Financial Services Commission of Ontario
Neutral Citation: 2004 ONFSCDRS 56
FSCO: A03-000395; A03-000396; A03-000397
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MOUSTAFA ABDALA-AMIN and AWIL MOALIN AHMED and HAJIO ELMI
Applicants
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Catherine Skinner
Heard:
March 9, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Moustafa Abdala-Amin; Awil Moalin Ahmed; Haijo Elmi Sara Small for Guarantee Company of North America
Issues:
The Applicants, Moustafa Abdala-Amin, Awil Moalin Ahmed and Haijo Elmi, claim to have been injured in a motor vehicle accident on May 25, 2002. They applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.1 Guarantee takes the position that an accident did not occur. The parties were unable to resolve their dispute through mediation, and the applicants 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 issues are:
Should the preliminary issue hearing be adjourned?
Were Mr. Abdala-Amin, Mr. Ahmed and Ms. Elmi involved in an accident on May 25, 2002?
Results:
The preliminary issue hearing was not adjourned.
Mr. Abdala-Amin, Mr. Ahmed and Ms. Elmi were not involved in an accident on May 25, 2002.
EVIDENCE AND ANALYSIS:
1. Should the Preliminary Issue hearing be adjourned?
At the outset of the hearing, the applicants requested an adjournment of the preliminary issue hearing. They indicated that they needed additional time to retain a representative. I denied the applicants' request for adjournment.
The procedural history of this proceeding is relevant to my consideration of the applicants' adjournment request. The applicants participated in a pre-hearing discussion on June 26, 2003, at which they were represented by Jorge Pignalosa. At that time, the parties agreed to schedule the hearing of this preliminary issue on November 12 and 13, 2003.
On November 5, 2003, the applicants requested an adjournment of the preliminary issue hearing to permit them additional time to obtain new representation. By letter dated November 5, 2003, Arbitrator Muir granted the applicants' adjournment request, with Guarantee's consent, and rescheduled the preliminary issue hearing to March 9, 2004. In his letter, the Arbitrator noted that the March 9 date was peremptory to the Applicants and that no further adjournment would be granted to them, other than in extreme and unforeseeable circumstances. The Arbitrator directed the Applicants and Mr. Pignalosa to comply with the requirements of Rule 9.7 and 9.8 of the Dispute Resolution Practice Code concerning the removal of Mr. Pignalosa from the record. The Arbitrator also directed the Applicants to provide the name of their new representative by December 12, 2003.
The Applicants provided written consent for the removal of Mr. Pignalosa as their representative. They did not, however, provide the name of a new representative by December 12, 2003, or at any other time.
On March 8, 2004, one day before the beginning of this preliminary issue hearing, the Applicants requested an adjournment of the hearing to allow them to obtain new representation. By oral decision, Arbitrator Sampliner denied their request for adjournment.
The Applicants renewed their request for adjournment before me at the outset of the preliminary issue hearing. Guarantee objected to an adjournment of this proceeding.
I was not satisfied that the Applicants had attempted to comply with Arbitrator Muir's direction to them on November 5, 2003. The Applicants did not provide the name of a new representative by December 12 or at any other time. Although they indicated that they had approached a lawyer in connection with this case, they could not specify when they had spoken with the lawyer or what the substance of that conversation had been. I found that the Applicants did not make reasonable efforts to obtain new representation. I did not find that there were exceptional or unforeseeable circumstances that would warrant a second adjournment in this case.
2. Were the Applicants involved in an accident on May 25, 2002?
The parties agreed that Guarantee bore the evidentiary onus of proving that the Applicants were not involved in an accident on May 25, 2002. In support of its case, Guarantee filed two document briefs, consisting of the Self Reporting Collision Reports of both Ms. Elmi and the driver of the second vehicle, photographs of the two vehicles allegedly involved in the accident, two accident reconstruction investigation reports, and an OCF-9, Explanation of Benefits Payable by Insurance Company. The authors of the two reports, Mr. Rob Seaton and Mr. Samuel Kodsi, were called as expert witnesses in the area of accident reconstruction.
The Applicants gave their evidence through an interpreter, Mr. Hussein Ahmed. They described the accident as having occurred on May 25, 2002 at approximately 5:30 pm. They indicated that Ms. Elmi was driving eastbound on Vine Avenue in a Mercury Sable. She arrived at the intersection of Vine Avenue and Keele Street and proceeded to turn left onto Keele, in a northbound direction. The Applicants testified that their vehicle was struck by a Honda travelling in the left northbound lane of Keele Street, just as Ms. Elmi was completing her left turn. The Honda struck Ms. Elmi's Mercury Sable behind its front right wheel.
In a prior statement, Ms. Elmi estimated that her vehicle was travelling at a speed in the range of 30 - 40 kilometres per hour at the time of the collision. At the preliminary issue hearing, Ms. Elmi testified that she was travelling much more slowly and had, in fact, only just started her acceleration when her vehicle was struck. In a prior statement, Phung Pham, the third party driver, indicated that he was travelling at a speed of 45 kilometres per hour at the time of the collision.
Mr. Rob Seaton, a former police officer with special training and experience in accident reconstruction, was accepted as an expert witness. His testimony coincided with the information set out in his Investigation Report dated June 24, 2002. Mr. Seaton testified that he had analyzed photographs of Ms. Elmi's vehicle and that of the third party driver, Phung Pham, and their self-reporting collision reports. As a result of his investigation, he concluded that no collision occurred between Ms. Elmi's vehicle and Phung Pham's vehicle.
Mr. Seaton testified that the actual damage to Ms. Elmi's vehicle was not consistent with it having collided with Phung Pham's car in the manner described. Specifically, he noted the absence of any longitudinal scratches, paint transfer or damage of any kind on Ms. Elmi's rocker panel. The damage to Ms. Elmi's Mercury was measured at approximately 63 cenitmetres from the ground. There is no corresponding damage at that height on Phung Pham's Honda. Based on the height of the two vehicles, Mr. Seaton indicated that the Honda's bumper should have contacted the Mercury's rocker panel, and the absence of damage to the rocker panel was inconsistent with a collision between the two vehicles at any speed. Mr. Seaton testified that the damage to Ms. Elmi's vehicle was more consistent with it being struck from the front and the localized damage suggested a blunt force, rather than a skidding collision.
Mr. Sam Kodsi, a professional engineer with particular training and experience in accident reconstruction, was accepted as an expert witness. He also prepared an accident reconstruction report on behalf of Guarantee dated April 22, 2003. Mr. Kodsi concluded that the damage sustained by the two vehicles was inconsistent with any contact between them. He noted the absence of longitudinal scratches, the localized damage, the absence of corresponding damage on the Honda at the height of the apparent collision and the physical evidence suggesting impact from the front rather than the rear. Mr. Kodsi indicated that, even if the vehicles were travelling much more slowly than originally reported, the damage sustained to the two vehicles would nevertheless be inconsistent with a collision in the manner described.
In light of the unrebutted physical evidence demonstrating that the two vehicles did not collide, I find the Applicants were not involved in a motor vehicle accident on May 25, 2002. When asked, the Applicants were unable to offer any explanation for the discrepancy between their testimony and the physical findings of the insurer's expert witnesses. The Applicants' evidence concerning the accident was sparse and lacked detail. Specifically, I found I could not rely on their testimony concerning the mechanics of the alleged accident. Neither Mr. Abdala-Amin nor Mr. Ahmed were driving, which may account for the absence of detail in their testimony. Ms. Elmi's testimony concerning her car's speed and location at the time of impact was inconsistent and, at times, contradictory. I find the applicants' evidence insufficient to rebut the insurer's evidence that there was no collision between the Applicants' Mercury Sable and Phung Pham's Honda.
EXPENSES:
The parties made no submissions concerning expenses. Should they be unable to agree on entitlement or amount, they may now request an appointment before me under Rule 79.1 of the Dispute Resolution Practice Code.
April 21 2004
Catherine Skinner Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 56
FSCO A03-000395, A03-000396 and A03-000397
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MOUSTAFA ABDALA-AMIN and AWIL MOALIN AHMED and HAIJO ELMI
Applicants
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mr. Abdala-Amin, Mr. Ahmed and Ms. Elmi were not involved in an accident on May 25, 2002 and their respective applications for arbitration are dismissed.
April 21 2004
Catherine Skinner Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 292, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.