Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 107

FSCO A03-001826

BETWEEN:

COMFORT AFRIYIE-ANTWI

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: June 10, 2004, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions received by July 19, 2004.

Appearances: Ms. Afriyie-Antwi did not appear and no one appeared on her behalf. Lorraine Takacs for ING Insurance Company of Canada

The Applicant, Comfort Afriyie-Antwi, claims to have been injured in a motor vehicle accident on March 18, 2003. She applied for statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ ING takes the position that the accident did not occur. The parties were unable to resolve their disputes through mediation, and Ms. Afriyie-Antwi 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:

Did Ms. Afriyie-Antwi sustain any impairment in a motor vehicle accident on March 18, 2003?
Is Ms. Afriyie-Antwi entitled to receive weekly caregiver benefits, pursuant to section 13 of the Schedule?
Is Ms. Afriyie-Antwi entitled to receive a medical benefit, claimed pursuant to section 14 of the Schedule?
Is Ms. Afriyie-Antwi entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Ms. Afriyie-Antwi entitled to payments for the cost of examinations, pursuant to section 24 of the Schedule?
Is Ms. Afriyie-Antwi entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is ING liable to pay Ms. Afriyie-Antwi's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Afriyie-Antwi liable to pay ING's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Ms. Afriyie-Antwi did not sustain any impairment in a motor vehicle accident on March 18, 2003.
Ms. Afriyie-Antwi is not entitled to receive weekly caregiver benefits.
Ms. Afriyie-Antwi is not entitled to receive a medical benefit.
Ms. Afriyie-Antwi is not entitled to payments for housekeeping and home maintenance services.
Ms. Afriyie-Antwi is not entitled to payments for the cost of examinations.
Ms. Afriyie-Antwi is not entitled to interest for the overdue payment of benefits.
ING is not liable to pay Ms. Afriyie-Antwi's expenses in respect of the arbitration.
Ms. Afriyie-Antwi is liable to pay ING's expenses in respect of the arbitration fixed in the amount of $3,919.

Background:

Ms. Comfort Afriyie-Antwi applied for accident benefits as a result of an alleged car accident on March 18, 2003. She reported that she was driving on Jane Street in Toronto with three passengers in her Nissan, when an Oldsmobile, which had been rented from Hertz Canada, came out of a side street and hit the right side of her car.

On April 1, 2003, ING took a statement from Ms. Afriyie-Antwi. This statement raised concerns for ING. ING also noted a lack of cooperation by Ms. Afriyie-Antwi. In addition, there were multiple claims by Ms. Afriyie-Antwi and the driver of the other vehicle. As a result, ING obtained an engineering report dated April 7, 2003 from Cazin Investigative Engineering Ltd. (the "Cazin report"). ING delivered this report to Ms. Afriyie-Antwi.

The report concluded that the accident did not happen as alleged, and may have been staged.

Ms. Afriyie-Antwi's vehicle showed pre-existing damage, which she had not reported. The damage on the two vehicles was not compatible. The Cazin report included detailed, objective on-site measurements and calculations.

In response, Ms. Afriyie-Antwi obtained an engineering report dated September 26, 2003 from Walters Forensic Engineering Inc. (the "Walters report"). According to ING, the Walters report provided relatively vague and unsubstantiated conclusions that the accident "could have" happened as reported. As a result, ING obtained an Addendum Report dated October 21, 2003 from Cazin Investigative Engineering Ltd. (the "Cazin Addendum report"). The Cazin Addendum report confirmed its original findings that the accident did not occur as reported.

ING denied all of Ms. Afriyie-Antwi's claims for caregiver, housekeeping, medical benefits and section 24 expenses. She later admitted through her representative that she did have pre-existing damage to her vehicle which was not reported on the Collision Report.

The Financial Services Commission of Ontario sent a Notice of Pre-Hearing Discussion dated February 11, 2004 to Ms. Afriyie-Antwi's home address and to her representative. At the pre-hearing on April 29, 2004, Ms. Afriyie-Antwi did not attend, and her representative was removed from the record. The Pre-Hearing letter dated April 29, 2004 confirmed the issues in dispute, the production requirements and the date of the arbitration hearing.

On May 3, 2004, a Notice of Hearing was sent to Ms. Afriyie-Antwi informing her that an arbitration hearing would take place on June 10, 2004 at the Commission. The Notice of Hearing included the following paragraph, which reflects the provisions of subsection 7(1) of the Statutory Powers Procedure Act, ("SPPA")²and section 37.7 of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003), (the "Code"):

You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.

The arbitration began as scheduled on June 10, 2004. The hearing was delayed for one-half hour to wait for Ms. Afriyie-Antwi to appear. Ms. Afriyie-Antwi did not appear, and no one appeared on her behalf. I am satisfied that every effort was made to give proper notice of the hearing to Ms. Afriyie-Antwi in accordance with the SPPA and the Code.

Ms. Afriyie-Antwi did not contact the Commission or appear at the hearing. There was no evidence that she had not received the Notice of Hearing or the Pre-Hearing letter. In accordance with subsection 7(1) of the SPPA and section 37.7 of the Code, I proceeded with the hearing.

Ms. Afriyie-Antwi's entitlement to the benefits claimed:

The onus is on Ms. Afriyie-Antwi to prove her claim for benefits.³ This may be done through oral or documentary evidence. As Ms. Afriyie-Antwi did not appear at the hearing, the only evidence led to support her claim that there was an accident was the Walters report.

Caregiver, medical and housekeeping benefits under the Schedule all have two pre-conditions. Ms. Afriyie-Antwi must have been involved in an accident as defined under the Schedule, and she must establish that she suffers an impairment as a result of that accident.

Section 2 of the Schedule sets out the definition of an "accident", as follows:

"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...

The Engineering Reports

The Cazin report went through a very detailed analysis of the measurements and angles of the damage to the two vehicles. It came to the following conclusion:

Based on our analysis of the vehicles damage and of the possible collision sequence of events, it is our professional opinion that, the two vehicles would have not come in contact in the conditions indicated by their drivers in their collision reports.

It is also probable that the Nissan damage would have occurred in unknown circumstances, unrelated to the reported collision with the Oldsmobile.

The vehicles "minimally matching damage type and extent and the probable collision sequence were consistent with the Nissan being stopped or travelling at a low, nominal speed of approximately 3 to 5 km/h, or less, at the time of the reported impact.

The type and extent of the Oldsmobile damage and the "minimal damage match between the two vehicles were also consistent with a collision sequence where the Nissan would have been stationary while the Oldsmobile would have rolled freely into its right side.

The "minimally matching damages on the two vehicles were also consistent with the easiest manner in which the two vehicles could be brought in contact intentionally.

The Cazin report calls into doubt Ms. Afriyie-Antwi's claim that she was involved in an accident as described in her original application for accident benefits. I also note that Ms. Afriyie-Antwi denied pre-existing damage to her vehicle in the accident report, then later recanted and admitted that prior to March 18, 2003 she had been involved in an accident with a concrete pillar. Full particulars of that accident were never provided to ING, despite requests.

In the Walters report obtained by Ms. Afriyie-Antwi, the engineers noted that there were dark scrapes to the trim molding of her vehicle consistent with her grazing a concrete pillar in a parking lot, as she had eventually indicated she had done prior to the accident. After reviewing the heights of damage to the two vehicles, their relative impact speed and the bumper impact requirements of Canadian Motor Vehicle Safety regulations, the report concluded as follows:

It is our opinion that an impact between the Afriyie-Antwi Nissan and the Noor Oldsmobile could have occurred as described. The crush damage and paint transfer are consistent with a corner/sideswipe collision with a relative impact speed of 4.8 km/h or greater.

The Cazin Addendum report commissioned by ING presented supplementary conclusions after reviewing and analyzing the Walters report. The Cazin Addendum report notes that in order to prepare the Walters report, the engineers involved did not examine the vehicles and the available physical evidence. Instead, they chose to mostly base their assessments and comments on a summary of the vehicle damage set out in the Cazin report. The Cazin Addendum report describes a number of other concerns with the Walters report and concludes as follows:

Based on our review of the Walters report, it is our professional opinion that this report did not have any practical engineering value and was based on unsupported data and speculations. It did not fulfil its stated purpose.

The Walters report conclusion that an impact between the two vehicles "could have occurred as described" was ambiguous, unsupported by the physical evidence and not backed by an engineering collision analysis. This conclusion was thus, invalid...

Consequently, all the conclusions in our engineering report dated April 7, 2003, remain unchanged and valid.

The Cazin and Cazin Addendum reports are based on first-hand examination of the vehicles and the physical evidence. The Walters report is not. Accordingly, I find the evidence in the Cazin and Cazin Addendum reports more persuasive.

Did Ms. Afriyie-Antwi sustain an impairment as a result of an accident?

Whether the accident happened as alleged is a major issue in this case. In spite of this, Ms. Afriyie-Antwi failed to provide any evidence whatsoever, to confirm that an accident occurred with her in the car. In addition, she stated that there were three other passengers with her in her car, and none of them offered evidence in support of her claim.

As stated above, the onus is on Ms. Afriyie-Antwi to prove her claim for benefits. To receive benefits, she must prove that she was involved in an accident as defined by the Schedule. I find that, based on the evidence in the Cazin reports, and on Ms. Afriyie-Antwi's failure to give any oral testimony supporting her claim, Ms. Afriyie-Antwi was not involved in an incident in which the use or operation of an automobile directly caused an impairment. Accordingly, she did not sustain an impairment as a result of an accident, as defined by the Schedule.

Caregiver Benefit

In order to receive a weekly caregiver benefit pursuant to section 13 of the Schedule, Ms. Afriyie-Antwi must prove that she sustained an impairment as a result of the accident. She has failed to do so. In addition, Ms. Afriyie-Antwi has not provided any evidence, as required by section 13, that she was residing with a person in need of care, and was his or her primary caregiver. Further, Ms. Afriyie-Antwi has not provided any evidence that she suffered a substantial inability to engage in the caregiving activities in which she was engaged in at the time of the accident. For these reasons, I find that Ms. Afriyie-Antwi is not entitled to receive a caregiving benefit.

Medical Benefit

In order to receive a medical benefit pursuant to section 14 of the Schedule, Ms. Afriyie-Antwi must prove that she sustained an impairment as a result of the accident. She has not done so. In addition, she must prove that any medical expense which she claims is reasonable and necessary. She has led no evidence to support such a claim. For these reasons, I find that Ms. Afriyie-Antwi is not entitled to receive a medical benefit.

Housekeeping and Home Maintenance Benefit

Pursuant to section 22 of the Schedule, Ms. Afriyie-Antwi must prove that as a result of the accident she has sustained an impairment that results in a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident. She has not done so. In addition, she has led no evidence that any such additional expenses were reasonable and necessary. Accordingly, I find that Ms. Afriyie-Antwi is not entitled to receive a benefit for housekeeping and home maintenance.

Cost of Examinations

Finally, the Applicant has failed to prove that she is entitled to reimbursement for the cost of examinations, pursuant to section 24 of the Schedule. She offered no evidence that the expense was reasonable, incurred, or even eligible for consideration under section 24. Accordingly, I find that Ms. Afriyie-Antwi is not entitled to receive reimbursement for the cost of examinations.

EXPENSES:

Entitlement:

Subsection 282(11) of the Insurance Act gives arbitrators the discretion to award expenses to parties at an arbitration hearing, according to criteria prescribed by the Regulations. ING brings its claim for expenses under Regulation 664⁴ of the Insurance Act At the hearing, Ms. Afriyie-Antwi did not pursue a claim for expenses against Guarantee.

The current version of Regulation 664 requires an arbitrator to apply the following criteria:

(a) each party's degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with subsection (3);

(d) the conduct of a party or party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders; and

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

These criteria, which are set out in section 12 of Regulation 664, are repeated in Rules 75 and 76 of the Dispute Resolution Practice Code.

With respect to criterion (a), ING was completely successful in having all of Ms. Afriyie-Antwi's claims for benefits dismissed. Ms. Afriyie-Antwi failed to prove that she sustained an impairment in a motor vehicle accident on March 18, 2003. Accordingly, I found that she was not entitled to receive a weekly caregiver benefit, a medical benefit, payments for housekeeping and home maintenance services, or the cost of examinations.

Under criterion (b), ING has submitted that it made a reasonable settlement offer to Ms. Afriyie-Antwi. It stated that, despite the evidence, on April 29, 2004 it offered to agree to a dismissal of the proceeding on a without costs basis. ING did not receive any response to its offer.

The issues raised in this case were not novel, under criterion (c).

Criterion (d) refers to the conduct of a party or party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders. Without notice or explanation, Ms. Afriyie-Antwi failed to attend the pre-hearing and the hearing. She also failed to comply with production requests. I find that Ms. Afriyie-Antwi's failure to act or appear hindered the proceeding.

Under criterion (e), I must determine whether any aspect of the proceeding was improper, vexatious or unnecessary. As noted above, Ms. Afriyie-Antwi failed to pursue her claim. Furthermore, she did not withdraw it. Based on the evidence before me, I found that

Ms. Afriyie-Antwi did not sustain an impairment as defined in the Schedule. There was never any explanation provided for Ms. Afriyie-Antwi's failure to appear. Under these circumstances, I find that the entire proceeding was improper, vexatious and unnecessary.

For the reasons set out above, under all of the criteria set out in Regulation 664, I find that Ms. Afriyie-Antwi is liable to pay ING's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

Assessment Fee:

ING sought reimbursement of the assessment fee of $3,000 it had paid in connection with Ms. Afriyie-Antwi's arbitration. To support this claim, it referred to the arbitration decision of Dirie and Guarantee Company of North America.⁵ In that case, Arbitrator Sampliner found that Mr. Dirie had commenced the arbitration with the knowledge that his claim was fraudulent. He further found that this constituted an abuse of process. He then ordered that Guarantee was entitled to recover its $3,000 assessment fee from Mr. Dirie, pursuant to subsection 282(11.2) of the Insurance Act However, that section of the Act has now been revoked and no longer contains the provision which allowed relief up to the amount assessed against the insurer. I find that I no longer have the authority to order the Applicant to reimburse ING for the assessment fee it paid in the amount of $3,000.

Amount of Legal Fees and Disbursements:

ING acknowledged that pursuant to Rule 75 of the Code, the maximum amount that may be awarded to an insured person or an insurer for legal fees, is an amount calculated using the hourly rates established under the Legal Aid Services Act, 1998, for professional services in civil matters before the Ontario Superior Court of Justice. Based on the years of experience of its counsel, it claimed the maximum amount of $150 per hour. I find that this hourly rate for Ms. Takacs work is fair and reasonable under the circumstances.

ING claimed the following amounts as legal fees and disbursements, pursuant to Rule 75 of the Code:

Legal fees for reviewing file, preparing response, preparing for and attending at the hearing, and preparing written submissions (23 hours at $150.00 per hour)

$3,450.00

GST on above

$ 241.50

Disbursements, including copying costs and mailing

$ 227.50

Total fees and disbursements

$3,919.00

I find the legal fees and disbursements that ING is claiming totaling $3,919, including GST, to be reasonable.

August 5, 2005

Anne Sone Arbitrator

Date