Jan Mohamed testified that after hearing from Barb March, she found it difficult to believe that Mr. Wilson was still disabled. She terminated Mr. Wilson's benefits.

Ms. Jan Mohamed testified that in her subsequent conversations with Mr. Wilson, he denied that he was the person depicted on the videotapes, suggesting at various times that it was either his brother or another employee. Ms. Jan Mohamed participated in the mediation in this matter held in Toronto in January, 1994. At that time, Mr. Wilson told her that he was not involved in his wife's business, and that it was his brother who was taped in the baby barn. On other occasions, Mr. Wilson suggested that an employee, Troy Lewis, had been taped.

Because of Mr. Wilson's allegation that the wrong person had been taped, Ms. Jan Mohamed instructed Mr. McKay to conduct further surveillance. Mr. McKay used the opportunity of Mr. Wilson's attendance at the Toronto mediation to have him taped in Toronto³ and again on his return to New Brunswick.⁴ Mr. McKay also watched the Wilson property during Mr. Wilson's absence. Mr. McKay testified that he observed no activity in the baby barn while Mr. Wilson was out of the province. In his report to Barb March dated January 26, 1994,⁵ Mr. McKay states that the only people he saw at the Wilson residence on Friday, January 14, 1994, were Mr. Wilson's now-wife and her children; no brother or other employee appeared.

Mr. McKay was instructed to meet with Mr. Wilson. Mr. McKay testified that at this meeting, which eventually took place at Mr. Wilson's home on March 30, 1994, he met and videotaped — with their consents — Mr. Wilson, Mr. Wilson's brother, and Troy Lewis. Mr. McKay testified that he had never previously videotaped either of the other two men, and that he first saw Troy Lewis that day.

None of the men wore mustaches at this meeting. Nonetheless, Mr. McKay testified that, even though Mr. Wilson was now clean-shaven, and his haircut and glasses were different from those of the individual in the videotapes, he recognized Neil Wilson immediately as the person he had taped. Mr. McKay testified that, as he came into the house, the person he had videotaped responded to Mr. McKay's "Hello, Neil."

Several video stills from that session were put into evidence.⁶ In Exhibit 11, one sees three men seated on a couch looking straight ahead, with the camera angled approximately 45 degrees from their focal point, so that one can see the fronts of their faces and their left profiles. Mr. Wilson identified himself as the person wearing the complete back brace on the left side of the picture, with his brother seated in the middle, and Troy Lewis seated on the far right of the couch.

Mr. McKay testified that shortly after he left the Wilson house, he returned to obtain any family photos of Mr. Wilson that he could. In his report to Ms. Jan Mohamed dated May 2, 1994, ⁷Mr. McKay wrote as follows:

When I entered into the front of the residence, after a child opened the door, I observed the subject in the lower half of his split-level residence, running from one room to the other in a quick fashion, and it did not appear as though he had his back brace on.

Mrs. Wilson then let Mr. McKay photograph several pictures from Mr. Wilson's wedding album.⁸ Mr. Wilson admitted that the wedding pictures were taken some six and a half weeks after the September 1993 surveillance. Mr. Wilson wears a mustache in the wedding pictures.

Ms. Jan Mohamed testified that she discussed the identification issue further with Mr. Wilson at the pre-hearing. After the pre-hearing, the parties involved watched the tapes made in September 1993 and January 1994. Again, Mr. Wilson adamantly denied that he was on the tapes, and said it was an employee who had been taped.

The Hearing

By agreement, the hearing proceeded in reverse order, with Mr. Grossman, counsel for State Farm, presenting his evidence on identification first, and Mr. Consky, counsel for Mr. Wilson, presenting his reply evidence second. Mr. Grossman advised that he had understood the matter would end if I found that the individual who had been taped in September 1993 and January 1994 was indeed Mr. Wilson. However, Mr. Consky, who recently assumed conduct of the file, advised that even if I agreed with State Farm on the identification issue, his client would nonetheless proceed with his claim for benefits. The medical evidence will be presented later, as this preliminary hearing dealt only with the identification issue.

Ms. Jan Mohamed set the background for the file by testifying first, following which Mr. McKay described the surveillance and played the tapes. Mr. Leo Noel, Mr. McKay's employee, also gave evidence about his observations.

At the end of Mr. McKay's evidence, Mr. Consky advised me that Mr. Wilson no longer disputed the January 1994 videos, leaving only the surveillance tape of September 14 and 15, 1993, in dispute. (Both days appear on the same tape, Exhibit 5.)

Troy Lewis, sporting a mustache — as did Mr. Wilson — testified at the end of the first day of the hearing. He gave some confusing evidence about how he came to be at the Wilson residence, stating that he lived there for three months but only worked in the baby barn for two weeks in September — the period coinciding with the surveillance. He testified he knew it was himself on the video and stills from September 15 because of his pink T-shirt with the words "Puerto Vallarto" on it, and also because he remembered what he was doing that day.

Mr. Wilson testified the morning of the second day of the hearing.

After Mr. Wilson testified, Mr. McKay returned to the stand in rebuttal. His evidence focussed on the physical differences between Mr. Wilson and Troy Lewis. Mr. McKay pointed out that Mr. Wilson has a more receding jaw line than Mr. Lewis. Mr. Lewis' more dominant jaw line comes to a point, whereas Mr. Wilson's starts at the ear, rounds down to the chin, and then rounds up to the nose. Mr. McKay described the side of Mr. Lewis' head as a more "teardrop" shape in comparison with the somewhat squarer shape of Mr. Wilson's head. Mr. McKay also pointed out that Mr. Lewis has bigger ears, a higher neck and a lower shoulder line than Mr. Wilson. I note that most of the differences described are plain in Exhibit 11, the "lineup" video print, where the differences in head shape between Mr. Wilson on the left and Mr. Lewis on the right are quite clear.

Mr. McKay stopped the September 14 portion of the videotape at the point marked 9:22 a.m. (approximately 1'54" into the tape), to examine the profile of the individual depicted. I found it quite instructive to see the profile on the tape, which I note exactly matched Mr. McKay's description of Mr. Wilson. I was also able to observe Mr. Wilson's profile and demeanour in the hearing room.

During the lunch break counsel for Mr. Wilson reviewed the tape with his client. When the hearing was reconvened, counsel advised me that Mr. Wilson now believed the September 14 portion did indeed show him in the baby barn.

Thus, the only remaining surveillance tape which Mr. Wilson disputes is that recorded on September 15, 1993.

Conclusion

The portion of the tape made on September 15, 1993, starts at 1:21 p.m. (5'46" into the tape). The open doors of the baby barn's second floor fill the centre of the frame, and over the next few minutes two men carry out a number of activities. One of them sports a mustache and a pink t-shirt. I reproduce a portion of the contemporaneous notes made by Mr. McKay and reproduced in Exhibit 1 on page 11, which I find to be an accurate depiction of the events recorded:

At approximately 1:21pm the subject approached the doorway bent slightly at the waist. The subject then bent fully at the waist and placed each hand on a knee while looking down towards the ground. He remained this way for several seconds before returning upright. The subject's shirt became legible and the words "Paraiso Tropical Puerto Viarto [sz'c]."

At approximately 1:27pm the subject was observed assisting a second person to carry a large sheet of what appeared to be plywood that measured approximately 4' X 4'. He then walked over to the door area, and with his right hand, opened the other door while simultaneously balancing the sheet with his left hand. He then used both hands as he bent at the waist and lowered the board out the door to male no. 2 on the ground.

I have compared the image of Mr. Wilson as he appears on the tape of September 14 and on the January 1994 tapes with the image of the person in the pink t-shirt taken on September 15. I can see no difference. I am convinced that Mr. Wilson is depicted on the September 15, 1993 tape. I have compared the wedding picture where Mr. Wilson faces the camera⁹ with the video print from 1:36 p.m.,¹⁰ which shows a face from nearly the same angle: the hair parting shows the same triangular portion of forehead; the hair covers half the right ear in the same way; the glasses, although fuzzy in the video print, appear to be the same; and, of course, the mustache looks the same.

Again, Mr. Wilson as seen in Exhibit 9, the video print where he is shown coming out of the New Brunswick airport at 12:35 a.m. on January 16, 1994, carries his head and his shoulders in almost precisely the same way as the person captured at 1:37 p.m. on September 15, 1993, as shown in the top left quadrant of Exhibit 4. Although no profiles on September 15 are as clear as those taken on September 14, I noticed several shots at 1:35 p.m., 1:36 p.m. and 1:39 p.m. where the individual seems to have the same chin profile as Mr. Wilson. One profile at 23 minutes and 14 seconds into the September 15 tape shows the individual at the same angle as one sees Mr. Wilson in Exhibit 11 (the "lineup" video print); again, the resemblance is strong.

Even if I did not trust my eyes, I would prefer the evidence of Mr. McKay over that of Mr. Wilson. Eventually, Mr. Wilson admitted that Mr. McKay had correctly identified him on September 14, 1993, and on the trip to and from Toronto; am I to believe that Mr. McKay could not distinguish Mr. Wilson on September 15? Mr. McKay also testified that he confirmed his observations with binoculars, so he observed Mr. Wilson more closely than is seen on the video and video prints. I also find that Mr. Wilson's credibility was diminished considerably after he was forced to admit that he was indeed taped in the baby barn on September 14, 1993.

In light of this evidence, I find that Mr. Wilson is depicted on the videotapes of September 15, 1993.

Although that is the only issue I had to determine in this preliminary hearing, I trust Mr. Wilson will consider carefully before proceeding further. I have not set out in detail evidence I heard about Mr. Wilsons participation in his wife's business. I have not dealt with the information Mr. McKay had obtained from other parties to the effect that Mr. Wilson had been supplying cabinet doors for three months prior to the surveillance. Mr. Wilson sought to rebut this information in a way I can only describe as cursory and unconvincing. I have not dealt with the fact that in the videos, Mr. Wilson is shown to move easily and with no apparent restriction.

Expenses

Mr. Wilson admitted after half a day of hearing that he appears in the January 15 and 16, 1994, tapes. He only conceded after the hearing was almost over that he was the person taped on September 14, 1993. If Mr. Wilson had at least admitted these facts from the beginning, the hearing would have been considerably shorter. More importantly, if Mr. Wilson had acknowledged that he was the individual depicted on the tapes, this hearing would not have been necessary.

I decline to award Mr. Wilson his expenses of this hearing.

Order

1. Mr. Wilson is one of the persons taped on September 15, 1993, as recorded on Exhibit 5.

2. Mr. Wilson is not entitled to his expenses of this hearing.

September 5, 1995

David Evans

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 21.
3. 3Exhibit 6
4. 4Exhibit 7
5. 5Exhibit 8
6. 6Exhibits 10 and 11.
7. 7Exhibit 16
8. 8Exhibits 12, 13 and 14.
9. 9Top half of Exhibit 12, and blown up to 8x10 in Exhibit 14.
10. 10Exhibit 2