Neutral Citation: 1998 ONICDRG 113

OIC A97-000386

ONTARIO INSURANCE COMMISSION

BETWEEN:

BICKRAMJIT and NARINDER DHALIWAL

Applicants

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Preliminary Issue:

The Applicants, Bickramjit and Narinder Dhaliwal, allege that they were injured in a motor vehicle accident on February 20, 1996. They applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate denied benefits on the ground that the "accident" was "staged." The parties were unable to resolve their disputes through mediation, and Mr. and Ms. Dhaliwal applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The preliminary issue in this hearing is: were the Applicants injured in an automobile accident on February 20, 1996?

Result:

The Applicants were not injured in a motor vehicle accident on February 20, 1996.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on May 26 and 27, 1998, before me, David Leitch, Arbitrator.

Present at the Hearing:

Applicants:

Bickramjit and Narinder Dhaliwal

Allstate's Representative:

Mark L.J. Edwards

Barrister and Solicitor

Allstate's

Michael Tolan, Craig Stroyan

Officers:

Witnesses:

Bickramjit Dhaliwal

Thomas H. Prescott

Robert Woodcock

Exhibits:

A list of Exhibits appears in the Appendix to this decision.

Conduct of the Applicants' Case:

Mr. Dhaliwal represented both himself and Narinder Dhaliwal, his sister-in-law, at the hearing of this preliminary issue. Mr. Dhaliwal and counsel for the Insurer, Mr. Edwards, understood and agreed that my findings with respect to this issue would bind both Applicants and be based on the same evidence. Mr. Dhaliwal initially indicated that the Applicants' evidence would be entered through himself and Narinder Dhaliwal. Since there was some question about Narinder's ability to testify in English, I postponed the start of the hearing until the services of a Punjabi interpreter could be obtained.

While waiting for the interpreter to arrive, there was some discussion about whether or not Mr. Edwards could properly make a request for an order excluding witnesses given that both Mr. Dhaliwal and Ms. Dhaliwal were parties as well as witnesses. After consulting with his client, Mr. Edwards made no request for exclusions. However, as Mr. Dhaliwal was about to call Ms. Dhaliwal as his first witness, I explained to him that calling her to testify first could create doubt that his own subsequent testimony was tailored to agree with hers. Mr. Dhaliwal decided to exclude Ms. Dhaliwal from the hearing room and give his own evidence first. He gave his evidence without any assistance from the interpreter or any difficulty in understanding or speaking English.

At the conclusion of his own evidence, with the Punjabi interpreter still present and without providing any explanation, Mr. Dhaliwal indicated that he would not be calling as witnesses either Ms. Dhaliwal or his brother, Sarabjit Dhaliwal, the driver of the vehicle in which the Applicants allege they were passengers when they were injured. Before Mr. Dhaliwal closed his case, Mr. Edwards indicated that he would urge me to draw from their failure to testify the inference that Narinder and Sarabjit Dhaliwal's evidence would not have supported Mr. Dhaliwal's description of the accident.

Evidence:

Mr. Dhaliwal testified that at about 1:45 a.m. on February 20, 1996, he and Ms. Dhaliwal were passengers in a rented vehicle driven by his brother, Sarabjit Dhaliwal. They were waiting to make a left turn when their vehicle was struck from the rear by another vehicle. The weather was not clear and Mr. Dhaliwal did not see the other vehicle. Mr. Dhaliwal did not recall whether or not their vehicle was fully stopped but he did recall it being pushed forward by the impact without causing any additional collisions from the front. The other vehicle did not stop and its licence plate number was not obtained. With the Applicants still in the vehicle, Sarabjit Dhaliwal drove it to a nearby police station and reported that "a dark pickup truck hit my car from behind and damaged the right side."

The Insurer called two witnesses: Robert Woodcock, an auto appraiser, who examined and photographed the damage to the Dhaliwal vehicle the day after the accident, and Thomas Prescott, a mechanical engineer, who examined the photographs taken by Mr. Woodcock (Exhibit 1, Photographs E through H), additional photographs taken by an unidentified person at the repair facility (Exhibit 1, Photographs A through D), a damage appraisal, a repair estimate, two accident reports and statements taken from the three occupants of the Dhaliwal vehicle. Mr. Prescott was qualified as an expert witness in automobile accident investigation and was asked to express an opinion about how the damage to the Dhaliwal vehicle was caused. Although I was not supplied with copies of all the documents he examined before reaching his conclusion, it was clear from Mr. Prescott's oral testimony that his conclusion was based principally on the photographs entered into evidence as Exhibit 1.

Mr. Prescott's oral testimony was consistent with his letters of opinion to the Insurer dated July 26, 1996 and March 18, 1997 which were also entered into evidence. The conclusion portions of these letters read, respectively, as follows:

In summary, it is my opinion that the "E"-Cars [the Dhaliwal] vehicle could not have been struck from the rear as described by the occupants of the vehicle.

The damage patterns to the "E"-Cars vehicle are consistent with the damage forces applied from the front to the rear of the vehicle. If the "E"-Cars vehicle was stationary at impact and facing in a northerly direction, then the striking object would have been proceeding in a southerly direction. However, the damage patterns are most consistent with the "E"-Cars vehicle moving forward and rubbing past a stationary object such as a pole or guiderail.

In summary, it is my opinion that the damage to the right rear tail lamp lens of the "E" -Cars vehicle is not consistent with an impact from the rear by a motor vehicle. The damage to the tail lamp lens is also not consistent with a front to rear sideswipe motion from a vehicle or rigid pole.

The damage to the right rear tail lamp lens of the "E"-Cars vehicle is consistent with a blow from a relatively small object directed from the rear, centrally against the lens surface. The damage would also be consistent with a front to rear sideswipe or scraping motion against a somewhat pliable object that snagged the right edge of the lens.

In addition to leading this expert opinion, the Insurer challenged the Applicants' description of the accident by attacking Mr. Dhaliwal's credibility. In particular, on cross-examination, Mr. Edwards put to Mr. Dhaliwal three written statements he had signed in support of insurance claims made following various incidents in which he alleged that he had sustained injuries.

The first statement was signed by him on May 30, 1996 and submitted in connection with the alleged incident of February 20, 1996 which gives rise to this claim. In this statement, Mr. Dhaliwal admits that he was involved in a motor vehicle accident in 1994 but denies having been involved in any other accidents. However, a Health Practitioner's Certificate submitted to the Insurer by Mr. Dhaliwal's family doctor on July 16, 1996 states that he had been injured in a motor vehicle accident on March 22, 1992.

The second statement was signed by Mr. Dhaliwal on December 18, 1996 and submitted in support of an insurance claim he made after allegedly slipping and falling at a Zeller's Store on October 8, 1996. In this statement, Mr. Dhaliwal denies having been involved in any car accidents. At this point in time, based on his own statements and the Health Practitioner's Certificate, Mr. Dhaliwal had been involved in three previous car accidents in 1992, 1994 and 1996.

The third statement was signed by Mr. Dhaliwal on March 13, 1997 and submitted in support of an insurance claim he made after allegedly being injured in a motor vehicle accident on February 15, 1997. In this statement, Mr. Dhaliwal again admitted only to having been involved in one previous accident of any kind, the 1994 motor vehicle accident. By this point in time, based on his own statements and the Health Practitioner's Certificate, Mr. Dhaliwal had been involved in three other accidents, one in 1992 and two in 1996.

Findings:

I accept Mr. Prescott's expert opinion and find that no rear-end accident of the type described by Mr. Dhaliwal took place.

I also accept Mr. Edwards' submission that the Applicants' failure, without explanation, to call Narinder and Sarabjit Dhaliwal as witnesses strongly suggests that their evidence would not have supported Mr. Dhaliwal's description of the accident.

Finally, I find that Mr. Dhaliwal's evidence as a witness is unworthy of belief. Having observed him as a witness, I find that Mr. Dhaliwal is an intelligent and articulate person. Yet, I also find that he made and signed three contradictory and untrue statements with clear intent to deceive the responsible insurers.

On this basis, I find that the Applicants have not established, on a balance of probabilities, that they were injured in the accident described by Mr. Dhaliwal or by any other undescribed accident to which the Insurer must respond. The Applicants are not, therefore, entitled to receive statutory accident benefits.

Expenses:

The Insurer's Response to the Application for Arbitration alleged that the accident was "staged" and demanded "repayment of the $2,000.00 arbitration fee plus costs in defending this matter." To avoid the need for further proceedings with respect to expenses, I obtained, at the hearing, the parties' oral submissions with respect to expenses in the event I found, as I now have, in the Insurer's favour on the preliminary issue.

I am not certain what the Insurer meant by the expression "staged accident." The evidence does not establish that the Dhaliwal vehicle was damaged intentionally. However, the evidence does establish that the injury-causing accident described by Mr. Dhaliwal did not happen. It also destroyed Mr. Dhaliwal's credibility in alleging that it did happen.

This leads me to conclude that Mr. Dhaliwal commenced an arbitration that was an abuse of process. Exercising my authority under section 282(11.2) of the Insurance Act, I order Mr. Dhaliwal to pay the Insurer $2,000, the full amount assessed against it in respect of this arbitration. This order is only effective as against Mr. Bickramjit Dhaliwal.

Results:

1. The Applicants were not injured in a motor vehicle accident on February 20, 1996.

2. The Applicant, Bickramjit Dhaliwal, shall pay the Insurer $2,000.00 in expenses in respect of this arbitration.

David Leitch

Arbitrator

Date

APPENDIX

Exhibit 1

Photographs A through H, inclusive.

Exhibit 2

Statement dated May 30, 1996 given to Allstate by B. Dhaliwal.

Exhibit 3

Health Practitioner's Certificate dated July 10, 1996, signed by B. Dhaliwal and Dr. J.S. Kim.

Exhibit 4

Statement given to Kingsway by B. Dhaliwal, dated March 13, 1997 (transcription).

Exhibit 5

Statement given to Zellers by B. Dhaliwal dated December 18, 1996 (transcription).

Exhibit 6

Citizen Report Form, Peel Regional Police dated February 20, 1996.

Exhibit 7

Billing records, chiropractor A. Glatten.

Exhibit 8

Letter and statement of account, massage therapist, D. Montisano.

Exhibit 9

C.V. for Thomas H. Prescott.

Exhibit 10

Preliminary Report of Thomas H. Prescott dated July 26, 1996.

Exhibit 11

Supplementary Report of Thomas H. Prescott dated March 18, 1997.

Exhibit 12

Letter of appraisal from Crawford & Company dated February 21, 1996 signed by Robert Woodcock.

¹ The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.