Neutral Citation: 1995 ONICDRG 84
File No. A-008975
ONTARIO INSURANCE COMMISSION
BETWEEN:
OANH THI NGUYEN
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Oanh Thi Nguyen, alleged she was injured in a motor vehicle accident on June 11, 1993. She applied for statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 The Insurer, Pilot, refused to pay benefits on the ground that Mrs. Nguyen was not an occupant of the insured vehicle, and therefore would not meet the definition of "insured person" in the Schedule. The parties were unable to resolve their disputes through mediation, where the only discussions were on the preliminary matter of whether or not Mrs. Nguyen was an occupant of the insured vehicle. The Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. It was agreed by the parties that the hearing would be solely on the issue of occupancy.
The issue in this hearing is:
- Was Mrs. Nguyen an "insured person" under the Schedule, in that she was an occupant of the insured vehicle at the time of the accident?
Mrs. Nguyen also claims interest on any amounts owing, and her expenses incurred in the hearing.
Result:
- I find that Mrs. Nguyen is not an "insured person" under the Schedule, in that she was not an occupant of the insured vehicle at the time of the accident.
Hearing:
The hearing was held in Kitchener, Ontario, on Tuesday, April 18, 1995, before me, David Evans, arbitrator. Oral submissions were heard by teleconference on April 19, 1995.
Present at the Hearing:
Applicant:
Oanh Thi Nguyen
Applicant's
Michael J. Gillen
Representative:
Barrister and Solicitor
Insurer's
Grant Black
Representative:
Barrister and Solicitor
Assisting
Mr. Black
Ms. G. Pang
Translator:
Wayne Vu
Witnesses:
Mrs. Nguyen
Hoa Khac Le
Ms. Lieu Xuan Pham
Sebastian Yantz
Constable Brian McIlravey
Exhibits:
Exhibit 1
Drawing by Mrs. Nguyen of a truck
Exhibit 2
Statement given by Hoa Khac Le on February 7, 1994
Exhibit 3
Photograph of an automobile
Exhibit 4
Diagram of the motor vehicle accident scene
Exhibit 5
Motor vehicle accident report
The Law:
Mrs. Nguyen claims that she is an "insured person" who was involved in an "accident." Both terms are defined in section 2 of the Schedule as follows:
"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;
"insured person," in respect of a particular motor vehicle liability policy, means,
(a) in respect of accidents in Ontario, an occupant of the insured automobile,
(b) in respect of accidents outside Ontario, a person living and ordinarily present in Ontario who is an occupant of the insured automobile,
(c) the named insured, his or her spouse and any dependant of either of them while the occupant of any other automobile,
(d) any person who is not the occupant of an automobile or of rolling stock that runs on rails who is involved in an accident in Ontario involving the insured automobile,
(e) the named insured, his or her spouse and any dependant of either of them who is not the occupant of an automobile or of rolling stock that runs on rails who is involved in an accident,
(f) the named insured, his or her spouse and any dependant of either of them who is not involved in an accident but who suffers psychological or mental injury as the result of an accident involving a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother or sister or a dependant of the named insured or of his or her spouse.
The parties agree that the vehicle Mrs. Nguyen claims she was in was an insured vehicle. It is clear that the only possible part of the definition of "insured person" that could apply to Mrs. Nguyen is that in clause (a). Therefore, if Mrs. Nguyen was not an occupant of the insured vehicle, she would not be an "insured person" under the Schedule and would not be entitled to any accident benefits under the Schedule.
Evidence and Findings:
The hearing proceeded on one question alone: whether or not Mrs. Nguyen was an occupant of a car that was hit by a truck on June 11, 1993.
Some facts about the accident were not disputed by the parties. At around 5:25 p.m. on Friday, June 11, 1993, Constable Brian McIlravey was walking his beat westbound on King Street in Kitchener. When he came to the intersection of King and Ontario Streets, he saw to his left a 1986 GMC pick-up stopped, facing north on Ontario Street. Constable McIlravey noticed the driver of the pick-up was not wearing a seat belt, so he stopped and spoke with him. The driver had no identification but introduced himself as Sebastian Yantz, a delivery person for JMW Automotive, who was driving the company pick-up. Constable McIlravey ran a CPIC check, and planned to give Yantz a ticket for not wearing a seat belt. He wanted Yantz to move the truck to free up traffic, so Yantz, who admitted that at this point he was flustered and upset, reversed — hitting a car that was behind and to the right. Neither Constable McIlravey nor Yantz had seen the car.
Yantz had hit the left rear quarter panel of a 1983 Toyota of a colour that the witnesses described variously as grey, green or blue (the Vietnamese word for the colour is "xanh," which in that language can mean either green or blue). After the accident, Hoa Khac Le, the car's owner, could not distinguish between the damage caused by this accident and that caused by a recent earlier accident.
One of the few other undisputed facts is that Lan Nhu Dinh, a friend of Le's, had been driving Le's car.
Le was not driving, he said, because of his injuries from the recent earlier car accident. (Le testified he was already receiving benefits from an insurer because of that earlier accident, and had used the services of a lawyer and a doctor in making his claim.)
I note that Lan Nhu Dinh did not testify. Le alleged that Dinh now lives in Vancouver.
Le and Mrs. Nguyen claim that Mrs. Nguyen was a passenger in the back of Le's car. Both Yantz and Constable McIlravey deny seeing anyone in the car other than the two men.
Briefly, Mrs. Nguyen says that Le (with Dinh driving) had picked her up from her home to go to Long Van, a grocery store. She and her witnesses stated that the accident happened on the way back from the grocery store. She says she exited the car shortly after the accident, and sat at the corner of King and Ontario Streets. Her acquaintance, Lieu Pham, happened to be driving along King, saw her, stopped and, after asking what had happened, took Mrs. Nguyen home. About two weeks after the accident, Le and Dinh drove Mrs. Nguyen to Toronto to talk with Le's lawyer. Mrs. Nguyen says she told Le's lawyer she had aches and pains, so the lawyer suggested she see a doctor. Le and Dinh then took her to Le's doctor — this was her first visit to a doctor with respect to this accident. About five months after the accident, Mrs. Nguyen made her claim to Pilot.
Because this case turns entirely on credibility, and to point out conflicts in the evidence, I will now set out in more detail the witnesses' testimony.
OANH THI NGUYEN:
Oanh Thi Nguyen was born in Haiphong in Viet Nam 29 years ago and came to Canada in 1990. In June of 1993 she was separated from her husband and living with her son on welfare.
She had known Hoa Khac Le in Viet Nam. She stated they were not close there, and that they met again at his friend's house in Kitchener, after she came to Canada.
In her chief examination, Mrs. Nguyen said that on June 11 Le called around 10 or 11:00 a.m. to say he was going to Long Van and he asked her if she wanted a ride. In cross-examination, she stated that Le called to say he was going out, at which point she asked him for a ride to Long Van. In any event, Le and Nhu Dinh arrived around 3 or 4:00 p.m. Mrs. Nguyen said she had never met Dinh before that day.
They drove to Long Van, where Mrs. Nguyen says she shopped for about 25-30 minutes for some vegetables and dried foods, while the two men waited in the car. Mrs. Nguyen did not remember exactly how many bags she had when she left, either two or three. She stated that she put them at her feet in the back of the car.
Mrs. Nguyen stated that on the return drive she was in the middle of the back seat, but more oriented toward the passenger's side. She was not wearing her seat belt. They drove 15 or 20 metres along Ontario Street to its intersection with King Street, and came to a stop behind a small truck. The truck then backed up and hit the car near the left rear door.
She stated that the force of the impact threw her so that her head and shoulder hit the right side of the car.
She yelled out after the impact, and then someone, she does not remember whether it was Dinh or Le, took her out of the car. She thought about two or three minutes passed from the time of the impact until she got out. She admitted in cross-examination that she was dazed and dizzy after the accident. Nevertheless, she remembered that she got out on the passenger side, because she got out at the curb and stepped on the curb.
Mrs. Nguyen claims that after she left the car, she went and sat at the wall of a house at the intersection. She stated that it was only at that point that she saw the officer standing beside the truck and then the driver of the truck. She noticed the men bending down to look at the car and its damage.
Mrs. Nguyen did not complain or report her injury to the police, nor did she ask for an ambulance or medical attention at the scene.
Mrs. Nguyen said she had been sitting at the intersection for four or five minutes when her friend Lieu Pham, who had been driving along King Street, saw her, stopped, and came over to ask what had happened. Mrs. Nguyen explained she had been in an accident, and asked for a drive home. She stated that Lieu Pham helped her into her own car, which she had parked at the curb on King Street. At the time Mrs. Nguyen left, she was not paying attention to the scene, although she saw the men from her car walking toward the truck.
When she went home after the accident, she just used a few medications for her head. She told Le about her injuries from the accident. Le knew a lawyer in the Toronto area, and Nhu Dinh drove her and Le from Kitchener to Toronto. The lawyer asked how she was feeling. She told him she had pain and her head hurt. The lawyer said that if she was in pain, she should see a doctor and get medications. Dinh then took Mrs. Nguyen to see the doctor the same day that she saw the lawyer. This was two weeks after the accident.
In cross-examination counsel asked Mrs. Nguyen many questions about her relationship with Lieu Pham and Le. Mrs. Nguyen stated she had known Lieu Pham in Haiphong for two or three years. They saw each other once or twice a month in Kitchener before the accident, when they would talk and say hello at a favourite food store or at church. Mrs. Nguyen stated Lieu Pham was not a close friend but was only an acquaintance.
Mrs. Nguyen said that she did not know where Le lived. He had given her his phone number if she needed anything, but she said she called him once or twice to say hello, not because she needed anything from him. She stated she did not know if Le had ever been in a previous accident.
With respect to her interest in this application, she stated in reexamination that welfare is aware of the claim. My understanding of her testimony and of the submissions of her counsel is that welfare will deduct any benefits she obtains from her insurer from her welfare payments.
HOA KHAC LE:
Hoa Le, born and raised in Haiphong, Viet Nam, came to Canada in 1991. He had known Mrs. Nguyen in Viet Nam since 1986 or 1987, then he renewed his acquaintance with her in the five or six months before the accident.
In June 1993, Le owned a greyish-green 1983 Toyota, identified by him in Exhibit 3. He said that on June 11, 1993, he telephoned Mrs. Nguyen around 2:00 p.m. to socialize, and she asked him if he could take her to Long Van to buy something. With Lan Nhu Dinh driving, he picked her up around 3:00 p.m. He stated that Dinh is now living in Vancouver. They drove her to Long Van, waited about 35-40 minutes while Mrs. Nguyen completed her shopping, and then Mrs. Nguyen got in the back seat. Le said he was sitting in the front next to the driver, Dinh.
They drove north on Ontario Street, and stopped at a red light at King Street. Le saw a truck stopped on the left-hand side and a police officer (or at least his arm and cap) signalling for the truck to back up. The truck backed up, and hit the left side of Le's car near the right rear tire.
After the collision, he saw the police officer raise his arm and say something to the other driver. Then the driver of the truck got out, came to their car, and looked at the damage. Le says it was after the driver had come to the car that he and Dinh opened the right rear door for Mrs. Nguyen to get out. She sat at the corner of the intersection close to his car, about three metres away. Then, while he and Dinh waited to talk to the officer, who was talking with the pick-up driver, Le saw a woman approach Mrs. Nguyen, talk with her, and leave the scene with her. Le said that he did not understand very much when he talked with the officer, who did not ask who was in the car. Le did not tell him who was in the car.
In cross-examination, counsel asked about the evidence Le gave on the day of the hearing and what was written in a statement taken at Mr. Gillen's office on February 7, 1994 (exhibit 2). In the statement, Le says he was sitting behind Nhu [Dinh], and Oanh [Nguyen] was sitting to his left on the back seat. At the hearing, Le insisted that he was sitting in the front beside Dinh, and Mrs. Nguyen sat behind him. He said that by "next" he meant that Mrs. Nguyen was behind him. In his statement, Le said that Nhu got out and opened the rear driver's door for Mrs. Nguyen to get out. At the hearing, Le insisted that the statement was incorrect: both he and Dinh were there to open the passenger's door for Mrs. Nguyen. He did not remember who exactly opened the door.
The statement also says it was 15 minutes before the woman showed up and took Mrs. Nguyen home. At the hearing, Le insisted it was less time than that.
Le said that he was not driving that day because he had been in an accident a short time earlier and was not feeling well. He had made a claim to his insurer for that accident, so he did not make a further claim for this accident. He did not remember for how long or how much he was paid. He simply knew that every month they sent a cheque to his lawyer, and in turn he got $520 from it.
LIEU XUAN PHAM:
Lieu Pham knew Mrs. Nguyen in Viet Nam, and has known her for about six or seven years. Since Ms. Pham arrived in Canada, she would meet Mrs. Nguyen at the grocery store and at the church in Kitchener, but she stated that they did not otherwise socialize.
She remembered that on the afternoon of the accident, she was driving east along King Street in downtown Kitchener when she saw Mrs. Nguyen sitting and crying at the corner of King and Ontario Streets. Lieu Pham stopped her car and asked Mrs. Nguyen what had happened. Mrs. Nguyen said she was in an accident, did not feel well, and wanted to go home, so Lieu Pham took her home. While Lieu Pham was stopped, she did see a car on Ontario Street, but she did not remember what the car looked like except that it was sort of grey. She remembers two men, but she did not know the men or recall what they looked like, other than the fact that they were Asian. She could not identify any person in the hearing room as one of the men.
In cross-examination, Lieu Pham said she could not be sure of the exact time of the accident. She did agree that a Friday afternoon at 5:30 p.m. would be a busy time of day with lots of traffic. She agreed that as she was driving, she was watching the traffic lights on King, and making sure the traffic lights were green. She stated that when she stopped on King she did not look for a parking spot, but just parked in front of a fire hydrant.
Ms. Pham did not see Mrs. Nguyen after that day for some time. About four or five months later, she called Mrs. Nguyen to see how she was doing. She has seen her about four or five times since the accident, in the grocery store or on weekends.
SEBASTIAN YANTZ:
Sebastian Yantz delivered for JMW Automotive (he no longer works for them). At the time of the accident, he was driving the company pick-up. His was the first vehicle stopped facing north at a red light at the intersection of King and Ontario Streets. While he was stopped, a police officer who was walking west down King approached him. The officer asked him why he had no seat belt on. The officer then asked for documentation such as his driver's licence, ownership and insurance. Yantz did not have any documentation with him.
Yantz was blocking traffic on Ontario, and he thought the officer wanted him to back up to stop blocking traffic. Yantz backed up without looking and hit an early model Toyota that was behind him. The officer said nothing to indicate there was a vehicle behind him. Since Yantz slammed the truck in reverse and backed up, he doubted the officer would have had time to warn him of the car if he had seen it.
From the time he first saw the officer until he backed up a couple of minutes had elapsed. He was flustered by then, and a little upset that he was going to get a ticket.
After the collision, and before the officer moved, the officer said something like: "Look what you did, you backed into that car." Next, Yantz followed the officer to look at the damage. He got out of his truck and walked south on Ontario to assess the damage to the vehicles, taking roughly 10 seconds to get to the back of his truck. He saw that the Toyota he had hit had backed up, and that there were two men in its front seat. Yantz walked to within three to five feet of the Toyota, and possibly closer, to look at the damage. The officer walked with him to inspect the damage. The pick-up had damaged the rear quarter panel on the driver's side. Yantz believed he looked at the damage by bending down. The car was light green or maybe a beige, but he was not sure.
The officer asked the men in the car to step out at a certain point, and after they got out, they went to the west side of the corner of Ontario and King. Yantz did not talk with them.
Yantz then sat on a bench on Ontario Street facing the scene. He could see the Toyota in front of him and the truck to his left. Yantz said no one else was involved in the accident, and he denied seeing Mrs. Nguyen at the scene at anytime.
In cross-examination, counsel asked Yantz about a statement he gave to Pilot. Pilot insured neither Yantz nor JMW Automotive. Some months after the accident, Yantz received a message at work that somebody at Pilot wanted to talk with him. Yantz went in and met a person who said that someone was making a claim for the accident, and that they needed a statement about what happened. His impression was that the insurer did not believe the claim, and they wanted to know if a woman had been in the car.
Yantz admitted the accident happened late in his day and that there were lots of people on the street. He insisted he saw only two males in the car. He could not remember what the males looked like.
He agreed that from the moment of impact until he got out of his cab, he would not have seen someone get out of the Le vehicle, but he stated they would have had to be "pretty quick" to do it.
CONSTABLE MCILRAVEY:
I have described how Constable McIlravey came to talk with Yantz and observe the collision. Constable McIlravey testified that Yantz appeared frustrated and abusive. He was yelling and looking at Constable McIlravey as he backed up.
Immediately after the collision, Constable McIlravey walked along the side of the truck to the back to see what was behind. He did not remember saying anything else to Yantz immediately after the impact and before heading toward the back of the truck. Once he got to the back of the truck, he observed Le's Toyota backing up away from the truck. Constable McIlravey was quite definite that the Toyota was still moving when he first saw it. He thought the time from impact to the time he saw the Toyota was about five seconds. Constable McIlravey said the impact was very minor, at most at five to 10 km per hour, and Yantz's vehicle had travelled 10-12 feet before impact.
Two men were in the front seat of the car and, after the car had stopped, the two men got out without being asked. Constable McIlravey approached the driver and asked for his driver's licence. The driver said his name was Nhu Dinh of Kitchener and that the passenger Le owned the car. Le produced the ownership and insurance. Constable McIlravey observed no one else in the vehicle, nor did he see Le or Dinh help anyone out of the car at any point. He could not remember the conversation in particular, nor whether the men's knowledge of English was limited.
Constable McIlravey inspected the back of Le's 1983 blue Toyota four-door, where he observed the damage to the back left quarter panel. Le said that he had an earlier accident with the car, and he did not know what damage this accident caused.
When asked if it were fair to say that if there was anyone else in the car they got out very quickly, Constable McIlravey replied: "Unlikely. If they did, I would have seen them."
CONCLUSIONS
I find the evidence of the witnesses for the Insurer more convincing than the evidence of Mrs. Nguyen and her witnesses.
Mr. Gillen suggested that Mrs. Nguyen had no motive to fabricate, in that she knew any benefits she receives from Pilot will be deducted from her welfare. However, he also suggested that I should be careful in making inferences from her actions, such as not talking to police, because she is a recent immigrant, and is unsophisticated regarding Canadian culture and mores. These submissions seem to me to be contradictory, because on the one hand, I am to assume she is unfamiliar with Canadian customs and society, but on the other hand, I am to assume she is familiar with a complicated point of law. I am not willing to assume that Mrs. Nguyen knew, at the time of her claim to Pilot, that she would not retain the benefit of her claim. Depending on the amount of welfare, she may retain some benefit in any case. As for continuing with the claim, I note that the fraud unit has investigated the claim. Perhaps preventing a fraud charge would provide a motive for continuing with the claim.
The evidence also satisfies me that Mrs. Nguyen and her witnesses have a closer relationship than they admitted. In particular, I note that Mr. Le went to the trouble of taking Mrs. Nguyen to his lawyer and doctor two weeks after the accident.
Mr. Gillen suggested that I disregard Le's written statement, allowed into evidence, in that Mr. Gillen's employee possibly inexpertly translated it. However, the statement contains inconsistencies with Mr. Le's testimony at the hearing that I find difficult to disregard. I might have been prepared to ignore two possible inconsistencies. At the start, Le says in his statement that he had offered to take Mrs. Nguyen out shopping, whereas Mrs. Nguyen and Le in their testimony stated that she was the one who asked to be taken shopping. This could be a translation problem or simply a different way of wording what happened regarding the request. Similarly, the statement suggests that Le was sitting behind Nhu, and Mrs. Nguyen sat beside him. All the other evidence, including that of the officer and Yantz, suggests that Le was in the front seat. Le insisted he meant "behind" where the translation uses "beside." Again, this could be a problem of translation. However, in his statement Le goes on to say that Nhu let Mrs. Nguyen out of the driver's side of the car, and that Mrs. Nguyen was sitting at the intersection for 15 minutes before Lieu Pham came along. At the hearing, Le insisted that both he and Nhu were beside the passenger's door when one of them let her out, and that he was not watching the time that Mrs. Nguyen waited at the intersection before Lieu Pham picked her up. The history given by Mrs. Nguyen would be more believable if she exited the car on the side away from the officer, and waited a shorter time before Lieu Pham took her home.
The evidence of Lieu Pham requires us to believe that while driving along a busy street on a Friday afternoon she was able to see Mrs. Nguyen sitting at the intersection and pull over immediately to talk to her.
Mr. Gillen agreed that Constable McIlravey has no possible motive to fabricate any of his evidence, but he did suggest that Constable McIlravey had investigated so many motor vehicle accidents that his memory of this one could not be very strong. He pointed out that Constable McIlravey could have obtained everything in his notes relating to Le and the driver, Dinh, from paperwork; the point being, I assume, that the notes do not reveal the information about the Toyota backing up at the time the Constable first saw it, for instance. However, Constable McIlravey was very firm in the amount of time it took him to reach the back of the truck (a few seconds). He was equally firm that he saw the Le vehicle moving in reverse and then stopping. In addition, I assume that Constable McIlravey rarely observed an accident when it occurred. I find that fact would make this case more memorable to him.
Mr. Gillen also suggested that Yantz was acting out of self-interest in giving his evidence, in that he does not want to be seen as causing the accident. However, I find no reason to doubt what he said in evidence.
I also note that the evidence of Le and Mrs. Nguyen is contradictory as between themselves. Mrs. Nguyen says she sat in the car for a couple of minutes and then left to go sit at the intersection, before the officer and Yantz approached the Toyota. Le says that the officer and Yantz came over first, and only afterwards did he and Dinh help Mrs. Nguyen out of the car.
It is hard to believe that neither Yantz nor the officer would have seen Mrs. Nguyen in the back seat of the car if she were in it. It is equally hard to believe that she left the car in the few seconds between the impact and the time Yantz and the officer approached the car.
I am also curious about the fact that neither Mrs. Nguyen nor her witnesses ever discuss the grocery bags. Lieu Pham did not say she saw Mrs. Nguyen sitting at the intersection with the bags. Mrs. Nguyen and Le did not discuss them in any of their subsequent conversations either, apparently.
In short, I prefer the evidence of Constable McIlravey and Yantz over that of Mrs. Nguyen and her witnesses. I find that Constable McIlravey saw the Le vehicle still in motion seconds after the accident. Mr. Gillen suggested that, even in Constable McIlravey's version, it would have been "not impossible" for Mrs. Nguyen to exit the car before the officer saw it. However, as counsel for Pilot suggested, the standard of proof is not whether exiting the car in the interval was impossible for Mrs. Nguyen but whether it was probable. I do not believe that a rear-seat passenger could have left the car so quickly as to remain unobserved by either Constable McIlravey or Yantz seconds after the accident.
I also prefer the evidence of Constable McIlravey and Yantz that at no point did they see either Dinh or Le help anyone out of the car.
I find, therefore, that Mrs. Nguyen was not present in the Le vehicle at the time of the accident.
Expenses
The general rule at hearings of the Ontario Insurance Commission is to grant applicants their expenses, unless their claims are frivolous or vexatious. In light of my finding in this matter, I decline to grant Mrs. Nguyen her expenses.
Insurer's expenses
Mrs. Nguyen can be ordered to make a payment under section 282(11.2) of the Insurance Act, which states:
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.
As I have found that Mrs. Nguyen was not an occupant of the vehicle, I find that her claim was an abuse of process, and that she should be ordered to pay the maximum amount under section 282(11.2). In this case, the maximum is $2,000, because that is the amount of the assessment paid by Pilot Insurance Company.
Order:
Mrs. Nguyen was not an occupant of the insured motor vehicle.
Mrs. Nguyen is not entitled to her expenses incurred in respect of this arbitration.
Mrs. Nguyen is ordered to pay $2,000 to Pilot Insurance Company.
June 29, 1995
David Evans
Arbitrator
Date