Neutral Citation: 2002 ONFSCDRS 33
FSCO A01-000225
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ALI ABRAHIM
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
REASONS FOR DECISION
Before:
Fred Sampliner
Heard:
January 21, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Tamara Tomomitsu for Belair Insurance Company Inc.
Mr. Abrahim was not present.
Issues:
The Applicant, Ali Abrahim, claims he was injured in a motor vehicle accident on March 21, 2000. He applied for and received statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.1 Belair terminated weekly income replacement benefits on April 21, 2000. The parties were unable to resolve their disputes through mediation, and Mr. Abraham applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mr. Abrahim entitled to income replacement benefits under Part II of the Schedule after April 21, 2000?
Is Mr. Abrahim entitled to payment of $3,695.25 for treatment at the Spine Clinic under section 14 of the Schedule?
Is Mr. Abrahim entitled to his expenses of the arbitration?
Is Belair entitled to repayment of $806.03 for income replacement benefits paid to Mr. Abrahim, its $3,000 assessment fee for the arbitration process and its expenses of the arbitration?
Result:
Mr. Abrahim is not entitled to income replacement benefits after April 21, 2000.
Mr. Abrahim is not entitled to $3,695.75 for treatment at the Spine Clinic.
Mr. Abrahim is not entitled to his expenses of the arbitration.
Belair is entitled to an $806.03 repayment of income replacement benefits, $3,000 for its arbitration assessment fee and its expenses of the arbitration, assessed in the amount of $2,984.91
EVIDENCE AND ANALYSIS
Mr. Abrahim did not appear at the hearing, although the prehearing letter and separate Notice of Hearing were sent to him and his representative stating the time, place, date and purpose of the hearing in accordance with the requirements of the Statutory Powers and Procedures Act (SPPA). The hearing notice also explained that the hearing would proceed if Mr. Abrahim did not attend.
These communications were not returned to the Commission by postal authorities. I find that Mr. Abrahim was provided with proper notice of the hearing under the SPPA, and an opportunity to present evidence and submissions in support of his claims.
Belair's representative and counsel were present and this matter proceeded on its evidence and submissions. Belair's contention that Mr. Abrahim was not a passenger in the two-car collision on March 21, 2000 is amply supported by the evidence presented at the hearing.
Mr. Jagvinder Singh Deol testified that he was alone driving his taxicab on Lakeshore Boulevard West at 37th Street in Toronto on March 21, 2000 when another vehicle owned by Ms. Nafisa Aden swerved in front of him from the right lane. Mr. Deol stated that a man was driving the car, accompanied by one male and one female passenger. The parties exchanged information at the scene, and everyone went immediately to the collision reporting centre (CRC).
Constable Harvey Slaght testified that Ms. Aden told him at the CRC that she was driving her car at the time of the accident. In her collision report, Ms. Aden indicated that she drove, and both of the men in the vehicle who arrived with her at the CRC told the officer she had been driving.
Constable Slaght stated that the provincial records confirmed Ms. Aden owned the car, but that her qualification to operate a motor vehicle was limited by the requirement that she have a fully licensed driver with her. One of the men, Mr. Ahmed Ali Hassan, claimed he had a valid operator's licence, but Constable Slaght told Ms. Aden that the official records indicated his privileges were suspended and that the other male, Mr. Abdigiani Omar, did not have a licence.
Ms. Aden then asserted to police that Mr. Abrahim was a third passenger in her car, that he had a valid driver's licence, and left the accident scene immediately afterwards to go to work. Ms. Aden's collision report, she and Mr. Hassan's signed statements a month after the accident also indicate that Mr. Abrahim was in the car. However, Mr. Omar's statement taken at the same time does not mention that Mr. Abrahim was present.
Constable Slaght's testimony that Mr. Deol told him at the CRC there were only three people in the car together with Mr. Deol's testimony that he was certain of this fact is given further weight by signed statements from a Toronto Transit Commission employee and the tow truck operator who were present at the scene shortly after the accident.
Mr. Deol also testified that both men in Ms. Aden's car were not bald-headed, and Constable Slaght similarly described both men who accompanied Ms. Aden at the CRC. Mr. Abrahim was bald-headed when he appeared before Constable Slaght at the CRC on the day following the accident. Constable Slaght and Mr. Deol's testimony is compelling identification that Mr. Abrahim was not either one of the two men in the car at the time of the accident.
Constable Slaght testified that Mr. Abrahim told him he went to work directly after the accident. Mr. Abrahim submitted an application for accident benefits and employer's confirmation of income to Belair, claiming that at the time of the accident he was employed as a cashier and salesperson for Iftin Entertainment at $420 per week. He later signed a statement attesting to these facts for the Insurer, and also produced a photocopy of a T4 earnings record for 1999.
Belair sent an investigator to speak with the company owner after Mr. Abrahim made his claim. Mr. Ali Hassan, Iftin's manager, signed a written statement that a man using the name Ali Hussein Ibrahim, at the same address as Mr. Abrahim, worked for the company in 1997/1998, but was fired after an argument with the owner. He never returned to work at Iftin.
I accept this evidence establishes that Mr. Abrahim did not work for Iftin Entertainment in 1999 or in 2000, and that he knowingly submitted false information to Belair. I find that Mr. Abrahim was neither employed at the time of the accident or during 26 of the previous 52 weeks in order to qualify for income replacement benefits under Part II of the Schedule.
The evidence of Constable Slaght, Mr. Deol, together with the statements from the TTC and tow truck driver is clear and consistent. I accept the officer's opinion that Ms. Aden and the two men in her car gave false statements that she drove the vehicle at the time of the accident and that Mr. Abrahim was present in the car in order to cover up that the actual driver, Mr. Hassan, did not have legal authority to drive. Based on this evidence, I find that the statements and reports of Ms. Aden, Mr. Ahmed Hassan, Mr. Omar and Mr. Abrahim are unreliable.
Consequently, I am persuaded that Mr. Abrahim was not present in Ms. Aden's car at the time of the accident. I find that Mr. Abrahim is not an insured person who was involved in the March 21, 2000 automobile accident, and that he both misrepresented to Belair that he was present in the vehicle and his employment. I find that Mr. Abrahim is not entitled to accident benefits under the Schedule.
Mr. David Trevor Recoskie was initially Belair's adjuster on this claim. He testified that Belair immediately began an investigation of Mr. Abrahim's claim because the police informed him that they believed he was not in Ms. Aden's vehicle. However, Belair paid Mr. Abrahim $268.50 per week from March 29, 200 to April 21, 2000 under Part II of the Schedule during the investigation.
Mr. Recoskie testified that after Belair assembled evidence that Mr. Abrahim had not been employed at the claimed job and was not in the car, he sent Mr. Abrahim a request for repayment of the $806.03 income replacement benefits on or about July 5, 2000 in accordance with the requirements of subsection 47(2) of the Schedule. A copy of this notice was filed as evidence, and Mr. Recoskie testified that nothing was repaid.
I find that Belair paid Mr. Abrahim the $806.03 through his misrepresentations to the company, that it sent Mr. Abrahim a clear and timely repayment notice for this amount in accordance with sections 47 and 48 of the Schedule, that nothing has been repaid, and that this Insurer is entitled to repayment of this sum together with applicable interest under subsections 47(6) and 47(7) of the Schedule. As a result of Mr. Abrahim's misrepresentations, I also find that under subsection 282(11.2) of the Insurance Act, he committed an abuse of process by filing for arbitration, and is responsible to pay Belair's $3,000 assessment fee for this arbitration proceeding. EXPENSES:
I agree with Belair that in these circumstances Mr. Abrahim should pay the Insurer's expenses of the arbitration under subsection 282(11) of the Insurance Act. I find the bill of costs from counsel ($2,582.64 at the applicable legal aid rate) is reasonable, and that Belair is entitled to this expense. However, I find that counsel's 488 photocopies is not reasonable for this relatively simple file, and allow 200 copies. I find that the remainder of the disbursements are reasonable, and that by adding the $375.95 plus $26.32 GST together with costs, Belair is entitled to $2,984.91 for its expenses.
February 12, 2002
Fred Sampliner
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 33
FSCO A01-000225
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ALI ABRAHIM
Applicant
and
BELAIR INSURANCE COMPANY INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Abrahim's claims for income replacement benefits, treatment at the Spine Clinic, interest and his expenses of the arbitration are dismissed.
Mr. Abrahim shall repay Belair $806.03 for income replacement benefits together with interest under sections 47 and 48 of the Schedule, $3,000 for its arbitration assessment, and $2,984.91 for its expenses of the arbitration.
February 12, 2002
Fred Sampliner
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00.