Neutral Citation: 1998 ONFSCDRS 33

FSCO A97-000345

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ISMAIL HASHI

Applicant

and

AMERICAN HOME ASSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Ismail Hashi, alleges that he was injured in a motor vehicle accident on June 22, 1996. He applied for but did not receive statutory accident benefits from American Home Assurance Company ("American"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Hashi applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Was Ismail Hashi a passenger in the motor vehicle accident which occurred on June 22, 1996?

Mr. Hashi also claims interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. Ismail Hashi was a passenger in the motor vehicle accident which occurred on June 22, 1996.

Background:

On Friday June 21, 1996, Dahir Hashi rented a 1996 Neon from Thrifty Rental Car and purchased rental insurance. The rental vehicle was insured by American Home Assurance on August 25, 1998 (the "Insurer). In the early morning hours of Saturday, June 22, 1996, this vehicle was involved in a single vehicle car accident. The driver of the vehicle, Abdinoor Omar and the alleged passenger in the vehicle, Ismail Hashi, made claims for accident benefits. The Insurer was suspicious of the circumstances of the accident and investigated the matter to determine if the accident was "staged." They also questioned whether the passenger in the vehicle was Ismail Hashi, since the police motor vehicle accident report recorded Dahir Hashi as the passenger in the vehicle. The Insurer ultimately decided not to act on its suspicions that the accident was "staged" and resolved Mr. Omar's accident benefits claim. Similarly, they did not pursue an argument before me that the accident was "staged." Thus, it was not disputed that the 1996 Neon was in a motor vehicle accident on June 22, 1996, that Abdinoor Omar was the driver, and that another male was a passenger in the vehicle at the time of the accident. The only issue before me was whether the Applicant, Ismail Hashi, was that passenger.

The parties advised me that the amount of accident benefits was not in dispute as they had reached agreement on how to resolve all other issues, depending on the outcome of this arbitration.

Evidence:

Dahir Hashi testified that he was asked by a family friend, Abdinoor Omar, to rent a car from Thrifty Rental Car for Mr. Omar's use, because Mr. Omar did not have the required credit card. On the afternoon of June 21, 1996, Mr. Omar picked up Dahir Hashi from his apartment and drove them to the rental car office, where Dahir Hashi rented a 1996 Neon, License #128 YKS in his name. Dahir Hashi then drove Mr. Omar's vehicle to his apartment and left it there. Dahir Hashi denies any further involvement with the rental car. He testified that Mr. Omar called him on the morning of June 22, 1996 and advised that Mr. Omar and Dahir Hashi's brother, Ismail Hashi, had been involved in an accident. He did not see his brother, Ismail Hashi, until later that day.

Abdinoor Omar testified that he asked Dahir Hashi to rent the car because he wanted the use of a car for the weekend. Although he owned two cars, his insurance had lapsed. He could not rent the vehicle himself, because his credit cards were at the maximum level. Mr. Omar drove his uninsured vehicle to the rental car office, and allowed Dahir Hashi to drive it home. Mr. Omar picked up Ismail Hashi at his workplace between 7:00 and 8:00 p.m. and they proceeded to a Somalian restaurant for dinner. They went to a nearby poolhall where Mr. Omar played table soccer with friends, and Ismail Hashi played pool. They departed together after midnight and returned to Mississauga. Mr. Omar decided to visit a cousin at 180 Mississauga Boulevard Avenue. It was raining. While proceeding up the lengthy walled driveway, he swerved to avoid an oncoming car rounding a sharp curve. He proceeded directly ahead and crashed the car into a metal fence. Mr. Omar telephoned the police from a nearby donut shop. A police car arrived approximately one hour later, followed by a tow truck and then a second police car. The first police officer asked if they were injured or needed an ambulance, and then departed, leaving the situation to the second officer. The second officer (Officer John Cruickshank) approached Mr. Omar while he was standing outside his car and asked for the paperwork. Mr. Omar testified that Officer Cruickshank did not approach the passenger or ask any questions about the passenger. He simply asked how many persons were in the car and Mr. Omar responded that two persons were in the car, meaning the passenger and himself. He denied that this police officer ever spoke to Ismail Hashi. Mr. Omar gave his driver's license and the rental agreement to Officer Cruickshank and sat in the cruiser while the officer completed the paperwork. He received a copy of the motor vehicle accident report and then he and Ismail Hashi left the scene, leaving the officer and the tow truck driver to arrange for the towing of the vehicle.

Ismail Hashi testified that Abdinoor Omar picked him up from work, that they ate together at the Somalian restaurant, went to the pool hall, and left together for Mississauga after midnight. He described the details of the accident and stated that he was the passenger in the car at the time. He also testified that the first police officer asked if they were all right and asked if they needed an ambulance, and that Mr. Omar responded that they didn't.³ He testified that a second officer arrived and the first officer departed. He denied that this second officer (Officer Cruickshank) ever approached their car, spoke to him, or had any opportunity to see him. He testified that the tow truck arrived after that, and he got out of the car once, briefly, to speak to the tow truck driver.⁴

Ismail Hashi described the car swerving violently from side to side several times before the crash, but he sustained no cuts or bruises from his shoulder and lap seat belt. He stated that he put out his left hand to brace himself and injured his left wrist, his neck and his back. On the Monday following the accident, he sought out his family doctor and reported symptoms from the motor vehicle accident.⁵

Some time after the accident, Ismail Hashi learned from his lawyer that the Insurer was disputing that he had been in the motor vehicle accident. His lawyer arranged for him to attend at the police station, to see if he and the police officer at the scene would recognize each other. When Ismail Hashi arrived at the police station on September 14, 1996 and was introduced to an "Officer Cruickshank" as the officer at the scene that night, he did not recognize him. Later, a different officer presented himself as the "real Officer Cruickshank" and he did not recognize him either. Ismail Hashi explained that he had no opportunity to observe the police officer that night and therefore, he was not be able to recognize him.

Still later, the insurance company asked him to take a polygraph test to test his truthfulness on issues relating to the accident. He agreed and he underwent the test on September 26, 1996. He testified that he answered all the questions truthfully, but the examiner advised him that he had been lying.

Officer John Cruickshank testified that he arrived at the accident scene at 1:53 a.m. and advised the first officer that he could handle the call. When he approached the vehicle, both occupants were reclined in the front seats and seemed curiously casual, having regard to the severely damaged car rammed into the metal railing. He knocked on the car window and asked if they were injured or required an ambulance. He was advised that they did not need an ambulance.

Officer Cruickshank recorded the driver's license and other information about the driver on the motor vehicle accident report. Officer Cruickshank testified that when reviewing the rental agreement, he noticed that Dahir Hashi was listed as the rental car driver and he wanted to know why Mr. Omar, not Dahir Hashi, was driving the car. He asked Mr. Omar about Dahir Hashi. Mr. Omar indicated that the passenger was Dahir Hashi. The officer asked why Dahir was the passenger (meaning, why wasn't he driving) and asked whether they had been drinking. Mr. Omar responded that it was against their religion. The offficer recorded Dahir Hashi as the passenger⁶ on the bottom half of the accident report. He gave Mr. Omar the driver's copy of the accident report, which did not contain the Officer's note of Dahir Hashi as the passenger.⁷

Officer Cruickshank testified that he observed the passenger briefly as he sat in the vehicle, although the interior of the vehicle was dark. He observed him again when the passenger was talking to the tow truck driver. The passenger tapped on the window and asked how much longer they would be. He also observed the two men walk away from the scene.

Officer Cruickshank testified that he was somewhat suspicious about the incident, because of reports of rental vehicles being involved in insurance fraud, but apart from recording the scene of the accident and the passenger's name, he did not record any unusual concerns.

Some time afterward he was contacted by insurance investigators who advised him that the Insurer was concerned that a person claiming to be a passenger in the vehicle at the time of the accident, was not really the passenger. The investigators arranged to meet Officer Cruickshank at the police station and showed him several photographs. He was unsure whether the person in the photographs was the passenger in the vehicle on June 22, 1996. He felt the quality of the photographs was poor. The actual photographs shown to the officer were not introduced in evidence, and it is not clear to me whose photograph was shown to the officer.

Sometime after this, Ismail Hashi's counsel contacted Officer Cruickshank and asked to meet with him to assist in confirming whether or not Ismail Hashi was in the vehicle that night. Unbeknownst to the lawyer, Officer Cruickshank arranged to have another officer, Officer Paul McNairn, impersonate him to test whether Ismail Hashi would recognize the incorrect officer. When Ismail Hashi arrived at the police station, Officer Cruickshank was at the desk. Ismail Hashi did not recognize him. Paul McNairn was introduced as Officer Cruickshank and Ismail Hashi did not indicate any recognition of him either. When the lawyer arrived, Officer McNairn escorted them to an interview office where Ismail Hashi recounted the details of the accident. Officer Cruickshank watched the interview and testified that some of the details were "bang on" but some details were missing, such as the position of the lights and an inability to describe the tow truck driver. Officer Cruickshank eventually entered the interview room, identified himself and the meeting ended. He testified he was convinced that Ismail Hashi was not the person he had seen on the night of the accident. In response to further questioning, he agreed that it was the combination of not recognizing Ismail Hashi, Ismail Hashi not recognizing him, and Ismail Hashi's inability to remember some of the details of the accident scene which contributed to his conviction that Ismail Hashi was not the passenger in the vehicle that night.

Officer McNairn testified and corroborated his impersonation of Officer Cruickshank. He confirmed that Ismail Hashi did not indicate any reaction when advised he was Officer Cruickshank, even when the real Officer Cruickshank was standing nearby. He testified that Officer Cruickshank was convinced this was not the passenger even before they proceeded to the interview room.

Polygraph Evidence

Nelson Scharger is a polygraph examiner employed by the Insurance Crime Prevention Bureau as a Certified forensic Polygraph Examiner. He was briefed by an insurance adjuster of the Insurer's concerns and asked to conduct a polygraph examination of Ismail Hashi to determine whether he was a passenger in the vehicle at the time of the accident, and whether the accident was staged. The examination was conducted on September 26, 1996, with Ismail Hashi's consent.

Applicant's counsel did not oppose the admissibility of the polygraph evidence and did not challenge Mr. Scharger's experience and expertise as a certified Forensic Polygraph Examiner. However, he argued that the evidence should be given no weight. I have decided that I can place no weight on this evidence, for the reasons discussed below.

Mr. Scharger is a trained, experienced polygraph examiner. He took the Polygraph Examiners Course at the Canadian Police College, organized the Polygraph Services for the Metropolitan Toronto Police, and was their first certified polygraph examiner. He has been regularly conducting polygraph examinations since 1983 and has taken many upgrading courses. Since 1996 he has been employed by the Insurance Crime Prevention Bureau as their sole Ontario examiner and has conducted approximately 80 examinations in the last year.

Mr. Scharger explained that the technique he used in the polygraph examination of Ismail Hashi was the Control Question Technique - Utah Version, which is widely accepted among polygraph examiners in North America. Polygraph is "a psychophysiological approach to credibility assessment with the emphasis on the psychological aspects. If an examinee lies in response to a question, it engenders emotional reaction that in turn creates changes in body functions."⁸

The theory underlying the test is that lying causes an emotional reaction which in turn triggers physiological responses, which can be measured. The testing procedure is quite lengthy. Mr. Scharger began by explaining the procedure to be followed, obtaining Ismail Hashi's consent and completing a background information form to determine if Mr. Hashi was "testable." He then asked Mr. Hashi to relate his version of the accident at length and questioned him throughout the process. A transcript of this portion of the examination was introduced in evidence.

Mr. Scharger then reviewed 10 questions which would form the basis of the examination. Four of the questions were unrelated to the test, such as "is your name Ismail?" and "are you now in Toronto?" Three of the questions were "control" questions, that is, questions the examiner is satisfied that Mr. Hashi was not answering truthfully, such as "Not connected with this accident, do you recall ever lying to anyone?" When Mr. Hashi responded "no," Mr. Scharger was satisfied that this was a satisfactory control question. The other two control questions were "Not connected with this accident, do you ever recall cheating anyone?" and "Not connected with this accident, do you recall ever committing a crime you never got caught for?"The three "relevant" questions for which Mr. Hashi was being tested were:

1. Were you a passenger in that 1996 Neon License # 128-YKS when it struck that stairway on June 22, 1996?

2. Did you plan with anyone to have an accident with that vehicle on June 22, 1996 before the accident happened?

3. Are you lying to the insurance company when you report that you injured your back and neck in that accident on June 22, 1996?

Mr. Scharger then attached the devices to measure physiological responses, explaining what they were and how they worked. Two pneumotubes were attached to Mr. Hashi's chest and stomach, to measure breathing. Two metal "spoons" were attached to his index and third finger to measure galvanic skin response (sweat gland activity). A blood pressure cuff was placed on his upper arm to measure blood pressure and heart rate.

Mr. Scharger asked Mr. Hashi the same 10 questions three times, but in a different sequence. As the examination proceeded, a printout of the physiological responses was created and Mr. Scharger marked the moment when questions were asked, the response, and any unusual activity, such as talking or movement. Following the test, Mr. Scharger analysed the printout. By comparing the physiological response to a relevant question to the response to a control question, Mr. Scharger scored the reactions. The greater the discrepancy between the response to the relevant question compared to the control question, the greater the score. The scoring of the printout is a relatively objective function, and two similarly experienced examiners are likely to score the printout in similar ways.

The questions are asked three times and the overall score to all three tests is used to ensure greater accuracy. Only scores of plus three or minus three are considered reliable indications of truthfulness or untruthfulness. Scores in the middle range are considered inconclusive. Mr. Scharger concluded that Mr. Hashi was lying in response to the relevant questions # 1 and #2 and got an inconclusive score in response to question #3.

As a result, I am left with the following. Mr. Hashi had a greater physiological response when he was asked two of the relevant questions compared to two of the control questions. This evidence is virtually meaningless, since I am not prepared to conclude that a strong physiological reaction to being asked whether you are participating in an insurance fraud is evidence of lying.

I am satisfied that Mr. Scharger carried out the examination in a competent manner and that the scores he noted are genuine reflections of the physiological responses measured by the polygraph equipment used. However, I did not hear any evidence connecting those three physiological responses to truthfulness, nor any evidence regarding the reliability rates of such tests. I cannot take judicial notice of the theory explained by Mr. Scharger that someone who is lying will have an emotional response which in turn generates a physiological reaction that can be measured. I have no idea if the test administered by Mr. Scharger has been tested objectively for reliability and if so, what the results of those studies show. Mr. Scharger acknowledged that there was research on this issue but there was none before me. The fact that many organizations, both public and private in North America and elsewhere in the world administer polygraph examinations is not direct evidence of its reliability.

Further, in my view, it is highly improbable that Mr. Hashi would lie both about an alleged staged accident and to being in the car. That is, if the accident was staged, it is unlikely that Mr. Hashi would have failed to complete the fraud by ensuring that he was the passenger in the vehicle at the time. The likelihood of arranging a staged accident and lying about the identity of the passenger is remote.⁹ Thus, if physiological reaction has any correlation to truthfulness, then the polygraph examination should not have detected both statements as a lie. Either the accident was staged, in which case, Mr. Hashi could have been detected lying on that question, but should have been detected to be telling the truth that he was in the vehicle. Or, the accident was not staged, but Ismail Hashi was not in the vehicle. In the latter case, the examination should have revealed that he was lying about being in the vehicle but was telling the truth that the accident was not staged.

Conclusions on the Evidence:

I am not prepared to accept Officer Cruickshank's conclusion that Ismail Hashi was not the person he saw in the car the morning of June 22, 1996. Officer Cruickshank's conviction was based in part on his failure to recognize Ismail Hashi and Ismail Hashi's failure to recognize him. I do not find this lack of recognition on both their parts significant. At the time of the accident, neither party would have had reason to be particularly observant of the other, neither realizing that identification of the other would be an issue in the future. Officer Cruickshank was not certain, when shown a photograph by an insurance investigator, whether the person in the photograph was the passenger that night. This is strong evidence that Officer Cruickshank could not identify the passenger by sight. Officer Cruickshank's conviction that Ismail Hashi was not the passenger that night was based partly on the recognition factor, which I have already discounted, and partly on the fact that Ismail Hashi was "bang on" on some details but not on others. I do not draw the same conclusion from that as Officer Cruickshank. Knowing the details of the accident is consistent both with having been there, or with having been told about, or visiting the site later. Not knowing the position of the lights or not being able to give a description of the tow truck driver are not significant details which convince me that Ismail Hashi is fabricating his involvement in the entire incident.

There were similarities and discrepancies in Mr. Ismail Hashi's and Mr. Omar's versions of the events of the accident. Both counsel agreed that identical stories would be suspect and that "minor inconsistencies are the hallmark of credibility." Thus their descriptions of the events of that evening and morning are consistent with Ismail Hashi being in the vehicle that night, but are also consistent with their having colluded together. Dahir Hashi's evidence of not being in the vehicle that evening merely eliminates him as a possible passenger, it does not establish that Ismail Hashi was the passenger. The reported injuries were all soft tissue in nature and there were no objective signs, cuts, bruises, and so on to confirm or to cast doubt on Ismail Hashi's version of events.

The onus of proof is on the Applicant to establish, on a balance of probabilities, that he was the passenger in the vehicle on the morning of June 22, 1996. I approached this difficult issue by asking myself, what is more in keeping with reasonable expectations? First, I note that it is not in dispute that the 1996 rented Neon was in a single vehicle car accident on the morning of June 22, 1996, that Mr. Abdinoor Omar was the driver, and that there was one male passenger in the car at the time. There are two possible scenarios before me. In one scenario, Ismail Hashi was the passenger in the vehicle the morning of the accident. If this is the case, then how did it come about that Officer Cruickshank recorded the name of Dahir Hashi on the accident report? The simple explanation is that Officer Cruickshank simply copied the name of Dahir Hashi from the rental agreement. Either Officer Cruickshank embellished his evidence as to why he recorded Dahir Hashi as the passenger or there was some misunderstanding between Abdinoor Omar and the Officer when the Officer inquired about Dahir Hashi. Given the lateness of the hour, the vagueness of the inquiry,¹⁰ and the accent with which Mr. Omar spoke, the likelihood of misunderstanding is high.

In the second scenario, Ismail Hashi was not the passenger in the vehicle on June 22, 1996. If this is the case, then sometime between 2:00 a.m. Saturday morning when the accident occurred and Monday morning,¹¹ when Ismail Hashi visited his family doctor, Ismail Hashi devised a plan in conjunction with Mr. Omar to engage in a serious deceit to obtain insurance benefits to which he is not entitled. He fabricated symptoms of injury and presented them to his family doctor on the Monday following the accident. He took unnecessary physiotherapy treatments. He lost a job, albeit a probationary one, after only three days on the job, and after enduring several months of unemployment prior to that. He convinced Abdinoor Omar to lie for him. He convinced some unknown person who was actually with Mr. Omar that evening to remain out of the picture, and forego any accident benefits to which he might have been entitled.

What motivation would Ismail Hashi have to engage in this unusual form of insurance fraud? This is not a situation where there is a dispute whether there was any passenger in the vehicle at the time. The only dispute is the identity of the passenger. Somebody was in the vehicle at the time of the accident on Saturday morning. Why would that person agree to forego benefits? Although it is conceivable that Ismail Hashi could have a more lucrative claim for accident benefits than someone who was not employed, that does not seem to be a sufficient incentive to engage in this particular deceit.

I find this latter scenario highly unlikely. In my view, it does not accord with reasonable expectations about how persons intent on fraudulently obtaining insurance benefits, behave. I conclude, on a balance of probabilities, that Ismail Hashi was the passenger in the 1996 Neon on the morning of June 22, 1996.

Expenses:

I exercise my discretion to award Ismail Hashi his expenses in this arbitration.

September 1, 1998

M. Kaye Joachim

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on July 28 and 29, 1998, before me, M Kaye Joachim, Arbitrator.

Present at the Hearing:

Applicant:

Ismail Hashi

Mr. Hashi's

Ian Little

Representative:

Barrister and Solicitor

American's

Chris Blom

Representative:

Barrister and Solicitor

Laura Wright

Observer

Witnesses:

Ismail Hashi

Dahir Hashi

Abdinoor Omar

John Cruickshank

Nelson Scharger

Paul McNairn

Exhibits:

Ten exhibits were filed by the parties.

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission became part of the Financial Services Commission of Ontario.
3. 3The first police officer was not a witness in this proceeding.
4. 4The tow truck driver was not a witness in this proceeding.
5. 5The visit to the family doctor was confirmed by the medical documentation filed.
6. 6I note that the motor vehicle accident report standard form provided room to fill in the names of additional passengers, and in one of those blank spaces, Officer Cruickshank wrote "Dahir Hashi."
7. 7The standard form motor vehicle accident report contains five copies. The driver's copy of the report is only half as long as the full report, and does not include the bottom half of the report, where the Officer records further information. Only the last three copies of the five page form include the bottom half of the form.
8. 8Exhibit 5, Tab 8, Report of Nelson Scharger dated October 2, 1996.
9. 9I note that there is no dispute that there was one male passenger in the car at the time.
10. 10Recall that Officer Cruickshank testified that he noticed the name of Dahir Hashi on the rental agreement and asked about Dahir Hashi. He testified that Mr. Omar indicated that was the passenger. Officer Cruickshank did not specify in his evidence what words he used to inquire about Dahir Hashi or what words or in what manner Mr. Omar "indicated" that Dahir Hashi was the passenger.
11. 11I conclude the plan must have been formulated after the accident occurred because it was not pursued before me that the accident was staged. I had insufficient evidence before me to make any findings with respect to a planned accident. Thus, for the purpose of my decision, I must assume that the accident was not staged or preplanned. Since Ismail Hashi did not know the accident was going to happen, he could not have planned to substitute himself before Saturday morning, when the accident actually occurred.