Neutral Citation: 2003 ONFSCDRS 164

FSCO A03-000027

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOSEPH P. OFORI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

September 16, 17 and 18, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Peter Cozzi for Mr. Ofori

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Joseph P. Ofori, claimed to be injured in a motor vehicle accident on April 8, 2002. He applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate refused to pay any benefits. The parties were unable to resolve their disputes through mediation, and Mr. Ofori 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:

1. Was Mr. Ofori injured in a motor vehicle accident on April 8, 2002, as claimed?

2. If Mr. Ofori was injured in a motor vehicle accident, is he entitled to receive:

• weekly caregiver benefits pursuant to section 13 of the Schedule?

• medical benefits for treatment claimed pursuant to section 14 of the Schedule?

• his expenses in respect of the arbitration under section 282(11) of the Insurance Act?

• interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

3. Is Mr. Ofori liable to pay Allstate's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Mr. Ofori was involved in a motor vehicle accident as defined by the Schedule, but has not proven that he suffered any compensable impairment arising from that accident.

2. Because Mr. Ofori has not proven the existence of an impairment arising from the accident, he is not entitled to either caregiver or medical benefits. I leave the question of expenses to a later date.

EVIDENCE AND ANALYSIS:

Was there an Accident?

Mr. Ofori reported to his insurer, Allstate, that he had been involved in an accident on April 8, 2002. His report identified the location of the accident as the intersection of Kipling Avenue and Hinton Road in Etobicoke. While travelling northbound on Kipling, he claimed to have been hit by a vehicle that ran a stop sign on Hinton.

The other vehicle was driven by Mr. Mikail Nur.

Both Mr. Ofori's vehicle and Mr. Nur's vehicle were subsequently taken to a collision reporting station where photographs of the vehicles were taken, and the drivers completed the necessary forms and filled out accident reports.

Both Mr. Nur and Mr. Ofori reported other passengers in their cars at the time of the accident.

Mr. Ofori, after visiting his physician, notified Allstate of the collision with the Nur vehicle. He subsequently filed a claim for accident benefits.

His accident benefit claim was never paid by the Insurer. After the usual initial investigation and the taking of statements, the Insurer, for some reason, referred the accident information to a firm which analysed such events and drew conclusions about events and conditions surrounding motor vehicle collisions, commonly referred to as accident reconstructionists.

Their analysis of the damage to the vehicles and the reports submitted to the collision centre and the Insurer, concluded that the two vehicles colliding in the manner presented could not have created the damage reported.

From that point on, the Insurer took the position that there had not been a true motor vehicle accident as that term was used in the Schedule, and that any claimed disability, even if supported by medical evidence, could not give rise to a claim for statutory accident benefits.

In fact, the reports relied upon by the Insurer were more specific than that. Its experts claimed that the damage to the Toyota², at least, was caused by the impact of a six inch wide rectangular object, rather than a motor vehicle. Put more succinctly, the Insurer was alleging that no actual accident happened, and the claim resulted from an event, planned by the participants, supported by evidence of a "collision" that had been created by hitting the front of one vehicle with a rectangular object. There was, as stated in the Insurer's Reply, "no accident."

Mr. Ofori, however, maintains, as do his passengers, that he was struck by a vehicle coming out of a side-street, while driving north on Kipling Avenue on April 8, 2002, and that this "incident" constitutes an accident for the purposes of the Schedule. Mr. Ofori's statement about the accident and the damage to the vehicles was also confirmed by the other driver, Mr. Mikail Nur.

In addition, both vehicles were taken to a collision reporting centre where photographs were taken of damage to both vehicles.

Section 4 of the Schedule states:

The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications...

Likewise sections 12, 13, 14 and 15 all repeat the same phrase as a pre-condition for non-earner, caregiver, medical, and rehabilitation expenses.

Subsection 2 (1) of the Schedule defines the meaning of the word "accident:"

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Generally, in any insurance claim, the onus is on an insured person to demonstrate that a claim comes within the parameters of an insurance policy, and that the claim meets any pre-conditions set by the policy for the payment of a claim by an insurer.

There seems to be no issue raised as to whether Mr. Ofori was insured by Allstate, or whether the policy contained statutory accident benefits that Mr. Ofori could access in the event of an accident. The only real issue in argument has been whether the incident reported to Allstate constitutes an "accident" within the meaning of the Schedule, and is capable of supporting a claim for benefits.³

As noted earlier, Mr. Ofori testified as did Mikail Nur, the other driver, Prince Boateng and Hagar Addai, passengers in Mr. Ofori's car. Their testimony, if believed, confirmed that the accident occurred at the time and place reported, and that the damage to the cars resulted from the accident. There were discrepancies between witnesses of the exact positions of the vehicles as well as of the speed and angle of contact. These discrepancies were described by counsel for Mr. Ofori as the normal differences between eyewitnesses, discrepancies that give their testimony the ring of truth. The Insurer, on the other hand, argued that the discrepancies were indicative of a lack of credibility on the part of the witnesses.

Mr. Ofori also tendered a report, dated November 5, 2002, by Walters Forensic Engineering, written by two engineers, Mr. Jeff Archold, and Mr. Saad Nasser.

Among their conclusions, after examining the report of the Insurer's consultants, the accident reports, photographs of damage, statements by the drivers, the two engineers concluded:

It is our opinion that the height and length of the impact damage to the Chevrolet is consistent with being struck by the front of the Toyota as the Toyota was braking, as reported by Mr. Nur.

As an overall conclusion the authors stated:

It is our opinion that Mr. Nur did not stop at the 'stop' sign at the intersection of Hinton Road and Kipling Avenue, before accelerating, skidding, and striking the passenger side of Mr. Ofori's Chevrolet. This is consistent with Mr. Ofori's reported information.

It is also our opinion that there was no evidence of multiple impacts to the passenger side of the Chevrolet.

It is further our opinion that the height of the crush damage to the Chevrolet was consistent with the height of the bumper of the Toyota as it was braking, as reported by Mr. Nur.

In addition, it is our opinion that the 15 cm wide damage to the centre-left of the grille/hood of the Toyota, above the front bumper, could have been caused by an impact to the 'B-pillar' of the Chevrolet.

It is also our opinion that the rain and the likely angle of impact of the Toyota would reduce the paint transfer and scraping to the vehicles.

It is finally our opinion that the damage to the vehicles is consistent with a lateral impact by the Toyota as it was braking.

As noted, the Walters report was properly tendered, pursuant to the Dispute Resolution Practice Code (4^th Edition), (the "Practice Code"), but the authors did not testify. Nor did counsel for the Insurer request that the authors be made available for cross-examination.

Rather than cross-examining the experts directly, the Insurer decided to file a supplementary report by TSI Solutions Inc. ("TSI"), dated November 28, 2002, addressing some of the issues raised in the Walters report and, as well, calling the authors of the supplementary report⁴ to testify directly.

The supplementary report, not surprisingly, took the Walters report to task, and attacked its conclusions. Mr. Rick Hawkyard, the consultant for the Insurers and one of the authors of the supplementary report, found:

1. We note that the Walters Engineering report concludes a rectangular object caused the damage at the edge of the Toyota hood, as was concluded in our original report. There is no description or definition of a rectangular component on or attached to the Chevrolet and no description of any pre or post-collision demarcation representing a rectangular object.

2. It is our opinion the damages on the side of the Chevrolet are not consistent with a lateral impact by the Toyota.

• There is no feature on the Chevrolet consistent with the rectangular impact on the front of the Toyota across the bumper to the leading edge of the hood.

• There are no marks or impressions on the side of the Chevrolet consistent with a lateral impact by the front licence plate and bumper of the Toyota.

• The vertical interval of damage on the Chevrolet is not consistent with the vertical interval of damage on the Toyota.

3. We note the alternative theories restricting impact contact on the Toyota to the corner of the bumper exclude the impact at the center (sic) of the Toyota hood.

Mr. Hawkyard, in his testimony at the hearing, reiterated his objections to the scenario put forward by the Applicant's experts and once again pointed out its deficiencies as he saw them.

Essentially, we have a situation where the parties have presented opposing, irreconcilable theories propounded by their experts. I am not persuaded by either side that the scenario presented by their experts comprises the only credible explanation for the damages suffered by Mr. Ofori's and Mr. Nur's cars.

Expert opinion evidence is meant to assist the tribunal in reaching an understanding of processes that are beyond the knowledge and expertise of the average lay-person.⁵

While there is a general agreement about the utility of expert evidence in specific circumstances, there has been some difficulty defining its exact parameters.

McIntyre J., speaking for the Supreme Court of Canada in The Queen v. Beland and Phillips (1987) 1987 CanLII 27 (SCC), 36, C.C.C. (3d) 481, outlined his view of the function of an expert witness.

The function of the expert witness is to provide for the jury or other trier of fact an expert's opinion as to the significance of, or the inference which may be drawn from, proved facts in a field in which the expert witness possesses special knowledge going beyond that of the trier of fact. The expert witness is permitted to give such opinions for the assistance of the jury. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received.

Essentially the same approach to expert testimony was taken in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, which, in a decision written by Sopinka J., set out the general criteria for the admission of expert testimony in the Canadian judicial process. Summarized briefly, an expert must be properly qualified, the evidence must be relevant, the expert evidence must be necessary to assist the trier of fact, and there must be no other exclusionary rule that would prevent its admission.

In this matter, the Insurer's reports were properly tendered pursuant to Rule 42 of the Practice Code. Likewise, the Applicant's report was tendered and, along with the balance of the document brief, made an exhibit.⁶

The Insurer's experts were qualified prior to testimony, and accepted, with the consent of both parties as experts in motor vehicle accident collisions.

The Applicant's expert reports were tendered as such, and, since they did not testify, were not subject to a qualification process at the hearing. Nonetheless, the Insurer, by not objecting to the filing of the report, and not cross-examining the experts themselves, implicitly accepted their presentation as individuals with some greater expertise than the average lay-person in motor vehicle accidents.

It is also important to note that although the Applicant's expert report was filed, the Insurer chose not to impugn it directly by cross-examination of its authors. Rather, the Insurer tendered its own contradictory report and called its own witnesses, without affording the Applicant's experts an opportunity to respond directly to its challenges.

The Court of Appeal in O'Brien v. Shantz [1998] O.J. No. 4072 has reaffirmed the application of the rule in Browne v. Dunn in Ontario. The court noted the:

general principle that a party wishing to impeach the credibility of a witness must ordinarily put the contradictory material to the witness in order to give the witness an opportunity to explain it. This principle, at bottom, a principle of fairness is reflected in the House of Lords decision in Browne v. Dunn (1893) 6 R. (H.L.) And in ss. 20 and 21 of our Evidence Act.

While the Insurer may have given some notice of the opinions it intended to present by tendering its own expert report, it failed to give the witness it was impugning the opportunity to respond to its challenges and criticisms. As Keenan J. in J.B. Printing v. 829085 Ontario Ltd. [2003] O.J. No. 1230 found:

It is an outright violation of the rule in Browne v. Dunn to fail to put to the witness a proposition to be advanced later by the defence. It is an omission that is troubling, and reduces the credibility of the later testimony that the machine was damaged and then repaired to allow it to perform at a sufficient capacity. The best course of action would have been to put this contention directly to the witnesses for JB Printing.

Mr. Kirby, counsel for the Insurer, is an experienced counsel, well aware of the Browne v. Dunn requirements. Although he apparently provided the supplementary report to the Applicant prior to the hearing as required by the Rules, I have no idea how the matter of the reports was framed between counsel, and whether any representations were made by either side outside of the hearing as to their acceptance.

Whatever information may have been imparted prior to the hearing, the only evidence I can properly consider is that presented to me at the hearing. I cannot assume that a witness does not have a legitimate answer to a challenge by the other side, just because yet another report was not submitted.

The question of fairness to a witness is not addressed by the mere filing of an opposing report. Allstate should have indicated to counsel for Mr. Ofori that his experts were required for cross-examination, and put the questions to them directly in cross-examination.

The provision of expert evidence by filing reports is an innovation and a departure from the normal rules of evidence and practice. It can be useful in providing information to the trier of fact, and can make for a more efficient hearing process. While practice at the Commission specifically allows the filing of expert reports, there is no provision in the Rules suppressing the long-standing right of a witness to have any challenges to his or her evidence presented to him or her in person, with the full opportunity to answer any such questions.⁷

If a party chooses not to cross-examine a witness as part of the hearing, I must assume that such a decision was not made lightly and was made in light of the provisions of the Browne v. Dunn rule, which has been in place for more than a century.

Like Keenan J., I feel that I have no option but to conclude that the failure to put the Insurer's challenges to the Applicant's expert witnesses directly impairs the credibility of the Insurer's own supplementary report and related testimony.

Even without problems of procedural fairness, I am faced with other difficulties in considering the expert reports.

While some expertise was implicitly conceded, there was no consensus between the parties as to whether the other's experts could provide an insight, greater than the average individual, into the dynamics of the incident or accident, and as to whether the opinions of either group could shed any significant light onto the key issue of whether an "accident" as defined by the Schedule actually happened. In other words, the ultimate relevance of both sets of reports was a live issue.

Nor was there any concession by either party that the other's expert opinions were in any way necessary to the trier of fact.

While there were no compelling reasons to exclude the expert evidence, there remains an open question as to the importance to be accorded to the various reports, and the manner in which or whether the opinions imparted can be assimilated into a decision on the issues before the tribunal.

Both sets of reports set out to establish whether or not the vehicles could have collided on April 8, 2002.

The first report from TSI, dated May 6, 2002, compared photographs of the damage on both vehicles, and measured the location of the damage using a ruler. Its author, Mr. Hawkyard, read the statements of the drivers given to the collision reporting centre, and developed a scenario that he believed consistent with the height of the actual damage and the drivers' reports.

The expert's work may be seen to have been comprised of two separate tasks. The first was to find the vehicles, take photographs and measure the location of the damage. The second, was to develop the scenario that reconciled the evidence gathered. To Mr. Hawkyard, this was the conclusion that Mr. Nur's vehicle had been repeatedly struck by a 6 x 6 inch blunt object and that Mr. Ofori's vehicle had been subjected to multiple impacts when not in motion.

The application of expertise involved in the analysis appears to have been the correlation of the damage measurements of the two vehicles.

The expertise in question for Mr. Hawkyard was that of a police officer investigating motor vehicle accidents over a period of years. Indeed, in his CV he noted having investigated some 4,000 accidents.

Likewise, the second TSI report utilized another ex-police officer as investigator. Mr. Rob Seaton spent some 13 years with the OPP, as well as 9 years with the Metropolitan Toronto Police Force. He had, as well, instruction in collision reconstruction at the Ontario Police College.

Although neither investigator visited the accident scene, it is significant that Mr. Ofori's own investigative team relied on the careful measurements and photographs contained in Mr. Hawkyard's reports. Given their extensive police experience, it is not surprising that Messrs. Hawkyard and Seaton provided professional and thorough documentation of the damage to the two vehicles.

I have no hesitation in finding that, given acceptance by the Applicant's experts, the direct observations and measurements of Mr. Hawkyard, attached to his report, could constitute the "proved facts" required for the foundation of an expert opinion as identified by McIntyre J. in Beland (supra).

I am not so willing to accept that the implicit and explicit assumptions made by both sets of investigators concerning the speed, location, and direction of movement of the vehicles can equally constitute such "proved facts."

As testimony by eyewitnesses at the hearing showed clearly, there is no consensus as to such matters. The Walters report assumed that the Nur vehicle must have run the stop sign. Mr. Nur, himself, stated that he had stopped and then accelerated. There were questions about whether one or more of the vehicles applied the brakes, or skidded, or whether Mr. Nur spun his wheels in acceleration.

All witnesses agreed that the two vehicles collided as Mr. Nur's vehicle suddenly came out of Hinton onto the northbound Kipling roadway. Beyond that nothing else is clear. No one investigated the supposed crash site or checked to see if there was physical evidence of a collision. Even the police did not attend at the scene of the accident. There is no consensus even on the most basic elements of this reported incident.

Whatever the truth of the events that led to the property damage on the two vehicles, I do not accept that one must take the accident reports submitted by the drivers as either truth or falsehood. Differences in such reporting by witnesses to sudden and stressful events are to be expected and are not in themselves indicative of fraud or mis-reporting.⁸

What is clear is that the TSI and Walters reports present differing scenarios based on different assumptions, and draw wildly different conclusions.

The TSI reports state that the accident could not have happened as described in the accident reports and cite a mis-alignment of the crush areas in support. The Walters report notes several reasons, including the lowering effect of sudden braking on the front of the Nur vehicle to account for inconsistencies. It, too, presents a possible scenario as to how the damage might have been inflicted on the vehicles.

Although both reports raise interesting and valid questions about the mechanics of the alleged collision, I do not accept that either report clearly establishes what happened between the two vehicles the evening of April 8, 2002.

I am left then with the photographs and the measurements of the damage on the two vehicles as well as the evidence of the drivers and passengers in the two vehicles. I do not accept that any analysis of such basic evidence necessarily involves an analysis of the nature that "...ordinary people are unlikely to form a correct judgement about it if unassisted by persons with special knowledge."⁹

Even if one accepts at face value the one conclusion in the TSI reports that was supported in the Walters report, that a rectangular object caused the damage at the edge of the Toyota hood, and further accepts the TSI conclusion that this rectangular object was a 6 x 6 used to batter the vehicle, the fact remains that, in the absence of cogent evidence of a conspiracy between the two drivers, evidence that Mr. Nur may have enhanced the damage to his own vehicle, does not prove anything against Mr. Ofori, nor prove that the initial collision did not happen.

While I accept that in this forum the expert opinions are admissible, I do not accept that where there is conflict between reliable experts, I must rely on the conclusions of one or the other in deciding whether an accident, as defined by the Schedule, took place. Rather, I must weigh the totality of evidence, in the context of this arbitration hearing, and dismiss unsupported surmise and conjecture.

A useful step in this analysis may be to consider the evidentiary burdens that should be attributed to the individual parties on the various issues. Viscount Dunedin in Robins v. National Trust 1927 CanLII 469 (UK JCPC), [1927] A.C. 515 examined the utility of such an examination:

...onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.¹⁰

As noted earlier, Mr. Ofori has the general onus in this matter in making his case.¹¹

Whether the Insurer responds or not with evidence or submissions, he is obliged to present credible evidence that on a balance of probabilities proves that he has met the test for compensation under the Schedule.

Counsel for Mr. Ofori has suggested that since Allstate has alleged fraud, that it assumes the primary onus of proof. Since the fraud alleged in this matter is the reporting of a spurious accident, the burden of proving that the accident was fraudulent would fall upon the Insurer. In essence because of the allegation of fraud, Mr. Ofori is excused the need to prove that a pre-condition of the claim was met.

This might be the case if the issue of whether or not an accident took place was heard as a true preliminary issue, with the onus clearly on the Insurer.¹² In this matter, however, the Insurer has made no such motion, and the question of whether there was an accident remains the Applicant's case to prove.

The Ontario case of Shakur v. Pilot Insurance (1990) 1990 CanLII 6671 (ON CA), 74 O.R. (2d) 673 involved a claim for reimbursement for allegedly stolen jewellery. Pilot resisted the claim since it believed that the insured may have had a hand in the disappearance. In essence, as in this matter, the insurer responded to the claim with an accusation of fraud.

Griffiths J.A., speaking for the Court of Appeal, stated:

It is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy. In this case, the burden rested on the respondent and remained on the respondent to prove on the balance of probabilities that a theft of her jewellery had occurred. That the appellant, in denying the allegation of theft, impliedly alleged that the respondent was fraudulent in putting forward the claim in no way shifted the basic burden of proof resting on the respondent.¹³

The above case has often been cited in support of the proposition that the entirety of the onus in an insurance claim falls upon the Applicant.¹⁴

That is not to say that the burden of proof in an action cannot shift to an insurer in certain circumstances. As Viscount Dunedin remarked, "Now in conducting any inquiry, the determining tribunal, be it judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on the side of the other, or as it is often expressed, that in certain circumstances the onus shifts."¹⁵

What, if anything, can shift the onus from the insured? In an analysis of Shakur and Bevacqua (supra) and other similar Ontario cases¹⁶, Hambly J. in El-Ash v. Trader's General Insurance Co. [2001] O.J. No. 3335 noted that the "...insurer seems to have admitted that the plaintiff insured had proved a prima facie case of theft. In these circumstances in denying the claim, the insurer conceded that it bore the burden of proving the alleged fraud."

Whether a prima facie case¹⁷ was either conceded or proven, once such a case is made out, there is a potential shift in the evidentiary burden on that issue, or an inference that may be drawn in the absence of such responding evidence.

Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63 stated:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

Lord Mansfield's dictum has been interpreted by a long line of decisions recognizing what has been termed as a shifting of the secondary, or evidential burden of proof. This has been also referred to by some commentators as a tactical shifting of the burden of proof.

Langton J. in The Kite [1933] All E.R. Rep. 234 gave a cogent example of shifting evidentiary burdens.

If that be a correct statement of the law - and I humbly think it is - what the defendants have to do here is not to prove that their negligence did not cause the accident. What they have to do is to give an explanation, and a reasonable explanation, which, if it is accepted, is an explanation showing that it happened without their negligence. And they need not go even so far as that because, if they give a reasonable explanation, which is equally consistent with the accident happening without their negligence as with their negligence, they have again shifted the burden of proof back to the plaintiff to show - as he always has to show from the beginning - that it was the negligence of the defendant that caused the accident.

While it may no longer be fashionable to refer to shifting burdens,¹⁸ in certain circumstances an adjudicator may draw an inference from the failure of a party to respond to evidence adduced at a hearing.

In Bevacqua (supra), Finch J.A. of the British Columbia Court of Appeal commented on the effect of the shifting burden as follows:

It would be for the insurer to show that on all the evidence an inference as to the insured's participation in, or procurement of, the loss has been clearly established. The fact that the insurer bears the onus of proof, once the insured has shown that the vehicle was vandalized may well influence the way in which the parties present their case, and may also affect the trial judge's approach to issues of credibility and the inference which can be properly drawn from the evidence as it then appears.

When restated as "If the applicant has proven that he is entitled to indemnification under the terms of his policy (proof that the car was vandalized), then the insurer may bring evidence that it is entitled to rely on exceptions to the policy to avoid paying the claim," the actual differences in approach between the British Columbia and Ontario courts are not so apparent.

Following Shakur (supra), Hambly J. in El-Ash (supra) defined the necessary approach to an allegation of fraud in Ontario:

1. Has Manny proved on a balance of probabilities that a stranger stole and damaged his vehicle?

2. If the answer is no, has Traders proved on a balance of probabilities to a degree higher than required for civil negligence that Manny staged a theft of his own vehicle, either by taking it himself or having others take it, abandoned it, damaged it and attempted to commit a fraud on Traders by claiming the cost of repairs?

The only real difference between Hambly J.'s approach and that of the British Columbia courts appears to be that he demands proof on a balance of probabilities, while the other cases seem to require only prima facie proof that a party is entitled to indemnification in accordance with the terms of the policy for the onus to shift to the insurer.

Given Hambly J.'s comments on the Hairiri and Brown cases, discussed earlier, and the English cases discussed earlier, it is likely that prima facie evidence would suffice to trigger a secondary burden of proof on the insurer.

While Ms. Shakur and Mr. El-Ash in their respective cases were only entitled to indemnity for damage or theft committed by others, and so had to prove the intervention of others, Mr. Ofori is entitled to benefits under the Schedule arising out of an incident in which the use or operation of a motor vehicle directly causes the impairment or damage giving rise to the claim. Consequently, to resolve this first sub-issue, Mr. Ofori must only prove that an accident, as defined by the Schedule, took place.

I find that in Mr. Ofori's case there was such an incident involving the use or operation of a motor vehicle.

I come to this conclusion for the following reasons.

1. Mr. Ofori provided the Insurer with prima facie evidence at the time of the claim of an incident involving the two vehicles.

2. Notwithstanding general credibility issues, which are touched on later, his testimony at the hearing on this issue was corroborated by the physical evidence of the damage to the two vehicles and the statements of eyewitnesses. By any reckoning he met the standard of proof, on a balance of probabilities, that an incident involving contact between the two vehicles took place on April 8, 2002.

3. Mr. Ofori provided, through his expert's report, a reasonable explanation of how the damage could be consistent with an accident. It is important to note that the Insurer chose not to cross-examine the maker of this report, as was its right. Instead, it chose to attempt to impugn the report by other evidence.

4. The alternative scenario sketched out by the Insurer, which involved removing the vehicles to another place and battering them to oblivion with blunt objects to simulate accident damage is too improbable, even if, as alleged, the owners of the vehicles were colluding in some way to create an "accident."

5. The Insurer did not cross-examine the Applicant's expert, leaving his opinions on the circumstances of the incident uncontradicted, and weakening the credibility of its rebuttal report.

6. The Insurer, faced with at least prima facie evidence of an incident involving two motor vehicles, did not meet the resulting shift of the "tactical" burden of demonstrating that, in its own words, there was "no accident."

My finding that there was an accident as defined by the Schedule does not mean that the Insurer is necessarily obliged to pay the benefits claimed to Mr. Ofori.

As noted earlier, he retains the overall burden of proof that he meets the policy conditions for the payment of caregiver benefits, medical benefits as claimed, interest and his expenses.

The Insurer is also entitled to show that, even if Mr. Ofori meets the burden of proving general entitlement, he is disentitled to the payment of benefits by reason of fraud or any other policy exclusion that they rely upon.¹⁹

Disability Arising from an Accident

As noted earlier, Mr. Ofori visited a physician following the accident. Dr. Wing King issued a disability certificate on April 22, 2002, noting that he had first examined Mr. Ofori on April 11, 2002, some three days post-accident.

Dr. King reported complaints of pain in lower back, both shoulders, neck and chest, as well as headaches and trouble sleeping. He diagnosed cervical and lumbar strain, and suggested physiotherapy follow-up. He also indicated that Mr. Ofori could not perform bending and lifting due to back and neck pain. Tylenol 3 was prescribed.

On May 1, 2002, Mr. Ofori was interviewed by Crawford Adjusters Canada on behalf of the Insurer. The summary of the interview, created by Crawford, reports Mr. Ofori as stating:

I went the same day to the collision centre on Weston Rd. and Finch. I didn't notice any injuries at that time. The next morning when I woke up, I felt cold and weak. I felt pain in my neck, shoulders, and low back. I also had headache. I went to a walk-in clinic that day located at Jane and Wilson. They prescribed Rolaxisal for my muscles. I saw my family doctor on April 10, 2002. He is Dr. King Wing. He has not been my family doctor very long as my previous doctor is far away. Dr. Wing prescribed Tylenol 3 and recommended that I go to therapy.

Mr. Ofori's statement continued:

I find the therapy is helping. I have never been injured in a car accident before this. I have no pre-existing medical conditions.

At the hearing, Mr. Ofori was asked about the statement given to the Insurer. He confirmed that he signed such a statement following an interview at his lawyer's office, in the presence of an interpreter and the insurance adjuster.

On cross-examination, counsel for the Insurer questioned him about the statement that he had never been injured in a motor vehicle accident.

Mr. Ofori denied having made such a statement, but agreed that he has reported neck and back pains for as far back as his medical records go.

When asked about specific visits to Dr. Okatwe from 1995 to 1998 indicated in the medical records that apparently involved such complaints, Mr. Ofori could only reply that he didn't recall or didn't remember.

Mr. Ofori was then asked about visits with Dr. Kintu, some of which overlapped those with Dr. Okatwe, but he could not recall much either. He did confirm, however, that Dr. Kintu was part of a walk-in clinic. He did not recall any motor vehicle accident in 1998 nor whether he had back complaints nor whether he had attended a chiropractor at that time.

He confirmed that he had a motor vehicle accident in November 2001, some 42 months prior to the one giving rise to this hearing, but claimed that he could not remember which doctor he had visited for treatment. Dr. Safieh's records and Mr. Ofori's statement to the Insurer indicate that Dr. Safieh was his attending physician.

As part of his examination, Mr. Ofori stated that he only changed physicians when he moved.

On further questioning, Mr. Ofori confirmed that Dr. Safieh had been his physician since 1999, and that he had hurt his neck, back and shoulders in the accident, and had made an insurance claim.

When asked again about the signed statement indicating no accidents and no pre-existing conditions, Mr. Orfori reiterated that what he had told the interpreter was misunderstood. He had, however, no recall of the matters that required his attendance on Dr. Safieh, other than to note that when he has accidents he sees a doctor.

When questioned about the sudden change of physician following the April accident, Mr. Ofori replied that Dr. Wing King was closer. He confirmed that he had not moved, and that he never attempted to see Dr. King before the accident. Nor did he mention to Dr. King anything about prior accidents or injuries, since he wasn't asked.

Nor was there any mention of previous neck or back pain because "he didn't ask."

On the disability certificate completed by Dr. King he indicated that he had not treated Mr. Ofori for similar conditions. Of course, he had never treated Mr. Ofori before for anything.

A similar pattern of selective reporting characterized Mr. Ofori's dealings with other treatment providers, including the rehabilitation clinic.

The reports of Mr. Ofori's principal complaints of neck and back pain are dependent on the veracity of his reporting to his health professionals. While pain and related complaints can create significant impairments, they cannot be measured or corroborated by external measurement.

The credibility of Mr. Ofori's claim that he suffered an impairment from his accident sufficient to support his claim for accident benefits is totally dependent on his own credibility, both on the witness stand and in his dealings with his treating physicians.

Given his failure to disclose previous accidents and claims involving the same complaints, particularly the November 2001 accident from which he had claimed to be disabled until just prior to the April 2002 accident, creates a significant problem in accepting his claim of an impairment arising from the April 2002 accident that is the subject of this claim.

My opinion is reinforced by the unaccounted for change in physicians coinciding with Mr. Ofori's motor vehicle accidents, and his testimony that he remained on Employment Insurance subsequent to the April 2002 accident and was actively looking for work at the time.

In the absence of credible, corroborating evidence of disability I do not accept that Mr. Ofori suffered an impairment arising from his accident significant enough to support his claims for caregiver, medical benefits, or any other benefits.

Other reasons for disentitlement

Even if Mr. Ofori did in fact suffer an ongoing disability arising from the motor vehicle accident of April 8, 2002, there are cogent reasons for not finding entitlement.

Although I have found that the Insurer has not proven its case that Mr. Ofori and Mr. Nur conspired to create an "accident" that never happened, there are elements of his conduct during the claims period that would disentitle him to the statutory accident benefits that he has claimed.

Section 233(1)(c) of the Insurance Act provides that where:

The insured wilfully makes a false statement in respect of a claim under a contract, a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited.

This is a restatement of the common law position expressed by Willes J. in Britton v. Royal Insurance (1866) 4 F. & F. 905, that: "(I)f there is a wilful falsehood or fraud in the claim, the insured forfeits all claim whatsoever upon the policy."

The question of what constitutes such a wilful falsehood was likewise established in, Derry v. Peek 1889, 14 App. Cas. 337 (H. of L.):

Fraud is proved when it is shown that a false representation has been made: (1) knowingly, or (2) without belief in its truth, or (3) recklessly, carelessly whether it be true or false.²⁰

In this matter, Mr. Ofori made a statement, at his lawyer's office, with the assistance of an interpreter, stating that he had never been injured in a motor vehicle accident and that he had no pre-existing conditions. He admits signing that statement, but now maintains that the interpreter got it wrong.

This is curious, given that he allowed Dr. King to make the same representation on his behalf to the Insurer and since, as he admitted in his evidence, he didn't bother informing the doctor of any pre-existing conditions or earlier accidents. This conduct, combined with the unexplained change of physician that coincided with the accident, suggests to me that, for some reason Mr. Ofori wished to deprive the Insurer of any knowledge that he had recently sustained similar injuries in a motor vehicle accident, and had a history of similar back and shoulder complaints.

I do not accept that the interpreter got it wrong.

I do not accept either, that the failure to disclose the recent accident and injuries to his physician and the Insurer was inadvertent or an "honest mistake" as defined in Chapman v. Pole (1870) 22 L.T. 306.²¹ Rather it was done in a manner calculated to advance his claim for accident benefits.

I find that, given his obfuscation and overall pattern of withholding pertinent evidence about his claimed injuries, Mr. Ofori wilfully made false statements as part of his claim, and so deprived himself of the benefit of his right to be indemnified by his insurer. I find, as well that the Insurer provided cogent and convincing evidence of this conduct that meets the standard of proof established by Lord Denning in Bater v. Bater [1950] 2 All E.R. 458.²²

Disposition

For the preceding reasons, although I find that Mr. Ofori was involved in a motor vehicle accident on April 8, 2002, I find that he has not proven, on the balance of probabilities, that he suffered a disability arising from that accident, and is consequently not entitled to either caregiver or medical benefits pursuant to the Schedule as claimed.

I find, as well, that, even if Mr. Ofori had made out a case for benefit entitlement, there is cogent evidence "to a degree of probability commensurate with the occasion"²³ that he made false and misleading statements as part of his claim for statutory accident benefits and should be found to be disentitled to any benefits pursuant to section 233(1)(c) of the Insurance Act.

EXPENSES:

Should the parties not be able to agree on the issue of expenses, I remain seised of this matter. The parties shall have 30 days from the issuance of this decision to advise the Commission whether they intend to make further submissions on this issue.

November 20, 2003

John Wilson Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 164

FSCO A03-000027

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOSEPH P. OFORI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Ofori has not proven the existence of an impairment arising from the accident, and is not entitled to either caregiver or medical benefits. Consequently, his arbitration application is dismissed subject to any claim for expenses.

November 20, 2003

John Wilson Arbitrator

Date

Footnotes

1. 1The 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, 114/00 and 482/01.
2. 2The Toyota is Mr. Nur's vehicle; the Chevrolet is Mr. Ofori's vehicle.
3. 3This is not to suggest that Mr. Ofori does not bear the burden of demonstrating that his claims meet the requirements of the Schedule.
4. 4Authors of the TSI Supplementary Report - Mr. Rick Hawkyard and Mr. Rob Seaton
5. 5See Kelliher (Village of) v. Smith 1931 CanLII 1 (SCC), [1931] S.C.R. 672 where the court (Rinfret, Lamont and Cannon JJ) found that the subject of the enquiry taking place "must be such that ordinary people are unlikely to form a correct judgement about it, if unassisted by persons with special knowledge."
6. 6The Commission explicitly encourages the presentation of expert evidence in this manner. The pre-hearing letter in this matter states at p. 4, "Instead of calling expert witnesses such as doctors or accountants to testify, the parties are encouraged to file their reports whenever practicable."
7. 7The current practice at the Commission is that parties make the authors of reports that are filed available for cross-examination at a hearing by the opposing side, when requested.
8. 8Popularly, Rashoman, a noted 1950 film by the late Akira Kurosawa, is often referred to in the context of eyewitness accounts. In the film, a single event is described from the point of view of four different witnesses, resulting in four completely different stories. For a more academic approach, see "Errors of Recall and Credibility: Can Omissions and Discrepancies in Successive Statements Reasonably be said to Undermine Credibility of Testimony?" By Dr. Juliet Cohen, Vol. 69, Part 1 Medico-Legal Journal, May 2001.
9. 9Kelliher v. Smith (supra)
10. 10Decision of the Privy Council on appeal from the Supreme Court of Canada
11. 11The classic definition of the burden of proof in insurance cases was made by Bailhache J. in Munro Brice & Co. v. War Risks Association Ltd. [1918] 2 K.B. 78. According to him, the insured must prove that the loss claim was caused by the general risk insured against. If there are qualifications by exception to these general risks, the insurer has the burden of proving that the case falls within the exception. If there is a qualification or precondition of the entire general risk, then the onus is on the insured to demonstrate that the claim comes within the general risk insured.
12. 12To quote Robins (supra) again, "Onus is always on a person who asserts a proposition or fact which is not self-evident."
13. 13The decision in Shakur, while apparently good law in Ontario, is not uncontroversial. In Bevacqua v. Insurance Corporation of British Columbia 1999 BCCA 553, [1999] B.C.J. 2178, the B.C. Court of Appeal distinguished Shakur on the basis that an insured, by showing a prima facie case of loss within the ambit of his insurance coverage, can shift the onus to the insurer to prove the insured's participation in causing the loss.
14. 14See Bevacqua v. Insurance Corp. of British Columbia (supra)
15. 15See Robins (supra)
16. 16Hairiri v. Allstate [1997] O.J. No. 3758 and Brown v. Royal Insurance Company of Canada [1996] O.J. No. 2386
17. 17"A prima facie case exists when there is evidence, on each of the elements of the offence, which, if believed to be true, would enable a reasonable trier of fact to convict." Per Paciocco & Stuesser The Law of Evidence Toronto, 1999
18. 18Sopinka, Lederman and Bryant, in the Law of Evidence in Canada, 2nd edition, state at p. 75 "Including the so-called tactical shifting of the evidential burden as part of the law of evidence adds nothing to one's understanding of the incidence or satisfaction of the evidential burden."
19. 19Munro Brice & Co. v. War Risks Association Ltd. (supra)
20. 20Approved by the Supreme Court of Canada in Redican v. Nesbitt (1924) 1923 CanLII 10 (SCC), S.C.R. 135
21. 21"A man may make a mistake in his claim and it may be quite honestly. If for instance a man either fails to recollect the precise quantity of goods he has on his premises at the time of the fire, or mistakes the value of those of which he was in possession, and thus he presses a claim according to what he believes honestly to be true, but which may, in the end, turn out to be mistaken, the only consequence which ensues is, that inasmuch as the contract of insurance is simply a contract of indemnity, he can only recover to the extent of the real value of the goods which he has actually lost." - Chapman v. Pole
22. 22Approved by the Supreme Court of Canada in Continental Insurance Co. v. Dalton Cartage Co. [1982] 1 S.C.R., Laskin C.J. summarized this as, "there is a matter of judgement involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered."
23. 23Bater v. Bater (supra)