Neutral Citation: 2005 ONFSCDRS 79

FSCO A04-000049

BETWEEN:

ABSHIR ISMAIL YUSUF

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Jeffrey Rogers

Heard: May 4 and 5, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Yusuf, in person Maura A. Thompson, solicitor for Guarantee Company of North America

Issues:

The Applicant, Abshir Ismail Yusuf, alleged that he was injured in a motor vehicle accident on June 4, 2002. He applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee refused to pay any benefits, taking the position that Mr. Yusuf wilfully misrepresented that he was involved in an accident and was therefore not entitled to benefits. The parties were unable to resolve their dispute through mediation, and Mr. Yusuf applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Mr. Yusuf precluded from receiving benefits by operation of Section 48 of the Schedule because he wilfully misrepresented a material fact with respect to his application for benefits, namely that he was involved in an accident on June 4, 2002?

Result:

Mr. Yusuf is precluded from receiving benefits by operation of Section 48 of the Schedule because he wilfully misrepresented a material fact with respect to his application for benefits, namely that he was involved in an accident on June 4, 2002.

PROCEDURAL RULINGS

Before the hearing started, Mr. Mohamed Doli, counsel for Mr. Yusuf, sought an order that he be removed from the record. He had written the Commission requesting removal on April 26, 2005, but he had not been removed because he did not have his client's written consent as required by Rule 9.8 of the Dispute Resolution Practice Code. Guarantee consented to his withdrawal, provided that it did not result in a further adjournment. Mr. Yusuf did not oppose the withdrawal, if the hearing was adjourned so that he could retain new counsel.

The reason Mr. Doli gave for withdrawal was an irreparable breakdown in the solicitor-client relationship. He indicated that the relationship had begun to deteriorate 3 to 4 weeks earlier as he prepared for the hearing and had reached an impasse at the time that he wrote to the Commission. Because of solicitor-client privilege, he could not elaborate. Mr. Yusuf acknowledged that Mr. Doli had told him of his intention to withdraw for lack of co-operation, about a week before the hearing. He had given him his file. According to Mr. Yusuf, Mr. Doli had not been specific on what co-operation was lacking.

I ruled that Mr. Doli could not be required to continue to represent Mr. Yusuf and, there being no other reason to require him to remain on the record, I ordered that he be removed.

I denied the request for an adjournment. This hearing was originally scheduled for January 11 and 12, 2005. It was adjourned at Mr. Yusufs request because he had retained Mr. Doli as new counsel around January 7, 2005. He had terminated his relationship with his previous solicitors around October 28, 2004 and they had been removed from the record at that time. Mr. Yusuf was aware of the earlier adjournment. The adjournment was peremptory on Mr. Yusuf. The letter granting the adjournment informed Mr. Yusuf that a further adjournment would only be granted in extreme and unforeseeable circumstances.

A request for a further adjournment, made on his behalf on March 2, 2005, for the purpose of obtaining medical evidence, was denied on the grounds that the earlier adjournment had been granted and there was no evidence that the medical evidence was necessary for this hearing.

Mr. Doli was Mr. Yusufs third counsel in this arbitration. Mr. Yusuf indicated that his first two counsel were discharged because they had reneged on agreements they had made to represent him without a monetary retainer. After Mr. Doli refused to continue, he had talked to some lawyers, but they were unable to take his case on such short notice. He would retain new counsel as soon as possible, if granted an adjournment.

I ruled that although Mr. Yusuf has a right to be represented by counsel, that right is not absolute. It must be balanced in these circumstances against Guarantee's right to proceed expeditiously and with the least expense. That right had already been compromised by the first adjournment. Given the history of this matter, it was unlikely that, granted a further adjournment, Mr. Yusuf would be able to retain counsel to represent him on terms he could accept.

As indicated above, the request for an adjournment was therefore denied.

Upon that ruling, Mr. Yusuf indicated that he was not competent to represent himself and was therefore unable to proceed without a lawyer. I informed him that he was likely his most important witness and that he could choose to testify and to call any other available witnesses. The decision on adjournment would not be revisited. Given 10 minutes to reconsider, he decided to testify.

At the conclusion of his evidence I asked Mr. Yusuf whether he intended to call any other witnesses. He said that he could get the passengers in his car if granted a short break. He would also like to call a witness identified in the collision report who had not been summoned and who had told one of his former counsel that he would only testify if the "judge" guaranteed his family's safety. Mr. Yusuf was able to get the passengers over the lunch break. For the reasons above, the hearing was not adjourned to pursue the reluctant witness.

EVIDENCE AND ANALYSIS:

On June 2, 2002 Mr. Yusuf was driving his sister's 1989 Nissan Sentra in the centre lane, eastbound on Sheppard Avenue West. His sister, Farhiyo Yusuf, was in the back seat and her 8 year old daughter Zaynab Yusuf was in the front passenger seat. The Nissan was involved in an incident with a 1999 Acura Integra at the intersection of Sheppard Avenue West and Sunfield Road, which runs south off Sheppard. Police and ambulance were called to the scene and Mr. Yusuf's passengers were taken away by ambulance.

Mr. Yusuf remained at the scene for the police investigation and both vehicles were towed away. The driver of the Integra later gave a written statement to his insurer. He disagrees with Mr. Yusuf on who caused the collision. However, the reports given at the scene, the written statement and the evidence at the hearing are consistent with regard to the nature of the collision. They all agree that the Integra was making a left turn onto Sheppard when it was struck on the left front fender by the front of the Nissan.

Alan Jenkins and Sam Kodsi, investigators that Guarantee retained, concluded otherwise. They concluded that the physical damage found on the Nissan and the Integra could not have occurred in a collision between the two cars. They further concluded that the damage to the Integra was not likely caused by collision with another car.

Mr. Jenkins and Mr. Kodsi testified for Guarantee. For the reasons below, I accept the evidence of Mr. Jenkins and Mr. Kodsi. I reject the evidence of Mr. Yusuf and his passengers to the effect that the cars collided.

Mr. Jenkins spent nine and a half years as a Toronto police officer specializing in motor vehicle accident investigations. He then opened his own business conducting accident investigations, specializing in physical damage. He estimates that he investigated 1,100 accidents in that capacity from 1993 to 1999. Since then he has continued to do the same kind of work for TSI Solutions Inc. and has investigated a further 600 accidents. In addition to training by the Toronto Police, he has completed a course in Kinematics in Low Velocity Accidents at Texas A&M University.

He was tendered as an expert in physical damage from motor vehicle accidents. He has been accepted by the Commission as an expert in this field on several occasions and has been similarly qualified at all trial levels of Ontario Courts.

Mr. Yusuf challenged his qualification on the grounds that he had not seen any certificates or degrees to prove Mr. Jenkins' expertise.

I ruled that, given Mr. Jenkins training and experience, he was qualified to give expert evidence as proposed. In any event, nothing in this decision turns on his opinion. The conclusions that he made upon his observations of the physical damage are supported by general knowledge and simple common sense.

Mr. Jenkins attended at the body shop where the Nissan was towed after the incident, inspected the vehicle and took pictures.² He got a copy of a statement the driver of the Integra had given to his insurer and pictures of the damaged Integra.³

If the Nissan hit the Integra as claimed, one would expect damage to the front of the Nissan, likely to the right front as it swerved left to avoid the Integra coming from its right. One would also expect corresponding damage to the Integra. A review of the pictures reveals damage to the Integra on the left front fender, mostly above the level of the bumper. There is only very minor damage on the Integra, at or below bumper level: a broken lens on the left front signal light. The prominent feature of the Integra damage is two sharp indentations. There are no corresponding sharp protrusions on the Nissan.

The damage on the Nissan is mostly at bumper level. Above bumper level, there is a dent around the middle of the hood of the Nissan, but it is localized damage, not corresponding to the area of damage on the Integra. The grill and headlights of the Nissan, being the most brittle elements of the front of the Nissan, that would have come into contact with the Integra before the hood, are fully intact.

Mr. Jenkins found no paint from the Integra on the Nissan. There is no paint transfer apparent from the pictures he took or from the pictures of the Integra. Assuming that the light marks on the black bumper of the Nissan in photo # 1 is paint from the Integra as Mr. Yusuf suggested, there would be corresponding damage at that height on the Integra. There is none.

The damage to the left front bumper of the Nissan appears to have been caused by impact from the rear. The supporting member of the bumper is bent forward, not backward (photo #4). The supporting structure on the right side of the front bumper is intact (photo #5) and both front fenders of the Nissan are undamaged. There is no significant damage to the bumper, consistent with frontal impact.

The sharp dent to the left front bumper could not have been caused by impact with the turned left front wheel of the Integra, as Mr. Yusuf proposed. The area of damage is too narrow and the wheel would have to hit the undercarriage of the Nissan as well. The undercarriage is intact (photos 1 and 2).

If the damage to the left bumper was caused in a later accident, as Mr. Yusuf suggested, this does not clarify the question of what damage the Nissan sustained upon impact with the Integra. There is still no damage to the Nissan at the height of the damage to the Integra. The difference in the height of the damage could not be attributed to the slope in the roadway, as Mr. Yusuf suggested. At the point of impact, the effect of the slope would be minimal.

Both Mr. Yusuf and his sister testified that when they saw the Nissan shortly after the incident, it was more badly damaged than the pictures indicate. Mr. Yusuf was not specific on the additional damage. He deduced that there must have been more damage from the fact that the Nissan was written off. His sister recalled that when she saw the Nissan the next day, the bumper was "on the floor", the right front fender was dented and the right front light was broken.

That kind of damage would be consistent with impact with another vehicle in the manner described. If Ms. Yusuf is correct, it would mean that someone repaired the headlight, fender and the interior structure of the bumper, in the few days before Mr. Jenkins took the pictures. That seems unlikely. In addition, the right front fender shows rust where it attaches to the bumper. It also shows minor damage above the wheel. That is not consistent with recent repair.

Even assuming that the Nissan did sustain that damage, the Nissan would not have caused the sharp dents to the Integra and it would have left some red paint on the Integra.

I find that there is nothing in the physical evidence, consistent with a collision between the Nissan and the Integra and that Mr. Yusuf wilfully misrepresented that a collision occurred, a material fact with respect to his application for benefits.

Section 48(1) of the Schedule provides as follows:

If an insured person has wilfully misrepresented material facts with respect to an application for a benefit, the insurer may terminate payment of this benefit.

By operation of section 48(1), Mr. Yusuf is precluded from receiving the benefits he applied for.

EXPENSES:

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

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

June 3, 2005

Jeffrey Rogers Arbitrator

Date