Financial Services Commission of Ontario
Neutral Citation: 2004 ONFSCDRS 166
FSCO A03-001803
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SUAAD MOHAMUD
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Fred Sampliner
Heard:
August 10, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Ms. Mohamud and her representative did not appear.
Jamie Pollack for Royal & SunAlliance Insurance Company of Canada
Issues:
Royal & SunAlliance Insurance Company of Canada ("Royal") denied Ms. Suaad Mohamud's claims for statutory accident benefits under the Schedule1 on the basis she was not injured in a September 15, 2002 motor vehicle accident. After the parties failed to resolve their disputes through mediation, Ms. Mohamud applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
Was Ms. Mohamud injured as a result of an accident on September 15, 2002?
Is Royal entitled to its expenses of this arbitration?
Result:
Ms. Mohamud was not injured as a result of an accident on September 15, 2002.
Royal is entitled to its expenses of this arbitration.
EVIDENCE AND ANALYSIS:
Adjournment Request:
Ms. Suaad Mohamud faxed an adjournment request to the Tribunal at 3:48 p.m. on the day before the commencement of the hearing. Royal did not consent to Ms. Mohamud's adjournment.
Ms. Mohamud's representative claimed he could not obtain instructions from his client. However, the basis for her request is not an adjournment ground cited in Practice Note 9 of the Dispute Resolution Practice Code, and she and her representative did not appear to elaborate on her cited reason or provide any other grounds to adjourn the hearing.
I find that Ms. Mohamud's instructions to her representative do not impede the hearing process. She did not present a valid reason to adjourn the hearing, and I denied Ms. Mohamud's request to adjourn this matter.
I left detailed telephone messages on Ms. Mohamud's and Mr. Bowie's answering services at the commencement of the hearing to explain that the hearing would proceed, and that they could participate by being present at the Tribunal or by telephone hookup. The hearing notice sent to the parties and representatives states that the arbitrator may proceed if they do not attend, and Royal presented its evidence and arguments without Ms. Mohamud or her representative, Mr. Glenn Bowie.
Royal abandoned its claim that Ms. Mohamud did not make herself available for a medical and rehabilitation examination at a Designated Assessment Centre.
Royal's Forensic Evidence:
Ms. Mohamud signed a statement for Royal that she was returning home from a shopping trip, when the van she was a passenger in rear-ended another car that had stopped suddenly for a pedestrian crossing on Albion Road in Toronto. Royal's vehicle impact analysis with photographs from a qualified forensic engineer, Mr. Sam Kodsi, concludes that the two vehicles did not collide.
Mr. Kodsi's report states that he aligned the front end of the Dodge Caravan with the rear end of the Chevrolet Corsica on October 10, 2002. The impact areas do not match because the uppermost damage to the front of the van is 25 centimetres higher than the corresponding highest point of damage on the rear of the sedan.
The buckling of the van's hood is also inconsistent with the undamaged sedan trunk lid and rear tail lights. The sedan's paint transferred onto the front of the van, but there is not any of the van's paint from the hood on the sedan's bumper to indicate that these two vehicles collided in the manner described in the accident reports.
Mr. Kodsi testified that the van would nose dive by the forward momentum of heavy braking 5 to 8 centimetres at the estimated 60 kilometre per hour speed. However, the bumpers would still have hit because they are approximately the same height from the level ground.
Mr. Kodsi determined from the compression of the sedan's shock absorbers on its rear bumper that it was hit at an angle at 10 kilometres per hour, rather than the 60 kilometre per hour impact Ms. Mohamud described in her statement to Royal. However, there are no lateral scuff marks on the van's front hood to indicate the sedan struck it at an angle, and the van's hood would not have buckled if the vehicles' bumpers absorbed the impact of a 10 kilometre per hour speed. Both vehicles' bumpers would have completely collapsed if the impact had occurred at 60 kilometres per hour.
Mr. Kodsi's opinion is there are too many discrepancies in the physical evidence to support the collision described by the drivers and passengers. His detailed explanation is corroborated by photographs that clearly show the damages he described in his testimony, and I accept his opinion.
Royal also claims that inconsistencies between the driver and passenger statements demonstrate the accident did not occur. However, Royal failed to point out particular inconsistencies, except for the unsigned statement of the van's driver that denies prior damage to her vehicle. I have reviewed the other signed statements and find no material discrepancies with the versions of the accident, and I give no weight to the unsigned statement.
Rather, I rely on Mr. Kodsi's opinion in finding that there was no collision between the Dodge Caravan and the Chevrolet Corsica on September 15, 2002. I find that Ms. Mohamud was not injured in a motor vehicle accident on that date, and consequently that she is not entitled to accident benefits under the Schedule.
EXPENSES:
Royal claims that Ms. Mohamud should pay $6,288.14 for its expenses of this arbitration under subsection 282(11) of the Insurance Act. Two criteria are relevant to Royal's claim:2 1) Royal was completely successful in this arbitration while Ms. Mohamud was completely unsuccessful, 2) The entire arbitration process was not necessary because Ms. Mohamud was not involved in an accident.
I find that Royal is entitled to its expenses of the arbitration process under Rule 75 of the Dispute Resolution Practice Code and subsection 282(11) of the Insurance Act. I reviewed Royal's individual expenses on its statement in accordance with Regulation 664.
I accept that Mr. Pollack spent 17 hours work in preparing this file for the hearing, along with his law clerk's 2.7 hours, and the $2, 246.22 for the individual disbursements listed in the account. However, I am not persuaded it is reasonable that the second lawyer from Mr. Pollack's office incurred 31.6 hours for preparation of the file where the process consisted of drafting Royal's response, Mr. Pollack preparing and attending the pre-hearing, and the preparation for and attendance at a half day preliminary issue hearing. I do not allow Ms. James' time.
I find that Royal is entitled to $62.10 ($23/hr. x 2.7 hrs.) for Mr. Pollack's law clerk, $1,345.38 ($79.14/hr. x 17 hrs.) for Mr. Pollack, and $2,224.22 for the disbursements, totalling $3,631.70 plus $254.22 for GST.
November 16, 2004
Fred Sampliner
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 166
FSCO A03-001803
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SUAAD MOHAMUD
Applicant
and
ROYAL & SUNALLIANCE 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:
Ms. Mohamud's claims for accident benefits under the Schedule are dismissed.
Ms. Mohamud shall pay Royal $3,885.92 for its expenses of this arbitration under subsection 282(11) of the Insurance Act.
November 16, 2004
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, 114/00 and 482/01.
- Regulation 664, made under the Insurance Act, as amended to O.Reg. 275/03 (Criteria For Awarding Expenses)