Financial Services Commission of Ontario
Neutral Citation: 2005 ONFSCDRS 80 FSCO A04-000020 and A04-000006
BETWEEN:
FAISAL MOHAMED and SAFIYA YUSUF Applicants
and
GUARANTEE COMPANY OF NORTH AMERICA Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Fred Sampliner
Heard: February 14, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Majid Yazdani for Mr. Mohamed and Mrs. Yusuf Keri Wilson for Guarantee Company of North America
Issues:
The Applicants, Faisal Mohamed and Safiya Yusuf, claimed they were injured in a motor vehicle accident on April 12, 2003. They applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.1 Guarantee claimed the Applicants were not involved in an accident, and refused to pay them benefits. Mr. Mohamed and Mrs. Yusuf filed for mediation on their claims, and subsequently 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:
- Were Mr. Mohamed and Mrs. Yusuf involved in an accident on April 12, 2003?
Result:
- Mr. Mohamed and Mrs. Yusuf were not involved in an accident on April 12, 2003.
EVIDENCE AND ANALYSIS:
This hearing proceeded on Guarantee's evidence alone. Mr. Faisal Mohamed and Mrs. Safiya Yusuf, husband and wife, presented no evidence and did not appear at the hearing. Their representative stated they did not wish to attend the hearing, and did not provide any reason for their failure to attend.
The Applicants' representative requested an adjournment of the hearing at the commencement of the proceeding. I denied Mr. Mohamed's and Mrs. Yusuf's request to adjourn the hearing because they gave no excuse for their non-attendance and did not indicate they intended to present evidence for their case in the future. The hearing notice sent to the Applicants explained that the Arbitrator may proceed with the hearing if they did not attend.
Guarantee introduced as evidence Mr. Mohamed's accident report to the police, he and his wife's unsworn written statements, and Guarantee's evidence from its experts and investigators. There is no independent investigation by the police about the accident or any indication they were at the scene.
Mr. Mohamed's accident report to the police is consistent with his and his wife's written statements to Guarantee. They alleged their sedan was side-swiped by a van while they were travelling in their lane on Lawrence Avenue East in Toronto on April 12, 2003. Mr. Mohamed told the police and Guarantee that the van left the accident scene, but they followed it and were able to take down the licence plate. This evidence creates a presumption that the accident occurred.
The written statement that the van driver later gave to Guarantee denies he or his vehicle were involved in the accident, but admits he was charged by the police with traffic offences arising out of the incident. He stated he received traffic tickets for failing to remain at the accident scene, failing to report an accident and making an unsafe lane change. His statement explains that he entered a guilty plea to the first offence on advice of his representative because he could not afford to defend against the other charges that were dropped as a result of his guilty plea.
There is no evidence to explain the apparent conflict between the van driver's denial of the accident with the traffic violations he received. Therefore, I cannot rely on the van driver's statement, and give it no weight.
The photographs of Mr. Mohamed's sedan taken by the police at the collision reporting centre on the accident date and those that Guarantee's collision expert took two months later both show the same minor horizontal scuffs and a horizontal black transfer mark on the right fender in front of the wheel well and adjoining right front bumper. There is also a small crack in the lower right front corner edge of the plastic bumper.
Guarantee's expert reports and their testimony contradict the accident report, establishing through the physical evidence that there was no contact between these two vehicles. Mr. Daniel Mills, a masters in civil engineering, testified that he previously prepared 275 accident reconstruction reports and he was recently accepted as an expert in this field in a Superior Court trial. Mr. James Surowiak is a licensed engineer with considerably less experience and training in accident reconstruction than Mr. Mills. Both experts testified.
Although Mr. Surowiak concurred with Mr. Mills' report and testimony that the physical evidence on the vehicles was not consistent with the Applicants' statements and the photographs of the vehicles, he did not personally view the damages on either the van or sedan. I find that Mr. Mills' evidence more persuasive based on his more extensive experience in accident reconstruction and his direct viewing of the physical damages to the vehicles.
Mr. Mills testified that the sedan was struck from front to back because the deepest marks were made on the most forward area of damage on the Mohamed vehicle. His opinion directly contradicts the side-swipe description Mr. Mohamed gave the police, showing a back to front forward motion of the van overtaking his car and striking it from the right side while changing lanes.
Mr. Mills further testified that the damaged areas on the vehicles do not match, there being an unaccounted for ten centimetre height difference between the damage on the van and sedan. He found no paint transfers on either vehicle that match the other, and the van did not have a protruding part that could create the hole in the right front lower corner of the sedan's plastic bumper. Neither did the sedan's seat belts show loading marks from Mr. Mohamed and Mrs. Yusuf being thrown forward from the impact. On the basis of his examination of the vehicles, Mr. Mills concluded that the accident between the van and sedan did not occur.
The Applicants' representative was present during Mr. Mills' evidence, and had an opportunity to cross-examine him. He did not undermine Mr. Mills' credentials as an expert or his observations of the vehicles, challenge his analysis and conclusion that this accident did not occur or introduce contradictory evidence for the Applicants. Although given the opportunity, the Applicants have failed to meet their onus with respect to Guarantee's expert evidence.
Mr. Mills' analysis and conclusion is logical because it is consistent with the physical evidence, and I accept it. I find that the van did not strike Mr. Mohamed's sedan on April 12, 2003 on Lawrence Avenue East in Toronto. Thus, I find that Mr. Mohamed and Mrs. Yusuf were not involved in an accident on April 12, 2003, and therefore did not suffer injuries entitling them to statutory accident benefits under the Schedule.
EXPENSES:
The parties may provide me with their submissions about entitlement to and the amount of their expenses of this arbitration in accordance with the procedures and criteria in Rules 75 to 79 of the Dispute Resolution Practice Code and the Expense Regulation F within 30 days of this decision.
June 6, 2005
Fred Sampliner Arbitrator
Date
Neutral Citation: 2005 ONFSCDRS 80 FSCO A04-000020 and A04-000006
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
FAISAL MOHAMED and SAFIYA YUSUF 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. Mohamed's and Mrs. Yusuf's claims for statutory accident benefits under the Schedule in this arbitration are dismissed.
June 6, 2005
Fred Sampliner Arbitrator
Date