Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 13
FSCO A04-001797 and A04-001522
BETWEEN:
NASSIR HASSAN YUSUF and ISAMIL I. AHMED
Applicants
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Beth Allen
Heard: November 14 and 15, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Warren Milne for Mr. Yusuf and Mr. Ahmed Elizabeth Wilson for TD Home and Auto Insurance Company
Issues:
The Applicants, Mr. Nassir Hassan Yusuf and Mr. Isamil I. Ahmed, claim they were injured in a motor vehicle accident on January 2, 2003. They applied for and received statutory accident benefits from TD Home and Auto Insurance Company ("TD"), payable under the Schedule.1 TD terminated the Applicants' weekly income replacement benefits on October 15, 2003. The parties were unable to resolve their disputes through mediation, and Mr. Yusuf and Mr. Ahmed 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:
- Was Mr. Yusuf injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
- Was Mr. Ahmed injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
- Is TD entitled under section 47 of the Schedule to a repayment of benefits paid to Mr. Yusuf and Mr. Ahmed?
Result:
- Mr. Yusuf was not injured in an accident and he is precluded from proceeding to arbitration as defined in subsection 2(1) of the Schedule.
- Mr. Ahmed was not injured in an accident and he is precluded from proceeding to arbitration as defined in subsection 2(1) of the Schedule.
- TD is entitled to pursue a repayment of benefits paid to Mr. Yusuf and Mr. Ahmed.
EVIDENCE AND ANALYSIS:
Overview:
In order to avail themselves of benefits offered under the statutory accident benefit scheme, insured persons must first establish that they were involved in an accident within the meaning of the Schedule. Subsection 2(1) of the Schedule provides:
"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.
TD argues that Mr. Yusuf and Mr. Ahmed did not sustain impairments as a result of being involved in an accident and are accordingly precluded from proceeding to arbitration in respect of their accident benefit claims. Specifically, TD alleges that the damage to the vehicle in which the Applicants were passengers was not caused by the alleged accident on January 2, 2003. TD also alleges that the Applicants' various accounts of the accident are inconsistent with each other and with that of the driver of the vehicle in which they were passengers.
Mr. Yusuf and Mr. Ahmed contend that they were involved in an accident, and that they sustained injuries as a result of the accident. They submit that they are therefore entitled to proceed to arbitration with respect to their claims. Mr. Yusuf seeks to pursue his claims for income replacement benefits, medical benefits, expenses and interest and Mr. Ahmed seeks to pursue his claims for income replacement benefits, housekeeping expenses, the cost of an assessment, expenses and interest.
TD paid the Applicants' accident benefits and seeks repayment of all benefits paid to both Applicants.
Non-Attendance of Mr. Ahmed:
Mr. Ahmed did not attend the hearing. Mr. Yusuf advised that Mr. Ahmed had travelled to Somalia and had not returned in time for the hearing. Mr. Milne indicated that Mr. Ahmed had not notified him before the hearing that he was not going to attend. However, Mr. Milne stated that Mr. Ahmed had attended the pre-hearing discussion on September 30, 2005 and had advised Mr. Milne that he was travelling to Somalia. Mr. Milne indicated that after the pre-hearing discussion, Mr. Ahmed instructed him to contact witnesses in preparation for the hearing. It was Mr. Milne's view that the hearing should proceed without Mr. Ahmed because he was aware of the date of the hearing and Mr. Ahmed did not contact Mr. Milne to request an adjournment of the hearing to new dates.
Ms. Wilson argued that the hearing should not proceed without Mr. Ahmed because his credibility is at issue. She submitted that TD would be prejudiced by being denied the opportunity to cross-examine Mr. Ahmed at the hearing and on the written statements he made after the accident. Alternatively, Ms. Wilson asked, if the hearing proceeds without Mr. Ahmed, that I draw an adverse inference from his failure to attend.
I decided to proceed with the hearing in Mr. Ahmed's absence for the following reasons.
I find Mr. Ahmed had adequate notice of the dates set for the hearing. On August 15, 2005, on request of the Applicants, the hearing into the preliminary issue was adjourned from August 2005 to November 14 to 17, 2005, to allow Mr. Milne, their newly appointed counsel, to prepare for the hearing. A "Notice of Re-scheduled Hearing of Preliminary Issue", dated August 15, 2005, was sent to the parties and their counsel. I have no information that Mr. Ahmed did not receive this notice. I infer from this that he received the notice. The notice contains the following warning: "If you or your representative do not attend, the Arbitrator may dispose of the case in your absence and you will not be entitled to any further notice of arbitration proceedings." Further, the pre-hearing report dated October 18, 2005, restates the dates for the preliminary issue hearing. Mr. Ahmed was present at the pre-hearing on September 30, 2005 and there is no indication at that time that he objected to the hearing dates.
I find that Mr. Ahmed had sufficient notice of the hearing dates and adequate opportunity to advise his counsel and the Commission of his unavailability for the hearing. I also took into account that I have other sources of evidence to consider in arriving at a decision on the preliminary issue. I have the viva voce evidence of Mr. Yusuf and Mr. Ibrahim Ismail, the driver of the vehicle in which the Applicants were passengers at the time of the alleged accident; the accident reconstruction evidence called by TD; as well as various written statements and documentation prepared in relation to the accident. I also find that any prejudice to TD resulting from Mr. Ahmed's absence would be offset by the fact that TD would have the opportunity to cross-examine Mr. Yusuf and Mr. Ismail at the hearing.
The January 2, 2003 Incident:
The Applicants have the burden to prove they were involved in an accident as defined by subsection 2(1) of the Schedule. I find the Applicants did not accomplish this.
According to the Applicants and Mr. Ismail, the alleged accident occurred between 8:45 p.m. and 9:00 p.m. on the evening of January 2, 2003. Mr. Ismail was driving his friend's white 1990 Dodge Caravan van (the "Dodge") with his girlfriend, Naimo Mohamed, sitting in the front passenger's seat, Mr. Yusuf sitting in the back seat behind the driver, and Mr. Ahmed sitting behind Ms. Mohamed.
Mr. Yusuf and Mr. Ismail testified that it was dark and the roads were snowy and slippery on the night of the accident. They stated that just before the accident, the vehicle they were in was travelling southbound on Seacliff Boulevard in the curb lane approaching a stop sign at the intersection of Seacliff and Duncanwoods Drive. Mr. Ismail was proceeding to turn right on Duncanwoods to drive in a westbound direction. Mr. Yusuf and Mr. Ismail testified that a car travelling along Duncanwoods from the east, a white Ford Aerostar (the "Ford"), did not stop and struck the Dodge. The evidence of the driver of the Ford, in his Collision Centre Report which was filed into evidence, was that the right front and side of the Ford was struck by the Dodge. Mr. Yusuf’s and Mr. Ismail's oral evidence was that Mr. Ismail hit the brake but the Dodge slid into the Ford. They stated that on impact the Dodge spun around and came to rest at the northwest corner of Seacliff and Duncanwoods.
I find that the Applicants' and Mr. Ismail's accounts of the mechanics of the accident, and of certain events in the aftermath, contain significant inconsistencies. Mr. Yusuf’s oral evidence is inconsistent with that of Mr. Ismail. Mr. Yusuf’s oral evidence is inconsistent with his own written statement and the written statements of Mr. Ismail and Mr. Ahmed. The evidence of the three occupants of the Dodge is also inconsistent with the expert evidence of the accident reconstruction engineer retained by TD.
I found there was divergent evidence about the point of impact by the Ford on the Dodge. In oral evidence, Mr. Yusuf stated that the Ford struck the Dodge on the front corner of the driver's side of the vehicle. On cross-examination, TD's counsel confronted Mr. Yusuf with his written statement of February 19, 2003 where he states that the Ford hit the right front passenger's side of the Dodge. The Applicant, Mr. Ahmed, also indicated in his statement dated February 13, 2003, that the Ford hit the front passenger's side of the Dodge. However, because Mr. Ahmed did not attend the hearing, he could provide no assistance in clarifying this evidence. Mr. Ismail, the driver of the Dodge, also testified that the Ford hit the front driver's side of the Dodge. In answer to TD's counsel's questions on this discrepancy in the evidence, I find Mr. Yusuf was evasive. He first stated that the Ford hit the front of the Dodge and subsequently asserted that the Ford hit the front driver's side of the Dodge. I find Mr. Yusuf’s testimony on cross-examination did not assist but actually added to the confusion as to the point of impact of the Ford on the Dodge. I therefore did not find the Applicant to be a credible and reliable witness.
Mr. Yusuf also stated in testimony that the rear of the Dodge struck a pole at the northwest corner of Seacliff and Duncanwoods when it came to a rest. Mr. Ismail also testified that the Dodge hit a pole when it came to rest after impact. On cross-examination, TD's counsel pointed to Mr. Yusuf's February 19, 2003 written statement, where he stated that after impact the Dodge came to rest against the curb after hitting some mail boxes. Mr. Ahmed's written statement dated February 13, 2003, also stated that the Dodge hit mail boxes. Mr. Yusuf responded that he remembered everything at the time of the accident, but maybe he forgot to include the information about the pole in the statement. A photograph put into evidence reveals that there is a wooden pole and mail boxes at the corner in question. I find it possible that Mr. Yusuf forgot to mention the pole in his statement. However, I find, together with the other inconsistencies in the evidence, this discrepancy adds to concerns about the credibility of the Applicants' involvement in an accident.
In chief, Mr. Yusuf stated that after the accident, Mr. Ismail drove him home in the Dodge. On cross-examination, Mr. Yusuf first testified that the Dodge did not get towed away. TD's counsel then pointed out that Mr. Yusuf’s written statement noted, "Our car was towed away." The statement went on to say that his friend, Mustafa, took him home. Mr. Ismail, on the other hand, testified that Mr. Yusuf drove everyone to Mr. Yusuf’s apartment after the accident and that he (Mr. Ismail) did not know of anyone called Mustafa coming to the scene of the accident. In his written statement, Mr. Ahmed stated that he did not know if a tow truck came to the scene. Mr. Ahmed further indicated in that statement that he left the scene before the others and went straight home by bus; and that for safety reasons, he did not want to get back into the car with the others after the accident.
I find the inconsistencies in this area of the evidence make it impossible for me to determine the events that occurred shortly after the accident. I found Mr. Yusuf unable to explain these problems in the evidence, adding to the unreliability of the Applicants' claims to have been involved in an accident.
In chief, Mr. Yusuf stated that he went to the hospital for medical treatment after the accident. In his written statement, he did not mention going to the hospital after the accident, but stated that he went to his family doctor the third day after the accident. On cross-examination, TD's counsel showed Mr. Yusuf his Application for Accident Benefits dated January 21, 2003 where a check mark next to "No" in Part 3, indicates that Mr. Yusuf did not go to the hospital. In answer to this, Mr. Yusuf stated that he did go to the hospital after the accident, but he did not get much help. Among the medical documents before me, I have no record of Mr. Yusuf’s attendance at a hospital after the accident. Mr. Yusuf did not credibly explain this inconsistency in the evidence which I find contributes to the general untrustworthiness of his evidence.
I accept TD's submission that I should draw an adverse inference from Mr. Ahmed's failure to attend the hearing without notice. I find it reasonable to infer under the circumstances that Mr. Ahmed would not have been able to present evidence to assist with his claim that he was involved in an accident.
Accident Reconstruction Evidence:
I also considered the expert evidence of the accident reconstruction retained by TD in arriving at my decision.
Mr. Scott Walters, an industrial engineer and accident reconstruction specialist with Walters Forensic Engineering Inc., testified on behalf of TD. Mr. Walters has been engaged in this profession since 1993 and estimated that he had been involved in the reconstruction of approximately 500 motor vehicle accidents and has testified in the Ontario Superior Court of Justice, the Ontario Court of Justice and arbitration hearings at the Commission for both plaintiffs and the defence. The parties agreed, and I found, that Mr. Walters is an expert in the field of accident reconstruction. Mr. Walters prepared an engineering assessment report dated May 26, 2003 at the request of TD. In preparing the report, Mr. Walters reviewed:
- the Ford driver's Collision Centre Report
- damage photographs and damage estimates of the vehicles prepared by TD
- Collision Centre photographs of the vehicles
- witness statements of Mr. Yusuf and Mr. Ahmed
Mr. Walters also physically examined the vehicles and the accident scene on April 2, 2003.
It was Mr. Walters' opinion that the accident could not have happened as described by Mr. Yusuf and Mr. Ismail at the hearing. Mr. Walters also found that the damage he observed on the Dodge was inconsistent with other accounts of the accident that appeared in the written statements of the Applicants. He arrived at this conclusion for the following reasons:
Mr. Walters found a significant scratch on the right front bumper cover and the left front corner of the Dodge. However, he found that the damage in these areas of the Dodge was consistent with contact with an abrasive surface like concrete. Upon examination of the accident scene, Mr. Walters could find no concrete light standards, buildings or other features that could have caused the concrete particle impregnation found on the left and right front of the Dodge.
Mr. Walters also concluded that were the Ford travelling westbound and the Dodge making a right turn as reported, then it would be expected that it would have been the left front corner of the Dodge that would have contacted the right front corner and side of the Ford. Mr. Ford also observed that there would likely have been forward directed white paint transfers from the Ford visible on the Dodge. No such transfer was visible on examination. Mr. Walters found in fact that the damage to the left front corner of the Dodge indicated a rearward directed force likely as a result of contact with a concrete type object rather than a vehicle. He also pointed out that if the collision was of such force as to cause the Dodge to spin around and hit mailboxes, then it would be expected that significant rearward intrusions would result to the vehicles. Mr. Walters found no damage to either vehicle consistent with such significant force.
Mr. Walters also concluded that as a result of the momentum of the vehicles during the collision, as described by Mr. Yusuf and Mr. Ismail at the hearing, one would have expected the Dodge to have travelled to the southwest rather than to the northwest toward the mailboxes on the northwest corner of the intersection of Seacliff and Duncanwoods.
Mr. Walters also found transfers and damage on the Dodge and Ford that were unexplained by Mr. Yusuf’s and Mr. Ismail's oral accounts. There were, for instance, dark transfers on both vehicles at heights where no implement or component existed on the other vehicle that might have caused those transfers. Mr. Walter also found yellow paint transfers on the Dodge in the damaged areas but was unable to find any yellow object on the Ford or at the accident scene that might explain the source of that yellow paint.
Conclusion:
The internal inconsistencies in Mr. Yusuf's evidence, and the inconsistencies among his evidence and that of Mr. Ahmed and Mr. Ismail, I find, cast doubt on the credibility of the Applicants' evidence about the accident. Mr. Ahmed's failure to attend further contributed to weakening this evidence. These factors, combined with Mr. Walters' expert opinion that the accident could not have occurred as described, lead me to conclude that the Applicants have failed to discharge their burden to establish that they were involved in an accident on January 2, 2003 as a result of which they sustained injuries. For this reason, I find that the Applicants are precluded from proceeding to arbitration on their accident benefits claims.
REPAYMENT:
TD is entitled to pursue its claims against Mr. Yusuf and Mr. Ahmed under section 47 of the Schedule for a repayment of the benefits paid. I will continue to be seized of the matter.
EXPENSES:
The parties did not speak to the issue of expenses incurred in relation to the hearing into the preliminary issue. I encourage the parties to attempt to settle this matter, failing which I can be approached to assess expenses.
January 26, 2006
Beth Allen Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 13
FSCO A04-001797 and A04-001522
BETWEEN:
NASSIR HASSAN YUSUF and ISAMIL I. AHMED
Applicants
and
TD HOME AND AUTO 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. Yusuf is precluded from proceeding to arbitration.
- Mr. Ahmed is precluded from proceeding to arbitration.
- TD Home and Auto Insurance Company is entitled to pursue its claims against Mr. Yusuf and Mr. Ahmed for a repayment of benefits paid.
January 26, 2006
Beth Allen Arbitrator
Date