Neutral Citation: 2005 ONFSCDRS 58
FSCO A03-000956
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
YAW POKU DWUMAAH
Applicant
and
RBC GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Robert A. Kominar
Heard:
May 3, 4 and 5, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Majid Yazdani for Mr. Dwumaah
William J. McCorriston for RBC General Insurance Company
Issues:
The Applicant, Yaw Poku Dwumaah, was injured in a motor vehicle accident on November 29, 2001. He applied for various statutory accident benefits under the Schedule1 The parties were unable to resolve their disputes through mediation, and Mr. Dwumaah 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:
Was Mr. Dwumaah involved in an "accident" within the meaning of section 2 of the Schedule as a result of the accident?
Is Mr. Dwumaah entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule after December 5, 2001?
What is the amount of weekly income replacement benefit that Mr. Dwumaah is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Dwumaah entitled to receive a medical benefit for services provided by Finch Weston Rehabilitation in the amount of $7,370; Dr. Patrick Safieh in the amount of $4,154; and Dr. L. Steiner, psychologist, in the amount of $4,160 claimed pursuant to section 14 of the Schedule?
Is Mr. Dwumaah entitled to attendant care benefits pursuant to section 16 of the Schedule in the amount of $1,000 for services provided by Maxwell Bourdy?
Is Mr. Dwumaah entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule in the amount of $100 per week from November 29, 2001 and ongoing?
Is Mr. Dwumaah entitled to $1,260 for the cost of an examination by Dr. L. Steiner, pursuant to section 24 of the Schedule?
Is Mr. Dwumaah liable to pay an amount to RBC that does not exceed the amount assessed against RBC in respect of the arbitration, pursuant to subsection 282(11.2) of the Insurance Act, because he commenced an arbitration that is frivolous, vexatious or an abuse of process?
Is RBC liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Dwumaah?
Is RBC liable to pay Mr. Dwumaah's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Mr. Dwumaah liable to pay RBC's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Mr. Dwumaah entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
Mr. Dwumaah is not entitled to any of the benefits claimed in this application for arbitration or interest on them.
Mr. Dwumaah is not entitled to a special award.
RBC is not entitled to a return of any portion of its assessment in this arbitration.
RBC is not liable to pay Mr. Dwumaah's expenses in respect of this arbitration.
RBC is entitled to its expenses in this arbitration. If the parties cannot agree, within 30 days, on the quantum of expenses, or on the respective liability of Mr. Dwumaah or Dr. Yazdani to pay them, an assessment hearing may be arranged to determine the matter.
INTRODUCTION AND BACKGROUND
Mr. Dwumaah's claims for various accident benefits in dispute in this arbitration arise out of an incident which occurred during the evening of November 29, 2001. Mr. Dwumaah testified that on that evening he was driving his 1992 Acura Vigor on Weston Road, returning home from a shopping trip. It was raining at the time. He claims that his vehicle was struck by a Honda Civic which was exiting from a school parking lot and making a turn onto Weston Road. This is the extent of what Mr. Dwumaah knows about the incident in question and he states that his information about what actually happened largely results from what an investigating police officer told him afterwards. Mr. Dwumaah's position in this arbitration is that, as a direct result of this collision of these vehicles, he suffered both physical and psychological injuries and these injuries resulted in a disability that meets the test for entitlement to various statutory accident benefits which he is claiming.
RBC adopts a radically different view of the situation. Their position is that no "accident" occurred here, as that term is defined in the Schedule. At best there was a "staged accident" and RBC's position is that Mr. Dwumaah did not suffer any injuries as a direct result of it, nor was he rendered disabled in any way by it. RBC further contends that Mr. Dwumaah wilfully and materially misrepresented what happened on November 29, 2001 in order to make a claim for accident benefits. As a result of this, RBC claims that they are entitled to deny his claim for accident benefits in its entirety, pursuant to section 48 of the Schedule.
Clearly, there are two distinct narratives involved here and I have to weigh the credibility of both in coming to a decision on the issues in dispute. The following is a summary of the evidence presented at the arbitration hearing:
MR. DWUMAAH'S TESTIMONY
Mr. Dwumaah testified that on November 29, 2001 he was returning home from a trip to Future Shop. It was approximately 9:30 p.m. and it was cold and raining. Suddenly, while driving at a speed of approximately 50 km/h down Weston Road, his Acura Vigor was hit by what he later learned was a Honda Civic which was exiting from a school parking lot onto Weston Road. Mr. Dwumaah next recalls being lifted by two people into an ambulance and something being placed around his neck. He also remembers arriving at hospital where he was checked by doctors and nurses and provided with medication of some unidentified sort. Mr. Dwumaah testified that while he was at the hospital a police officer interviewed him about the incident. He stated that he felt very dizzy during his time at the hospital and so he doesn't recall much of what happened while he was there. His stay, he was told, lasted roughly four hours. No x-ray investigations were conducted and he was advised to purchase some Tylenol for pain if he needed it. Mr. Dwumaah returned home from the hospital that evening by taxi.
As to other details of what occurred on Weston Road that evening, Mr. Dwumaah testified that, basically, he only knows what was related to him by the police officer who interviewed him for about twenty minutes at the hospital. He stated that the officer advised him that his car had been damaged and towed away from the scene. He was also told that the accident was not his fault and that he would face no charges. Regarding his own injuries, Mr. Dwumaah testified that the whole left side of his body hit the driver's side door during the collision and as a result of it he experienced immediate pain in his hip and lower back. He stated that he disclosed these immediate pain symptoms to those who were caring for him at the hospital.
Mr. Dwumaah testified that never saw the vehicle which he now claims collided with his. At some point in the process, and it is unclear from his evidence whether this occurred just prior to or just after the collision, Mr. Dwumaah states that he completely lost his sight and that he could not see anything until his vision returned just before his departure from the hospital after a four hour stay. Thus, he could not identify the vehicle that hit him, its occupants, any details about the accident scene, or anything about the damage occasioned to his car or the other vehicle. When he was shown pictures that RBC suggested illustrated the resulting damage to his vehicle, he stated that he never saw his car after the incident until it had been repaired and so he can't confirm or deny anything about the vehicle damage.
During cross-examination Mr. Dwumaah was asked more about his loss of vision experience. He stated that this has never happened to him before or since, and that although he can't explain how it happened, he is certain that his vision "went blank" during the incident. His specific evidence was, "I was not blind, but because I had an accident before, I was dazed. Everything went blank. I couldn't see anything but that wasn't total blindness." Mr. Dwumaah was confronted with a statement which he provided at his lawyer's office to Mr. Faber, an insurance adjuster, wherein he said that "the whole front nose of the other car was damaged" and he was asked how he knew this to be the case if he could not see? His answer was that he was only reporting to Mr. Faber what the police officer had told him.
Mr. Dwumaah was also asked why he did not mention losing his sight during his evidence-in-chief, but rather only described feeling dizzy – the inference being that this was a rather salient aspect of the event to omit from his version of the events. Mr. Dwumaah did not directly respond to this question. Mr. Dwumaah did state that there may have been translation issues involved, as his first language is Twi and not English. He testified that while he was giving the statement to RBC he was also making "circling" motions around his eyes which were meant to convey to Mr. Faber that after the incident he could not see anything but not that he was permanently blinded. Mr. Dwumaah also stated that, while at the hospital, a nurse at some point shone a light into his eyes and told him that "maybe it was from the impact," referring to his vision loss. When he was asked whether there are any medical records or other evidence that can support his claim of complete vision loss, Mr. Dwumaah stated that he had no idea about what the hospital or medical records may have indicated. All he knows is that he was discharged from hospital, roughly four hours after he arrived, without being given any prescription medication or any follow up advice about his loss of sight. He also apparently never advised any of his subsequent treating health care practitioners about this experience of temporary total vision loss.
Mr. Dwumaah was shown various photos and reports which RBC put forward as detailing information about the vehicles involved in the incident during cross-examination. He consistently maintained that he knew nothing about the damage to these vehicles because he never saw them in that state.
With regard to his testimony relevant to the actual benefits he is claiming in this arbitration, Mr. Dwumaah's evidence can be summarized very succinctly; there was none.
With relation to his claim for income replacement benefits, the only evidence even directed at the issue was elicited by Mr. McCorriston during cross-examination and it strongly supports the conclusion that Mr. Dwumaah was not employed in the four weeks prior to the accident, the period which he had elected to use to calculate his entitlement. Mr. Dwumaah vaguely alluded to entitlement to employment insurance benefits at the time but he provided no evidence that he ever applied for these benefits or was actually entitled to benefits, despite stating on the first day of the arbitration that he would bring in the supporting documentation on the second day of the hearing. He did not do that. Mr. Dwumaah testified that he was led to believe by an insurance adjuster that he need not continue to pursue his employment insurance claim as he was going to be paid income replacement benefits by RBC.
No evidence was adduced to support that Mr. Dwumaah had any entitlement to income replacement benefits based on employment during the 52 weeks prior to the accident either. When he was asked to explain why there was no documentation in evidence that supported his claim to income replacement benefits, Mr. Dwumaah stated that his view was that if you are in an accident and can't work the insurance company "has to pay you." He testified that this was the advice his legal counsel gave him and that is what he relies upon.
Mr. Dwumaah also claimed medical, housekeeping and attendant care benefits. As acknowledged by his representative during closing submissions, no evidence was offered during the arbitration to support entitlement to any such benefits.
No further evidence was offered during the case on behalf of the Applicant.
INSURER'S EVIDENCE
Gord Faber
Mr. Faber testified that he is a licenced, independent insurance adjuster and that he was retained by RBC to take a statement from Mr. Dwumaah on December 13, 2001. This took place at the offices of Mr. Dwumaah's legal counsel at the time. He stated that Mr. Dwumaah was given a copy of the statement to read before signing and that he took time to read it over. Mr. Porcelli, a paralegal who worked in the offices of the law firm then representing Mr. Dwumaah, was also given a copy of the statement to read prior to Mr. Dwumaah signing it. Neither Mr. Dwumaah nor Mr. Porcelli expressed any concerns to Mr. Faber about its content, nor did either of them request any changes to be made prior to Mr. Dwumaah signing the statement. Mr. Faber stated that Mr. Dwumaah read the statement on his own and that the whole interview was conducted in English without any request for the assistance of an interpreter.2
Mr. Faber further stated that he recalled thinking to himself at the time that Mr. Dwumaah's claim that he had completely lost his vision during the incident yet did not lose consciousness was "rather fantastic." He stated, however, that he recorded Mr. Dwumaah's own words and that he was not substituting his own language to try to interpret what Mr. Dwumaah was describing. He also noted that just before Mr. Dwumaah told him about the vision loss episode he stated that the whole front end of the other car was damaged in the incident.
Patrick Rider
Mr. Rider testified that he is an automobile appraiser who has worked in the industry for over 45 years. He has been doing actual body damage appraisal work for about 22 years. His evidence was that he was retained by RBC to inspect Mr. Dwumaah's vehicle at Abrams Towing. He was provided with a licence plate number for the Acura vehicle he was looking for and the last six digits of its Vehicle Identification Number (VIN). When he arrived at the towing compound he located the vehicle and confirmed that the VIN was identical but that the licence plate number he had been provided was one numeral off from the actual plate on the car. He stated that it is not uncommon to encounter a minor error in a licence plate identification. He was satisfied through confirming the VIN that he was appraising the correct vehicle.
Mr. Rider stated that the actual appraisal he conducted revealed damage only to the right front portion of the vehicle. He noted that the front bumper cover, parking light, marker light and right fender were damaged. His estimate was that there was approximately $1,400.00 in damage to the vehicle, which he characterized as "light" damage; consistent, in his experience, with "parking lot" impacts.
George Oliveira
Mr. Oliveira was summonsed by RBC to give evidence in this arbitration. He stated that he is employed by Certas3 as an in-house appraiser who assesses body damage to the vehicles they insure. He has been employed in this capacity for eight years. He testified that he was asked to appraise a 1990 Honda Civic in early December of 2001 at Academy Auto Collision. He was not provided with a licence plate for the vehicle, but did have its VIN, which was identical with the information he was provided by Certas. Mr. Oliveira's conclusions regarding the Honda he appraised were that there was mostly cosmetic damage present, and no significant frame damage. He noted that the only reason the car was "written off" was that it would have cost more to repair the vehicle than the vehicle was actually worth. On cross-examination, Mr. Oliveira was asked whether he was certain that he was appraising the correct vehicle when it did not have a licence plate attached? His response was that the most important identification information comes from the VIN, not the licence plate, and he was fully satisfied that he appraised the vehicle with the VIN which he had been asked to inspect.
Al Jenkins
Mr. Jenkins was called as an accident investigator who is employed by TSI Solutions Inc. Prior to becoming an investigator, Mr. Jenkins worked with the Toronto Police for 18 years, 9 of which he specialized in traffic investigations. He has studied accident reconstruction at the Ontario Police College, although he did not complete all four levels of the training program offered there. RBC did not ask to qualify Mr. Jenkins as an expert witness, but rather called him to provide direct evidence of the actual observations he made and various measurements he took.
Mr. Jenkins testified that originally his firm was retained by Certas to investigate whether the damage reported to the two vehicles alleged to have collided was consistent with the reports of how the collision occurred. He stated that he went to the Academy body shop and identified a Honda Civic by its VIN, as there were no plates on the vehicle. He also obtained a copy of the collision report from RBC as well as photos of the damage to the Acura vehicle and the appraisal of the body damage on it. He never actually saw the Acura directly. Mr. Jenkins observed what he regarded as inconsistencies in the location and severity of damage to the vehicles. He noted that the height of the damage to the two vehicles was significantly different and that he could find no evidence of paint transfer on the Honda. He also stated that the minor amount of damage to the plastic light lens on the Acura is, in his experience, out of character with an impact between vehicles moving at the speed Mr. Dwumaah stated.
Rob Seaton
Mr. Seaton was called as an expert on accident reconstruction. Based on qualifying evidence led of Mr. Seaton's education and long experience in this field, and Dr. Yazdani not challenging his qualifications as an expert, I accepted Mr. Seaton as qualified to provide opinion evidence regarding the physical consequences of the impact of automobiles during collisions and the consistency between descriptions of collisions and the physical evidence of the impact.
Mr. Seaton was retained by RBC in August 2003 to prepare a report regarding this incident. The conclusion of that report was that no accident happened as reported by Mr. Dwumaah.
Mr. Seaton used the diagram on the accident report prepared by the police officer who investigated the incident as source data for his analysis. He testified that the convention used in the preparation of such accident scheme diagrams is that the officer shows, as accurately as possible, the vehicles in their "final resting place." The accident report here clearly illustrates the two vehicles involved as remaining "in contact" with each other at their final resting place. In Mr. Seaton's expert opinion, Mr. Dwumaah's vehicle, which Mr. Dwumaah said was travelling at about 50 km/h, would have needed roughly 39 metres to come to a full stop. Also, if the Honda was travelling at a reported 20 km/h, which its driver said it was, it would have needed roughly 11 metres to stop. If these two vehicles impacted each other as described, it would not be physically possible for them to have ended up remaining in contact with each other at virtually the point of initial impact.
Also, Mr. Seaton testified that a collision at those speeds would have resulted in debris from broken glass, plastic, metal, paint, etc. This is especially so if, as described by Mr. Dwumaah, there was no evidence of braking before the collision. If there is sufficient energy involved in a collision to cause the damage found on these vehicles, then there would have to be debris found somewhere near the point of impact. Mr. Seaton noted that the police accident report noted no debris of any sort was found. In his professional opinion this "lack" of evidence of debris is evidence which supports the collision not having happened as described.
Mr. Seaton also endorsed Mr. Jenkins' conclusion that there would have been paint transfer between the vehicles involved in any such collision. His opinion was that, if one accepts Mr. Jenkins' observation that there was no evidence of white paint from the Acura found on the Honda, the two vehicles did not collide as described. Mr. Seaton described the engine hood cover of the Honda as being very sharp and in a collision it would have sliced into the Acura, leaving paint transfer. From analysing the photographs of Mr. Dwumaah's car Mr. Seaton noted that there was also no evidence of blue paint transfer from the Honda on the Acura.
To further support his conclusion that no accident occurred as reported here, Mr. Seaton discussed the consequences of the observations Mr. Jenkins made of the height of the damage on the two involved vehicles. It should be noted here that Mr. Jenkins could not find an Acura Vigor from which to take measurements. Instead he used an Acura Legend. When he was asked about the implications of using an Acura Legend as the benchmark, Mr. Seaton stated that he checked the manufacturer's specifications for the two vehicles and found that there is approximately 3 cm in height difference between the two them. He acknowledged that although this introduces a potential margin of error into the calculations, the discrepancy in the location of the damage on these two vehicles is so great that it made no relevant difference to his conclusions. For instance, he testified that there was almost 6 inches difference in the height of the damage to the headlight area of the Acura compared to the damage on the Honda at the point of impact. He noted that the headlights on the Acura are located behind the bumper. If impact had occurred as described, then the Acura's bumper would have been damaged and pushed back into the car. One would also expect to see the headlights and engine hood crushed.
On cross-examination, Mr. Seaton was asked if a vehicle's sitting out in the weather could cause evidence of paint transfer to be lost. His response was that although some paint chips can certainly wash away, the heat and friction involved in such a collision would result in some residue remaining observable. He was also asked whether the police officer's failure to observe any skid marks at the accident scene might be a result of their having been washed away in the rain that night. Mr. Seaton testified that skid marks are not washed away in the rain as they actually are caused by the heat of the tires wicking the asphalt material up to the road surface. They can often be seen for many months after an accident.
Chris Metson
As RBC's representative at the arbitration, Mr. Metson was called to provide evidence about the way RBC handled the file and came to the decision to deny all of Mr. Dwumaah's claims for benefits. Mr. Metson's evidence was primarily directed at responding to Mr. Dwumaah's claim for a special award.
ANALYSIS OF THE EVIDENCE
Having outlined the salient evidence presented during the hearing, there are two different questions which need to be considered. RBC argues that the evidence it provided of a "staged accident", taken together with the lack of credibility of Mr. Dwumaah's version of the facts, justified their decision to deny him benefits based on wilful material misrepresentation of the facts. For the reasons set out below, I find that Mr. Dwumaah did wilfully misrepresent material facts and I agree with RBC's argument that Mr. Dwumaah is not entitled to the accident benefits he claims here. Alternatively, or if I am wrong in my conclusion that Mr. Dwumaah wilfully misrepresented material facts, I need to consider whether Mr. Dwumaah satisfied the ordinary civil burden of proof to support his claim to the benefits in issue. Even if I am wrong about the issue of material misrepresentation, I find that Mr. Dwumaah has not even remotely met his burden of proof in this arbitration and, therefore, all of his claims must be dismissed.
1. Material Misrepresentation
In this arbitration RBC's position is that Mr. Dwumaah's claim that he was involved in an accident on November 29, 2001 constitutes the wilful misrepresentation of material facts that colour each and every claim for benefits he has made. Accident benefits are available to persons involved in an "accident", which is defined in section 2 of the Schedule as:
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.
Arbitrators and judges have in numerous cases dealt with situations where novel "incidents" gave rise to questions of whether the "use or operation" of an automobile "directly caused" impairments and damage. The situation in this case raises a different kind of question and initiates a different inquiry. Is what RBC alleges effectively to have been a "staged" accident an accident at all under the Schedule? I find that I do not need to decide that specific issue, as my conclusions about material misrepresentation and failure to meet the burden of proof render that issue moot.
The test for entitlement to benefits under the Schedule are not fault related or directly correlated with property damage caused to vehicles. There can be injuries and impairments without property damage to the vehicles and vice versa. However, to successfully claim benefits an applicant must demonstrate that any impairment they have was directly caused by the "accident."
I accept that the police report specifies that these two vehicles were found by the attending officer to be still in physical contact with each other. Based on this, I am prepared to draw the inference that some sort of "incident" involving them occurred. The more important inquiry is whether any impairment to Mr. Dwumaah was directly caused by this "incident."
The question of material misrepresentation in this case is: whether Mr. Dwumaah's description of the "incident" that led up to these claims was intentionally false or misleading? Section 48(1) of the Schedule states:
If an insured person has wilfully misrepresented material facts with respect to an application for a benefit, the insurer may terminate payment of the benefit.
Mr. Dwumaah claims that a number of things directly flowed from the events of November 29, 2001: his physical and psychological injuries and suffering, his loss of income due to subsequent disability, his need for medical, housekeeping and attendant care services, and his incurring legal and assessment expenses. Some plausible description of the incident needs to serve as the foundation of Mr. Dwumaah's claims for benefits. In many cases, the mechanics of the collision are not in issue, but when the insurer puts them into issue, and provides credible evidence to challenge the maxim that "the facts speak for themselves," an applicant has the obligation to present some evidence to support that an accident directly caused the impairments that underlie his claims for benefits. This could be done by leading direct evidence to support his claims or by challenging the evidence of the insurer. Again, I note that this case is not about the legal definition of "accident", but rather about the credibility of different versions of the facts.
Mr. Dwumaah and Dr. Yazdani introduced no evidence to support the Applicant's claims in this hearing, other than the uncorroborated testimony of Mr. Dwumaah that he completely lost his sight and so did not see anything that happened; and, more significantly, they also did not meaningfully challenge RBC's evidence in any way that would cause an arbitrator to doubt the plausibility of the accident reconstruction evidence. Although accident reconstruction reports are not infallible, Mr. Seaton's oral evidence and his report clearly set out the nature of the investigation and specific measurements taken and observations made, and it openly and clearly acknowledges the assumptions his conclusions are based on. When those assumptions are consistent with common sense and uncontradicted by any direct evidence or challenge on cross-examination, I find that it is reasonable for an arbitrator to rely on them and I have done so here.
My conclusions on the issue of material misrepresentation are based not only on the inherent plausibility, common sense and clarity of Mr. Seaton's evidence, but also by the utter absurdity of Mr. Dwumaah's version of the facts. Mr. Dwumaah tells a story that is implausible in the extreme. His burden of proof is the ordinary civil balance of probabilities and he has not come close to meeting that.
Mr. Dwumaah's testimony was riddled with contradictions and convenient lapses of memory. Mr. Dwumaah alleges he suffered serious injuries in the automobile incident, especially his temporary, but total, loss of vision. The problem is that there is simply no corroboration, or support of any kind, for what he says. In particular, there is no mention of this vision loss in any of the medical documentation and I believe that it is reasonable to assume that, if Mr Dwumaah had alerted the health care practitioners to this condition as he said he did, it would at least have been noted somewhere in their reports, and most likely further investigated and followed up in some way. The total loss of vision for close to four hours after an automobile accident is not a trifling or insignificant medical symptom; and if Mr. Dwumaah had reported this condition to the people attending to him as he testified, and if they did nothing to note it or further investigate it, one might start to wonder whether gross negligence was involved. However, the absence of any supporting evidence for such an extraordinary event persuades me instead to draw the inference that it never happened.
Beyond the absence of corroboration I find that Mr. Dwumaah's testimony about the vision loss is itself implausible and inconsistent. He maintained during cross-examination that he was sightless and so he could not see the other car involved in the accident, the other driver or passengers, or even the damage to his own vehicle. However, in the statement provided to Mr. Faber, taken at his lawyer's office, and either read by him personally according to Mr. Faber, or read to him by Mr. Porcelli according to Mr. Dwumaah, before signing it, he stated unequivocally that the whole front end of the other car was smashed. Either Mr. Dwumaah could see or he couldn't. Mr. Dwumaah did not tell Mr. Faber that this was information he had obtained second hand from the police officer and I find this omission to be relevant and significant. There was no attempt by Dr. Yazdani to further explore or clarify this inconsistency in re-examination. I am left to draw as the only reasonable conclusion that Mr. Dwumaah was being untruthful about his vision loss at the scene of the incident. And I further conclude, in agreement with Mr. McCorriston's submission, that Mr. Dwumaah had motivation to feign sightlessness, as it allowed him to conveniently explain away his lack of information about what happened to him and the incongruities in his version of events.
There are multiple levels on which I find that this collision is so improbable as to be unbelievable. The damage to Mr. Dwumaah's Acura is inexplicable based on the evidence before me. I accept Mr. Seaton's unchallenged professional opinion that the convention in drawing police accident reports is to draw the final resting place of the vehicles and not some prior positioning of them. The report here clearly shows the two vehicles remaining in contact when the officer arrived at the scene. I also accept Mr. Seaton's conclusion that two vehicles impacting on something close to a 45 degree vector, travelling respectively at about 50 and 20 km/h, would not instantly "stop on a dime." The more consistent and common sense conclusion is that they would have either bounced off each other or become an entangled mess. The odds of two vehicles impacting at those speeds and instantaneously coming to an abrupt stop doesn't correspond with even the most basic principles of high school physics.
While the final resting place of the vehicles doesn't make sense, based on Mr. Dwumaah's version of the facts, it is even more difficult to understand the damage occasioned to the two vehicles. I accept the evidence provided by the two appraisers and Mr. Jenkins that the vehicles the appraisers inspected were the ones identified as having been involved in this incident. I am satisfied that they checked the VIN of the respective vehicles and that this is an adequate method of vehicle identification along with knowing the model of vehicle they were looking for.
To the lay observer, looking at the photos of Mr. Dwumaah's Acura, it is evident that the car suffered some minor paint scraping to the lower right bumper skirt. There is no visible damage to the right side fender, no denting, no creasing, no grazing, no scraping, no paint chipping. No headlights or turning lights appear to be broken or cracked. Yet this car was ostensibly travelling at 50 km/h and was hit by a car travelling somewhere between 20 km/h and 40 km/h. One might be first disposed to say that Mr. Dwumaah was just lucky that his car was not more seriously damaged, but then one has to look at what apparently happened to the Honda. If the crash was perpendicular, as Mr Dwumaah says it was, even though he didn't see it, one would expect to find damage across the front end of the Honda. and that is exactly where Mr. Dwumaah told Mr. Jenkins that the damage was – although he qualified this in cross-examination by saying he only knew this because the police officer told him. However, when one looks at the photos, one sees that the Honda's left front corner is obviously smashed in and the headlights and turning lights are broken. The angle of impact appears to me, and I accept Mr. Seaton's expert evidence confirming this, that these damages seem to be occasioned by a force coming not perpendicular but closer to a 45 degree angle. I find that this discrepancy is salient, particularly in the way it relates to Mr. Dwumaah's general credibility.
Even if one could plausibly explain the discrepancy in the angles of impact in this collision there is also the issue of the elevation of the damage above ground level. The cars were measured by Mr. Jenkins, and the difference in height of the points of impact on the vehicles simply don't coincide. I accept that, according to Mr Jenkins' and Mr. Seaton's measurements, the accuracy of which were not challenged in cross-examination, there is almost 6 inches in difference between the height of damage to the Acura and to the Honda. I accept Mr. Seaton's conclusion that this difference is significant enough that it cannot be reasonably accounted for by the one vehicle measured not being an Acura Vigor. It is reasonable to assume that if the damage to the two vehicles was caused by the impact in an accident, there should be "some" correlation between the locations of the damage to the two vehicles. In other words, both vehicles would be expected to suffer damage at the point of impact. This is just common sense. There certainly could be other damage caused by the way the bodies of the cars reacted to the forces of the impact transferred to them, but the problem in this case is that the damage at the alleged point of impact for these vehicles doesn't even remotely line up.
Finally, Mr. Seaton testified that there was no trace evidence found at the scene confirming this collision. Mr. Seaton testified to where this is recorded on a police accident report. Also there was no paint transfer found on either car and his testimony was that this would have been there long after a collision of this sort. From the photos in evidence it is clear that the Honda's front lights and lens cover were broken and clearly this material had to go somewhere. If the damage happened during this incident, debris material should have been found somewhere near the accident scene. There were no skid or tire marks observed by the investigating officer, and these would have remained visible long after, according to Mr. Seaton's explanation. The Honda driver did say in his statement that he applied the brakes to try to avoid the collision. Mr. Seaton explained in his testimony that tire marks are caused by the friction generated by the heat of the tires on the asphalt. This heat brings asphalt material to the road surface which leaves a tire mark that remains visible for some time afterwards. Rain does not wash away skid marks. Besides, if Mr. Dwumaah did not apply his brakes, which he testified he did not, it makes his claim that the vehicles just "stopped" at the point of impact even more ludicrous.
Therefore, considering the totality of the evidence before me, including the utter lack of evidence to challenge that introduced by RBC, I find the only reasonable conclusion that I can draw is that the "incident" as reported by Mr. Dwumaah did not happen.
If the incident did not happen, then it follows by implication that any harm or disability Mr. Dwumaah may have could not have been caused by the "accident", let alone "directly" caused by it.
Further, I find that Mr. Dwumaah's version of the facts is so utterly implausible that the only reasonable conclusion I can draw is that he wilfully concocted it to attempt to claim accident benefits. There is no doubt in my mind that wilfully misleading an insurer about the basic facts of an incident is a material misrepresentation. I am unable to imagine anything more material and more disruptive of the chain of causality that must, under the regulation, directly connect an accident with impairments and disability. Thus, I find that Mr. Dwumaah wilfully misrepresented material facts in respect of his application for accident benefits and, therefore, pursuant to section 48 of the Schedule, RBC was justified in terminating payment of any and all benefits to him.
2. Evidentiary Support for Applicant's Benefit Claims
The other level of this case is that, even if I were to accept that an "accident" took place, and even if I were to find that Mr. Dwumaah did not materially misrepresent how the incident happened, there still was no evidence whatsoever offered to support any of Mr. Dwumaah's claims made in this arbitration. I find therefore that there is no evidence before me which, if believed, could support any of Mr. Dwumaah's claims for benefits, and for that reason alone I dismiss them all.
It is trite law that an applicant has to prove his or her case in arbitration by adducing evidence during the hearing capable of meeting the civil burden of proof, being the balance of probabilities. It is difficult to understand how such a basic principle of the arbitration process can be misunderstood or ignored by anyone who holds himself or herself out to be a professional legal representative and who charges clients fees for that service. The legal representation and advocacy of Mr. Dwumaah's representative in this case confirms the need for articulating and monitoring basic competency standards for statutory accident benefits representatives.
Mr. Dwumaah's legal representative, Dr. Yazdani, failed to demonstrate during the arbitration that he understands even the most rudimentary aspects of the arbitration process. Specifically, he appeared to be completely unaware that it was his professional obligation, as Mr. Dwumaah's legal representative, to tender evidence during the arbitration to support Mr. Dwumaah's claims for benefits during the hearing. This is notwithstanding that Dr. Yazdani holds himself out as not only having acquired a bachelor's degree in law, but that he also has obtained doctoral level qualifications in jurisprudence from an Ontario law school.
After the witnesses in the arbitration had completed their testimony, Dr. Yazdani made his closing submissions on behalf of Mr. Dwumaah. As I was unclear about what evidence I was being asked to consider in support of Mr. Dwumaah's claims, I asked Dr. Yazdani to specifically advise me what evidence he was arguing that I should base my decision on for entitlement to the substantive benefits being claimed. Regarding the issue of income replacement benefits, no evidence was called to support Mr. Dwumaah's entitlement to those benefits, either to establish that he was disabled from doing the job he was working at before an accident, or as to how I should quantify those benefits even if I found entitlement. The only evidence of pre-accident employment introduced during the arbitration was actually surfaced during Mr. McCorriston's cross-examination and it only supports the inference that Mr. Dwumaah did not actually work during the four weeks prior to the accident. Dr. Yazdani, incomprehensibly, did nothing to try to clarify this situation through re-examination.4 There was also no evidence of Mr. Dwumaah's entitlement to income replacement benefits, based on employment during the previous 52 weeks, provided to the Insurer during the entire claim period, or to me during this arbitration. On the basis of the evidence before me, I find that there is no merit to Mr. Dwumaah's claim for income replacement benefits whatsoever.
Dr. Yazdani also made some very bewildering comments during his final submissions about "getting evidence later"; ostensibly, he was referring to providing this to me at some undefined time after the hearing ends. This only further reinforces my view that Dr. Yazdani demonstrated a very serious lack of understanding of the basics of the arbitration process and a legal representative's duties to competently advocate on behalf of his client. I don't believe that he effectively assisted Mr. Dwumaah in advancing his claims in any way during this arbitration. How it is possible for a paid legal representative to get all the way to an arbitration hearing and not have marshalled or prepared evidence to support the case he was to argue is almost unfathomable and unacceptable. It certainly falls below any minimally acceptable standards of representation from someone who holds himself out to the public to act as a professional accident benefit representative.
As of November 2003, the Financial Services Commission of Ontario requires that paralegal representatives adhere to a Code of Conduct. Part 2 of that Code sets out specific competencies that are now expected of all paralegal representatives and they explicitly include having a reasonable knowledge of procedure. I believe that this section applies especially to representatives who, like Dr. Yazdani, hold themselves out to the public as being competent to prepare for and actually conduct arbitration proceedings on behalf of accident benefit claimants.
However, having found that Mr. Dwumaah intentionally misrepresented material facts supporting his claims to RBC, I am tempted to the counterintuitive conclusion that perhaps it was a good thing that he did not have more effective and competent legal representation. But, on further reflection, I find that such an inference is not in fact warranted. If Mr. Dwumaah did have effective and competent legal representation, perhaps the time, energy and resources that have been wasted on this case could have been avoided. A concept analogous to "officer of the court" applies in arbitration, and representatives, as the Code of Conduct now articulates, have a professional obligation not to assist in presenting or pursuing manifestly groundless claims. They should instead serve as reliable sounding boards for clients who want to pursue such claims by refusing to lend their assistance to such efforts.
Dr. Yazdani, rather astonishingly, agreed when I suggested to him that he had introduced absolutely no evidence to support Mr. Dwumaah's medical, housekeeping or attendant care claims. His submissions on these points were completely unhelpful and also demonstrated further that he did not appreciate the proper role of a legal advocate, in that he insisted on advising me that he "personally believed" his client was telling the truth. In making these remarks he conflated the important distinction between an advocate's giving personal testimony or "oath helping", as it used to be called in the early days of the Common Law, and presenting reasonable argument based on law and the evidence presented during the hearing.
Finally, Dr. Yazdani's cross examinations were brief and largely addressed to trivial points that he reasonably ought to have known were of little, and most often, no relevance. From a decision maker's point of view, his representation and advocacy were of no assistance at all. Even Mr. Dwumaah seemed to be aware of this, as at one point during the hearing he jumped to his feet and started making submissions on his own. Based on Mr. Yazdani's performance during this hearing, his competence as a legal representative for statutory accident benefit claimants in an arbitration hearing, must be seriously questioned.
Finally, with regard to RBC's request for a return of its assessment fee, I note that the statutory authority for making such an order has been repealed. Therefore, I dismiss that claim, although I would have ordered it if I had jurisdiction.
EXPENSES:
RBC has claimed its expenses in this arbitration and I find that they are entitled to those expenses based on the criteria set out for awarding them:
Each party's degree of success in the outcome of the proceeding.
Any written offers to settle that were made in accordance with the rules of practice and procedure applicable to the proceeding after the conclusion of mediation and before the conclusion of the arbitration.
Whether novel issues are raised in the proceeding.
The conduct of a party or a party’s representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders.
Whether any aspect of the proceeding was improper, vexatious or unnecessary.
This raises the related issue, given the findings I have made, of who should bear the responsibility of paying RBC's expenses. Effective November 1, 2003, section 282(11.2) of the Insurance Act provides that in certain circumstances SABS representatives can be held personally responsible for expenses arising out of their causing expenses to be incurred without reasonable cause. Flowing from the findings I have made about the quality of representation provided by Dr. Yazdani in these proceedings, I am compelled to raise the question as to how expenses should be apportioned, if at all, between Mr. Dwumaah and Dr. Yazdani. The statute provides in section 282(11.4) that if an arbitrator considers making an expense award against a representative, that representative shall be given an opportunity to make representations on the matter. I am considering making an expense award against Dr. Yazdani and this decision shall put him on notice of that intention on my part.
If the parties cannot agree on expenses and who should pay them within 30 days of the date of this decision, an expense hearing may be requested by Mr. Dwumaah, Dr. Yazdani or RBC, and I will decide the issue.
May 3, 2005
Robert A. Kominar Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 58
FSCO A03-000956
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
YAW POKU DWUMAAH
Applicant
and
RBC GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Dwumaah’s claims for income replacement, medical, housekeeping, attendant care, cost of examinations benefits, special award and interest are dismissed.
RBC's claim for a return of its assessment fee is dismissed.
RBC is entitled to its expenses in this hearing. The parties shall have 30 days to agree on expenses – if they cannot agree, an expense hearing can be arranged to determine the quantum of expenses and who shall pay them.
May 3, 2005
Robert A. Kominar Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- I note, but draw no direct inference from the fact that Mr. Dwumaah was assisted by a Twi translator, provided by the Commission, throughout the arbitration hearing. However, Mr. Dwumaah appeared to understand English quite well. He regularly responded to questions put to him before the translator communicated to him what was being said in Twi. Mr. Dwumaah also was observed to communicate with Dr. Yazdani in English.
- Insurer of the other vehicle
- This begs the question of whether such an effort would have been proper re-examination. Clearly this evidence ought to have been led, if it existed at all, during Mr. Dwumaah's evidence-in-chief.