Neutral Citation: 1995 ONICDRG 23
File No. A-008890
ONTARIO INSURANCE COMMISSION
BETWEEN:
CHRISTIANA BOACHIE
Applicant
and
MARKEL INSURANCE COMPANY OF CANADA
Insurer
DECISION
The Applicant, Christiana Boachie, claims that she was injured in a motor vehicle accident involving a Toronto Transit Commission ("TTC") vehicle on October 19, 1993. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. The Insurer contends that the Applicant was not injured in the accident. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The only issues in this hearing are:
Was the Applicant injured in the accident?
The Insurer seeks an award against the Applicant under subsection 282(11.2) of the Act, as amended.
Result:
The Applicant was not injured in the accident.
The Applicant is ordered to pay the Insurer $1,000.
Hearing:
The hearing was held in North York, Ontario, on February 9, 1995, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Insurer's
Brian Leck
Representative:
Barrister and Solicitor
Insurer's
Wendell Pilgrim
Officer:
Claims Adjuster
Neither the Applicant nor her representative appeared at the hearing.
Witnesses:
Wendell Pilgrim, TTC Claims Adjuster
Thomas Shepherd, TTC Operator
Exhibits:
Exhibit 1 Statement of the Applicant, January 6, 1994
Exhibit 2 Statement of Mr. Kwadwo Saka Mensah, November 23, 1993
Exhibit 3 Occurrence Report, October 20, 1993
Other documents before the Arbitrator:
Report of Mediator, dated March 31, 1994
Application for Appointment of an Arbitrator, dated April 4, 1994
Response by Insurer, dated May 6, 1994
Pre-hearing letter, dated August 19, 1994
The Insurer filed written submissions, dated February 10, 1995, on the issue of the section 282(11.2) award.
Preliminary issue:
The pre-hearing in this matter was held on August 18, 1994, at the Commission's offices in North York. The Applicant did not attend, but Michael Gillen, a lawyer, appeared on her behalf. At the pre-hearing, Mr. Gillen agreed, on behalf of the Applicant, to produce a number of documents to the Insurer. The hearing date was set for February 9, 1995, with both parties' agreement.
Following the pre-hearing conference, the Commission received a letter from Mr. Gillen, dated October 17, 1994, asking to be removed from the record. In an affidavit enclosed with his letter, Mr. Gillen deposed that he had been unable to contact Ms. Boachie at her last known address, and she had not communicated with him in respect of the pre-hearing.
Mr. Gillen advised Ms. Boachie of his action and provided her with a copy of his affidavit by letter dated October 17, 1994, also sent to her last known address.
The Commission advised Ms. Boachie, by letter of November 2, 1994, that Mr. Gillen had been removed from the record as her representative, and that "the hearing on February 9 will proceed as scheduled". That letter was mailed to a new address. I understand that Mr. Leck had obtained this address after the Insurer's mail was returned from the old address. The Commission sent a Notice of Hearing, dated August 23, 1994, to the new address; it was not returned.
The Applicant did not appear at the hearing. The matter was adjourned for 30 minutes, while a Commission caseworker attempted, unsuccessfully, to reach Ms. Boachie by telephone. The Applicant has not contacted the Commission directly at any time. No adjournment request was received.
The Insurer submitted that I should proceed with the hearing in the absence of the Applicant.
The Notice of Hearing sent to the parties states the following:
You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.
This is consistent with subsection 15(3) of the Dispute Resolution Practice Code and section 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.
I am satisfied that Ms. Boachie received notice of the hearing. Accordingly, relying on subsection 15(3) of the Practice Code, I proceeded with the hearing in the absence of the Applicant.
Background Facts and Issues:
A TTC bus was involved in a minor collision on October 19, 1993, while travelling westbound in the curb lane on Wilson Avenue in North York. A subcompact car was attempting to make a turn on a driveway or parking lot which abutted the roadway. The right front part of the car collided with the right (or "open") side of the bus, towards the back. The Applicant, Christiana Boachie, claimed that she was injured as a result of this accident. She claimed weekly income benefits and supplementary medical and rehabilitation benefits.
The only issue in the hearing was whether the Applicant was injured in the accident. At the conclusion of the Insurer's case, I made the following oral ruling:
I am not satisfied that the Applicant was injured in a motor vehicle accident on October 19, 1993. The application is dismissed.
My reasons follow.
Findings and Analysis:
Mr. Thomas Shepherd, the TTC operator who was driving the bus at the time of the accident, testified about the October 19, 1993 accident. According to Mr. Shepherd, the bus was full, but no one had to stand. The only passengers standing at the time of the accident were "three or four" people at the front of the bus who were waiting to get off at the next stop. Mr. Shepherd testified that there was no jolt when the collision occurred. In his words, it was not a "T-bone impact"; the car "grazed" the bus, and he heard a "scraping" sound. He did not brake suddenly, but slowed to a stop over the next 30 metres.
According to Mr. Shepherd, he set the brakes, stood up, and asked if anyone was injured. There was no response. He then opened the doors, and everyone left, except a Mr. Placido, a passenger who had seen the collision and stayed on the scene as a witness.
At this point, a man and a woman with a four or five-year-old child approached the (now open) front door from the rear of the bus. The man came up the stairs, asked for a transfer, and told the driver that he and the woman had been injured in the accident. Mr. Shepherd asked them to stay until the TTC inspector and the police arrived. He also offered to call an ambulance. The man replied that they would decide later if they were hurt. Mr. Shepherd asked the man for his name, address and phone number. The man refused to give an address, but gave his name (Kwadwo Saka Mensah) and phone number. When Mr. Shepherd directed the same questions to the woman, it was Mr. Mensah who responded, giving her name (Christiana Osei Boachie) and the same phone number, and refusing, again, to give an address. According to Mr. Shepherd, the woman did not speak during the entire exchange. Shortly afterwards, the three left.
Mr. Shepherd testified that he could not recall seeing these people on the bus before the accident, although he felt he had had a clear view down the length of the bus when he stood up and asked about injuries.
Mr. Shepherd handed in an Occurrence Report the next day (Exhibit 3).
Mr. Wendell Pilgrim, the TTC Claims Adjuster who handled the Applicant's claim, testified at the hearing. On November 23, 1993, Mr. Pilgrim interviewed Mr. Mensah at the office of Mr. Mensah's lawyer. He prepared a statement, which Mr. Mensah reviewed and signed in his presence.
Mr. Pilgrim interviewed Ms. Boachie at Mr. Gillen's office on January 6, 1994. Mr. Gillen's secretary was present and the Applicant was accompanied by a child of six or seven years. Mr. Pilgrim prepared a nine-page statement based on Ms. Boachie's comments during the interview. Mr. Gillen's secretary read the statement to Ms. Boachie, who then signed it in Mr. Pilgrim's presence. Ms. Boachie was provided with a copy of the statement.
In her statement, Ms. Boachie stated that she met Mr. Mensah for the first time on the bus, and they struck up a conversation: "I had never seen him before and have not seen him since". In his statement, Mr. Mensah stated that he "was travelling with a friend, Christiana Boachie". The phone number Mr. Mensah gave as his own in his statement is the same number he gave Mr. Shepherd for Ms. Boachie, and which Mr. Shepherd recorded for both complainants on his Occurrence Report. These discrepancies substantially undermine Ms. Boachie's credibility, in my view.
I am troubled by the fact that Ms. Boachie and Mr. Mensah were outside the bus when they approached the driver, and that Mr. Shepherd does not remember seeing them when he addressed the passengers following the collision. I also found Ms. Boachie's statement to be rather vague in her account of the number of passengers on the bus, amongst other details:
There were lots of people on the bus. I can't remember if all the seats on the bus were occupied. I think I saw. I don't think I can remember. The bus was not too much crowded. There wasn't anybody standing. The bus was not crowded.
However, my decision does not depend on finding that Ms. Boachie was not on the bus at the time of the accident.
I am satisfied that Ms. Boachie did not complain of any injuries when Mr. Shepherd addressed the passengers immediately after the accident. I accept that when Mr. Mensah made his complaint, several minutes later, Ms. Boachie said nothing, and appeared, to Mr. Shepherd, to be in no acute distress. At one point, while Mr. Shepherd and Mr. Mensah spoke, Mr. Shepherd observed that Ms. Boachie had picked up her child and now held her in her arms. According to Mr. Shepherd, she turned down his offer to call an ambulance. In her statement, she denied that he offered to call an ambulance. In any event, Ms. Boachie said in her statement that she resumed her bus trip after the accident.
Subsection 15(3)(b) of the Practice Code says:
An arbitration order shall not be made against a party solely on the failure of a party to attend at the hearing.
However, the onus is on the Applicant to prove her entitlement to benefits. In this case, no evidence was presented on behalf of the Applicant to substantiate her claim for benefits or explain the inconsistencies in the evidence. On the basis of the evidence put forward on behalf of the Insurer, I am not satisfied that Ms. Boachie was injured in this accident.
Insurer's expenses:
The Insurer submitted that the Applicant should be ordered to pay the Insurer an amount under subsection 282(11.2) of the Act. Mr. Leck advises that the Insurer paid a filing fee of $1,000 in responding to this application, and seeks reimbursement of this fee on the basis that this application was frivolous.
Subsection 282(11.2) provides as follows:
282.--(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.
I agree with Mr. Leck that the plain language of the section indicates that it is intended to reimburse the Insurer for no more than the cost of the filing fee actually paid in the case at issue.
Considering that the Applicant failed to comply with production requests identified at the pre-hearing conference, and that no evidence was presented on her behalf at the hearing, I have no hesitation in finding this application was frivolous. I find it appropriate in these circumstances to order the Applicant to reimburse the Insurer for its $1,000 filing fee.
Order:
The Applicant was not injured in the accident. The Applicant's claim is dismissed.
The Applicant is ordered to pay the Insurer $1,000.
March 15, 1995
Nancy Makepeace Arbitrator
Date