Neutral Citation: 2004 ONFSCDRS 106

FSCO A03-001207 and A03-001173

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARYAN A. NUR and FOWSIA ADEN

Applicants

and

WESTERN ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Jeffrey Rogers

Heard:

June 8, 9 and 10, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mohammed Muslim, solicitor for Ms. Nur and Ms. Aden

Christopher J. Schnarr, solicitor for Western Assurance Company

Issues:

The Applicants, Maryan A. Nur and Fowsia Aden, claimed that they were injured in a motor vehicle accident on January 18, 2003. They applied for statutory accident benefits from Western Assurance Company ("Western"), payable under the Schedule.¹ Western did not accept that they were injured in an automobile accident within the meaning of section 2 of the Schedule and refused to pay any of the claimed benefits. The parties were unable to resolve their disputes through mediation, and Ms. Nur and Ms. Aden applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Counsel for the Applicants withdrew the claim for the cost of a rental car for Ms. Nur.

Therefore, the issues in this hearing are:

Were the Applicants injured in an automobile accident within the meaning of section 2 of the Schedule? If yes,
Are the Applicants entitled to the benefits they have claimed under the Schedule?
Are the Applicants entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Are the Applicants liable to pay an amount to Western that does not exceed the amount assessed against Western in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because they commenced an arbitration that is frivolous, vexatious or an abuse of process?
Are the Applicants or Western liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Result:

The Applicants were not injured in an automobile accident within the meaning of section 2 of the Schedule and they are therefore not entitled to the benefits claimed.
The Applicants are not liable to pay an amount to Western that does not exceed the amount assessed against Western in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act.
The Applicants are liable to pay the Insurer its expenses of the hearing.

EVIDENCE AND ANALYSIS:

"Accident" is defined in subsection 2 of the Schedule as "an incident in which the use or operation of an automobile directly causes an impairment..." The Applicants claim to have suffered an impairment as a result of an accident. More specifically, they claim to have been injured in a collision between Ms. Nur's white Dodge Caravan and a black Jeep Cherokee, owned and driven by Dinesh Sharma, at the intersection of Islington Avenue and Thorold Gate.

The Insurer's position is that the collision did not occur.

The Insurer called several witnesses, including Alexander Cazin, an expert in motor vehicle accident reconstruction, to dispute the Applicants' version of the events. The only witnesses for the Applicants were the Applicants themselves. My decision turns on the Applicants' credibility. For the reasons below, I do not find the Applicants to be credible witnesses and I have made an order accordingly.

Both Applicants testified that the accident happened at the intersection of Islington Avenue and Thorold Gate. There were two other passengers in the van, two sisters that Ms. Nur picked up after she picked up Ms. Aden. Ms. Aden testified that she was sitting in the front passenger seat, talking to the sisters who were in the back seat. She was not paying attention to the road. She did not see how the accident happened. She was able to say that Ms. Nur stopped at the intersection, that the impact was "heavy", the Dodge moved after impact and it spun.

In her evidence, Ms. Nur said that she slowed, but did not come to a full stop, she checked both ways and was about to turn right when she came into contact with the other vehicle. She had not seen it before impact. Had she seen it, she would have avoided it. Ms. Nur testified that the impact was severe and that her vehicle spun after impact. Ms. Nur issued the caveat that the accident was a long time ago and therefore she had difficulty remembering the details of how it happened.

Apart from their disagreement on whether Ms. Nur stopped at the intersection, the Applicants also disagreed in their evidence on other details as to what happened leading up to the accident.

The Applicants also gave statements to the Insurer at their lawyer's office on February 17, 2003 that conflicted in some details. There is also some discrepancy between their statements and their oral evidence.

The inconsistencies are not the basis of my finding that the Applicants are not credible. The inconsistencies between the Applicants' statements, and between their statements and their evidence are possibly explained by the frailty of human memory and difference in ability to recall. Indeed, if their statements were entirely consistent on all details, one could reasonably suspect collusion. With the exception of Ms. Aden's evidence that she told Ms. Nur that she was injured, they did not differ on any matter that should have been etched in their memory.

In addition, although the Applicants chose to testify without the assistance of an interpreter and were able to make themselves clearly understood, they claimed that the discrepancy between their statements and their evidence results from their lack of facility in English. Since their statements were written down by a third party and their written English may be inferior to their spoken English, I am prepared to accept the possibility that the details may have been lost or changed in the transcription. This is further reason for not determining their credibility on the basis of the discrepancies.

The police were not called to the scene of the accident. Ms. Nur testified that she did not think that she was injured and was satisfied that no one else in her vehicle was injured. She therefore saw no reason to call the police. She said that one of the sisters claimed an injury but she did not take that claim seriously. Ms. Aden contradicted that evidence. She said that she was injured and she told Ms. Nur as much. It is surprising that Ms. Nur would not recall this claim when it would have influenced her decision on calling the police.

In their statements and evidence, the Applicants described the driver of the other vehicle as a white man. The statements taken from the two passengers also gave the same description.

According to Ms. Nur, she started to experience pain overnight and that prompted her to attend at a Collision Reporting Centre. She thought that she had attended two days after the accident but she conceded that the date of the report², which is five days after the accident, must be accurate. In the report, the accident is attributed to slippery road conditions. It says she suddenly came to a stop and apparently lost control and slid into the other vehicle. The report also says that she was not injured. Ms. Nur explained that she took a friend with her to fill out the report and, although he asked her for some details, she was unable to tell him precisely how the accident happened. He told her that he knew the area where it happened and suggested that if she was going west on Thorold Gate, the other vehicle must have been going north on Islington. She did not actually see the other vehicle before impact and therefore could not really have told her friend its direction of travel. Again, I am willing to allow for the possibility that this is a valid explanation of the discrepancy between the report and Ms. Nur's evidence.

Ms. Nur testified that she did not know whether the other driver reported the accident, but he said that he would. As it turns out, Dinesh Sharma, the other driver, did report the accident.³It appears that he left his residence in Maple, Ontario and attended at the same Reporting Centre in Toronto, on the same day that Ms. Nur attended there.

Ms. Nur's evidence was that, after reporting the accident, she went to see Dr. Elahe, her family doctor. This was not the same family doctor who had treated her for injuries from an earlier accident on March 13, 2002. She had not fully recovered from her injuries in that accident. Dr. Elahe prescribed "physiotherapy or something like that" and referred her to Dr. Tong at Fourwinds Physiotherapy and Chiropractic Centre. She did not explain how she came to choose a different family doctor and physiotherapist for this accident. She stated simply that it was her right to choose. Ms. Aden also went to the same family doctor and physiotherapist.

On February 1, 2003, both Applicants then went to see Dr. Vafadar, a psychotherapist. Dr. Vafadar conducted an assessment and concluded, among other things, that they were both depressed. Dr. Vafadar recommended that they attend a course of psychotherapy. Neither Applicant could recall who referred them to Dr. Vafadar, why the referral was made or who received Dr. Vafadar's report. They did however agree with the conclusion that they were depressed when the assessment was conducted.

Both Applicants made claims for caregiver and for housekeeping and home maintenance benefits. According to the invoices they provided to support these claims,⁴ they both had the good fortune of being able to retain full-time assistants on January 20, 2003. This was before Ms. Nur had reported the accident or they had sought medical attention. They testified that they made arrangements to pay the assistants when the Insurer paid them. No medical practitioner ever told them that they needed full-time assistance.

Mr. Sharma, the other driver, appeared as a witness under summons from the Insurer. Although not of African descent, he is obviously a "person of colour" as described by Phyllis Roman. She is an investigator from Allstate, the Insurer of Mr. Sharma's vehicle. She was also called as a witness for Western.

When Mr. Sharma appeared, the Applicants had finished giving their testimony and were no longer in attendance at the hearing. They were not asked to identify him.

Mr. Sharma was excused before his examination-in-chief was concluded, so that he could go home to meet his eight year old daughter after school. He promised to return at 9:30 a.m. the following day but he later left counsel a message indicating that he could not return as promised. Counsel for the Insurer elected to proceed without Mr. Sharma and was content that Mr. Sharma's evidence be disregarded. However, counsel for the Applicants indicated that he was content that Mr. Sharma's aborted testimony be admitted and counsel for Western acceded to this request.⁵

In his testimony, Mr. Sharma said that he had been travelling at 60 km/h before getting to the intersection but that, at the time of impact, he was almost stopped because of traffic. His statement that he gave to Phyllis Roman on February 25, 2003 indicates that he was travelling at approximately 60 km/h when he was suddenly struck by a white van that he had not seen before. He explained that he was in pain when he gave the statement and did not read the statement, although he read parts of it as the investigator wrote it down. He did sign it and initial each page.

It appears that the alarms regarding this accident were first sounded at Allstate. Phyllis Roman testified that she was called in because of a report regarding pre-existing damage to Mr. Sharma's vehicle. He also had made a prior claim. Allstate contacted Western to ask whether Western was interested in sharing the cost of retaining an expert. Western confirmed Allstate's suspicions by indicating that its insureds had given a different version of how the collision happened. Ms. Nur's description appeared inconsistent with the type of damage found on Mr. Sharma's vehicle. Western agreed to share the cost of the investigation and thus Alexander Cazin was retained. He looked at the vehicles and reported to the insurers.

Alexander Cazin is a mechanical engineer who has practised in the area of motor vehicle accident reconstruction since 1976. His extensive resume was filed as Exhibit 23. His qualification to give expert evidence as an engineer with expertise in forensic motor vehicle accident reconstruction was not questioned and he was accepted as a witness in that capacity. The Insurers gave him a copy of the statements that they had taken from the drivers and occupants and he made arrangements to inspect the vehicles in the body shops where they were located. He did his inspections on February 23 and 24, 2003. He found Mr. Sharma's vehicle untouched but the front bumper had been removed from the Applicants' vehicle. He had it put back on before conducting his inspection. There is no evidence that any other work had been done to either vehicle and no reason to believe that any work was done. Mr. Cazin gave a written report to Western on February 28, 2003.⁶

Mr. Cazin's testimony was consistent with the report. He concluded that the damage on the vehicles could not have occurred in an accident described in the statements and could find no other explanation for the damage to the two vehicles occurring in one event. The damage did not match in terms of position, type or severity.

The damage to the Applicants' vehicle was minor and concentrated in the area from the middle of the front to the left front fender. There was green and blue paint on some of the damaged area, evidence of a collision with green and blue objects. There was no black paint, as one would have expected if there had been a collision with Mr. Sharma's black Jeep. He noted that there were black scuff marks on the bumper, but no paint transfer. That would indicate that the damage had been caused at a low speed, enough to damage the paint but insufficient to cause a transfer of paint. That damage could have come from contact with a vehicle of any colour. He also noted that there were imprints on the front licence plate typical of contact with the mounting bolts of the licence plate of another vehicle. There was no damage to the right front fender or right headlight. Mr. Cazin concluded that the damage to this vehicle was consistent with having hit another object at a low speed.

The Jeep was not repairable. The damage was so extensive that it would not have been possible to restore it to the maker's safety specifications. Both doors on the right side were pushed in. The right rocker panel was crushed and pushed in about 40mm. The floor of the right passenger compartment was buckled. The right side B-pillar was bent and pushed into the front passenger seat. The maximum depth of the dent was 87mm, found on the right front passenger door. There was also damage to other areas of the Jeep that could not have been associated with impact from the right side and he therefore disregarded the other damage.

Mr. Cazin concluded that the relevant damage to the Jeep must have been caused in a collision at a much higher speed than the speed indicated by the damage on the Applicants' vehicle. In addition, Mr. Cazin concluded that the damage to the Jeep was made upon being hit from the side by the front end of a vehicle travelling at high speed with an impact surface of approximately 1500mm. However, in addition to showing no high speed damage, the area of damage to the Applicants' vehicle was only about 600mm.

He also concluded that the damage was not consistent with an accident that happened in the manner that the parties described. If the Jeep had been going at 40 to 60km/h as Mr. Sharma and his passengers had reported, the direct contact damage to the Jeep would have reflected this speed by extending down the right side of the vehicle. The damage to the Applicants' vehicle would have reflected this speed by the left front being pushed towards the right.

If the Jeep was almost stopped, as Mr. Sharma testified, the Applicants' vehicle would have had to be going at high speed, it would have been more significantly damaged and the damage would have covered a wider area. If the Applicants' vehicle had already completed the right turn, the damage to that vehicle would have been to the left front and it would have been pushed to the rear, which it was not. There would also have been damage to the right front of the Jeep, and there was none. If the Applicants' vehicle had spun upon impact, it would have to have been hit by the right front of the Jeep, and there was no damage there and the damage to the Applicants' vehicle would have been to the left front and pushed towards the right, and it was not.

Mr. Cazin did concede that the height of the damage on the Jeep was not inconsistent with a collision with the Applicants' vehicle and that some of the damage on the Applicants' vehicle, namely the scuff marks on the bumper, was "consistent with a collision sequence where the Jeep would have been stationary while the Dodge would have rolled, with its front bumper, left side, freely into the Jeep's right side."⁷

In cross-examination, counsel sought to attack Mr. Cazin's credibility by asking how often he was retained by Western and Allstate and the number of those cases in which he concluded that the accident did not occur. His evidence was that this case was his only retainer by Western in 2003. Allstate retained him for 20 to 30 cases in 2003. He found that the accident had not occurred in two or three cases. He had not made that conclusion in any retainer in 2004.

In answer to a similar question, Phyllis Roman testified that she does not often retain Mr. Cazin on her files, but she was aware of only this file in which he had concluded that the accident had not occurred. She was aware of two instances in which he had concluded that the insured had accurately reported the accident.

There was no evidence that Mr. Cazin's opinion is influenced by the nature of his retainer.

Western summoned the sisters who were passengers in Ms. Nur's vehicle and Dr. Tong, the Applicants' chiropractor, to attend as witnesses. They did not attend and offered Western no explanation. Counsel for Western submitted that I should draw an adverse inference from their non-attendance. I am not prepared to assume that their reason for non-attendance has something to do with the Applicants' claims and I therefore do not draw the inference suggested.

Credibility

As indicated above, I am prepared to accept loss of memory, imperfect recall and a lack of facility in English as a plausible explanation for minor discrepancies between the Applicants' statements and between their statements and their evidence.

These things do not explain Ms. Nur's professed loss of memory of how the accident occurred, while retaining a recall of less significant post-accident details. I would have expected that if Ms. Nur remembered only one thing about the events that led to the hearing, that one thing would be what happened at the intersection of Islington and Thorold Gate. That should be etched in her memory. They do not explain her failure to recall that Ms. Aden claimed to be injured at the scene of the accident. They do not explain how Ms. Nur could have checked both ways before proceeding into the intersection and then not see Mr. Sharma's vehicle before hitting it, or any sequence in which she could have hit Mr. Sharma's vehicle with the front of hers, without seeing it until the impact had occurred.

Lack of facility in English does not explain how Ms. Nur and all of the occupants of her vehicle could mistake Mr. Sharma for a white man. I do not accept counsel's suggestion that this was because Mr. Sharma was not of African descent. The Applicants did not offer that caveat. Indeed, Ms. Aden was precise in her description of Mr. Sharma as an "ordinary white man."

There is no easy explanation for Ms. Nur's decision to report the accident upon discovery that she was injured and only later to seek medical attention, or for the fact that Mr. Sharma made the long trek to the same reporting centre on the same day.

There is no explanation for Ms. Nur's choice of a new family doctor when she was still injured from her previous accident and had received treatment from her former family doctor for injuries from that accident, or for her failure to disclose her earlier injury to anyone who treated her for this accident.

There is no explanation of the coincidence of the Applicants requiring the same treatment from the same doctors or of their decision to retain assistants on the same day, even before they had reported the accident or sought medical attention. There is no explanation of how the Dodge could have sustained minor damage upon an impact that both Applicants described as severe.

These mysteries in the Applicants' evidence cast grave doubt on their credibility.

The absence of an explanation of how the minor impact on their vehicle could have caused major damage to the Jeep, removes any doubt about their duplicity. Mr. Cazin's logic was simple and compelling and I accept his evidence. I accept his conclusion that the damage to the Applicants' vehicle was minor, consistent with a low speed impact, while the damage to the Jeep was consistent with a high speed impact.

I do not accept counsel's submission that Mr. Cazin was required to append to his report the standard crush tests that he consulted in making these conclusions. As Mr. Cazin explained, these are the tools of his trade and it would be impractical to include in his report all the raw data upon which he relies. His concession that some of the damage on the Dodge could have been caused by contact with the Jeep does nothing to erode his conclusion that the resulting damage to the Jeep would have been completely different. Similarly, his concession that the height of the damage on the Jeep was consistent with impact with a Dodge does not mean that he conceded that the Dodge would therefore have sustained the damage that he found.

As Mr. Cazin repeatedly explained in his testimony, once he had concluded that the damage to the two vehicles occurred at markedly different speeds, he was able to conclude that the accident did not occur. It was not necessary to go on to determine precisely the speed of impact that caused the damage, as counsel submitted. In any event, since that information is derived from the depth of the dents, he would not have been able to make that calculation for the Applicants' vehicle, on which the dents were too shallow to be measured.

However, there was more to Mr. Cazin's conclusions. He also concluded that, quite apart from the severity of the damage, the areas of damage and the type of damage could not have occurred in one event. I accept those conclusions as well. The Jeep was hit head on, with a wide area of impact, but there was narrow damage to the Applicants' vehicle. By any account, the Jeep was going north when the impact occurred, but the damage to the Applicants' vehicle did not reflect this movement by shifting right or left.

Additionally, the fact that the Jeep deposited no paint on the Applicants' vehicle is further evidence that the two vehicles never collided.

As I said above, the logic is compelling and I accept Mr. Cazin's evidence. No doubt, I was free to reject his evidence and apply common sense and my own knowledge and logic, as counsel for the Applicants suggested. However, my own common sense and logic also tell me that the damage to the Applicants' vehicle was minor, that one should find black paint on it if it hit a black vehicle and that the minor damage on the Applicants' vehicle could not have caused the damage found on the Jeep.

Conclusions

For these reasons I do not accept the Applicants' testimony and conclude that they were not involved in an automobile accident within the meaning of section 2 of the Schedule.

Having made that finding, it is not necessary to address the substantive claims.

EXPENSES:

Counsel advised at the conclusion of the hearing that there were no offers to settle that would influence an award of expenses. I therefore indicated that I would make a decision on entitlement, but not quantum, as part of my order.

The Insurer has been entirely successful. Since I have found that there was no basis for making the application, the hearing was clearly unnecessary. The Insurer is entitled to its expenses of the hearing upon applying the criteria Rule 75 of the Dispute Resolution Practice Code and the Expense Regulation.

Should the parties be unable to agree on the quantum of expenses, either party may contact the case administrator at the Commission within 30 days of the delivery of this decision, to set a date for a hearing on this issue.

Western identified payment by the Applicants to Western of an amount that does not exceed the amount assessed against Western in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, as an issue in the hearing. Counsel for Western declined to make submissions on my jurisdiction to make such an order, in light of the repeal on October 1, 2003 of subsection 282(11.2) of the Insurance Act that conferred the jurisdiction to make the order requested and its replacement with a new version that does not confer that jurisdiction.

I see nothing in the circumstances of the repeal to rebut the presumption that legislation applies prospectively. I therefore do not have the jurisdiction to make the requested order.

July 20, 2004

Jeffrey Rogers Arbitrator

Date