Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 204

FSCO A05-000491 and FSCO A05-000492

BETWEEN:

IRMA MELCHIORRE ON HER OWN BEHALF AND AS ADMINISTRATRIX FOR THE ESTATE OF ALBERTO MELCHIORRE

Applicants

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Richard Feldman

Heard:

August 14, 15 and 17 and October 5, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Amin Sachedina for the Applicants

Ian D. Kirby for Wawanesa Mutual Insurance Company

Introduction:

At approximately 8:38 a.m. on Sunday, December 1, 2002, Alberto Melchiorre, an 87-year-old pedestrian, fell to the ground near 2725 Jane Street in Toronto. He died on December 5, 2002.

Mr. Tommaso DeBenedictis was driving his van in the proximity of the location where Mr. Melchiorre struck the ground. Wawanesa Mutual Insurance Company ("Wawanesa") was the insurer of Mr. DeBenedictis.

In September 2003, the widow of Alberto Melchiorre, Irma Melchiorre, applied to Wawanesa for various benefits payable under the Schedule¹ on her own behalf and on behalf of the estate of her late husband. These claims were made on the basis that the use of operation by Mr. DeBenedictis of his van on the morning of December 1, 2002 caused Mr. Melchiorre to fall to the ground and sustain injuries that led to his death a few days later.

Wawanesa refused to pay the benefits claimed. Wawanesa takes the position that the operation by Mr. DeBenedictis of his van on December 1, 2002 did not directly cause any impairment to Mr. Melchiorre and that Mr. Melchiorre did not die as a result of an "accident" as defined in the Schedule. The parties were unable to resolve their disputes through mediation, and Irma Melchiorre commenced two applications for arbitration (one in her own name and one in the name of the estate of Alberto Melchiorre) at the Financial Services Commission of Ontario under the Insurance Act.²

The parties have agreed that the two applications ought to be joined as there are common questions of law and fact and I have so ordered.

Issues:

The issues in this hearing are:

With respect to the estate of Alberto Melchiorre

1. Are funeral benefits (in the amount of $6,000.00) payable by Wawanesa to the estate of Alberto Melchiorre pursuant to section 26 of the Schedule?

2. Is the estate of Alberto Melchiorre entitled to interest for the overdue payment of funeral benefits pursuant to section 46(2) of the Schedule?

3. Is Wawanesa liable to pay a special award pursuant to subsection 282(1) of the Insurance Act because it unreasonably withheld or delayed payments to the estate of Alberto Melchiorre?

With respect to Irma Melchiorre

1. Is Irma Melchiorre entitled to death benefits in the amount of $25,000.00, pursuant to section 25 of the Schedule?

2. Is Irma Melchiorre entitled to interest for the overdue payment of death benefits pursuant to section 46(2) of the Schedule?

3. Is Wawanesa liable to pay a special award pursuant to subsection 282(1) of the Insurance Act because it unreasonably withheld or delayed payments to Irma Melchiorre?

With respect to the expenses of this proceeding

1. Is Wawanesa liable to pay the Applicants' expenses in respect of the arbitration under section 282(11) of the Insurance Act?

2. Are the Applicants liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Note that the estate of Alberto Melchiorre also originally applied for an order declaring that it was entitled to receive a medical benefit for the cost of obtaining medical records from St. Michael's Hospital ($325.00) and from Humber River Hospital ($140.00), claimed pursuant to section 14 of the Schedule. Counsel for Wawanesa, however, conceded that if the Applicants were successful on their claims for death benefits and funeral expenses, Wawanesa would be liable to pay the amount of $465.00 as part of the Applicants' expenses of this application. As a result, the Applicants were content to deal with these issues as part of a claim for the legal expenses of this proceeding (under section 282(11) of the Insurance Act) and not as a separate claim under section 14 of the Schedule.

Result:

With respect to the estate of Alberto Melchiorre

1. Funeral benefits in the amount of $6,000.00 are payable by Wawanesa to the estate of Alberto Melchiorre pursuant to section 26 of the Schedule.

2. The estate of Alberto Melchiorre is entitled to interest for the overdue payment of funeral benefits, pursuant to section 46(2) of the Schedule.

3. Wawanesa is liable to pay a special award pursuant to subsection 282(1) of the Insurance Act because it unreasonably withheld or delayed payments to the estate of Alberto Melchiorre. The decision on the amount of the special award is deferred to allow the parties an opportunity to make submissions with respect thereto.

With respect to Irma Melchiorre

1. Irma Melchiorre is entitled to death benefits in the amount of $25,000.00, pursuant to section 25 of the Schedule.

2. Irma Melchiorre is entitled to interest for the overdue payment of death benefits, pursuant to section 46(2) of the Schedule.

3. Wawanesa is liable to pay a special award pursuant to subsection 282(1) of the Insurance Act because it unreasonably withheld or delayed payments to Irma Melchiorre. The decision on the amount of the special award is deferred to allow the parties an opportunity to make submissions with respect thereto.

With respect to the expenses of this proceeding

1. The decision on expenses is deferred at the request of the parties.

EVIDENCE AND ANALYSIS:

Background

There is no question that Mr. Melchiorre fell and struck the ground on Jane Street in Toronto on the morning of December 1, 2002. There is also no question that Mr. Tomasso DeBenedictis was driving his blue 1991 Dodge Caravan in the vicinity at that time. Mr. DeBenedictis was exiting a strip mall located on the east side of Jane Street and was in the process of entering Jane Street with the intention and turning left and proceeding south on Jane Street.

Police, paramedics and an ambulance attended at the scene. Mr. Melchiorre was taken to Humber River Regional Hospital and was then discharged a few hours later. His family was concerned about his behaviour and brought him back to the hospital early the next morning. On December 2, 2002, a CT scan was taken of Mr. Melchiorre's head for the first time. It revealed that Mr. Melchiorre had suffered a severe closed head injury with left cerebellar and bilateral frontal hemorrhagic contusions. He was then transferred by air ambulance to St. Michael's Hospital. It was found that he was not a good candidate for surgical intervention and, on December 5, 2002, Mr. Melchiorre died from his injuries and complications arising therefrom. Dr. J. Timothy Feltis, the pathologist who conducted the postmortem examination, concluded that the cause of death was severe blunt force craniocerebral trauma, complicated by acute bilateral bronchopneumonia (which, Dr. Feltis testified, resulted from the closed-head injury).

Arguments

The Applicants contend that the only reasonable conclusion that can be drawn from all of the available information is that, on the morning of December 1, 2002, the van driven by Mr. DeBenedictis came in contact with Mr. Melchiorre, that it caused him to fall backwards and strike his head on the ground and to suffer a severe closed head injury that was not discovered until the following morning and that resulted in Mr. Melchiorre's death a few days later.

Wawanesa takes the position that, while it is possible that the Applicants' theory is correct, the Applicants have failed to meet their onus of proving, on a balance of probabilities, that the use or operation by Mr. DeBenedictis of his van on December 1, 2002 did in fact cause the death of Mr. Melchiorre. Wawanesa filed only two cases for me to consider. Both cases stand for the proposition that the burden of proof in accident benefit cases resides with the insured.³ These cases also stand for the proposition that, while the legal onus always remains on the insured, "the sufficiency of the proof depends on what is reasonable in the circumstances" and that "the appropriate approach is a flexible, fact-based one."⁴ Finally, the burden of proof only becomes relevant where the arbitrator's analysis of the preponderance of the evidence does not dictate a result.⁵ I have kept these principles in mind while analysing the facts presented in this case. The two essential questions that I must answer in order to resolve the issues raised in this application are as follows:

1. Have the Applicants proven, on a balance of probabilities, that the use or operation of the van in question directly caused Mr. Melchiorre to fall down on Jane Street on December 1, 2002?

2. Have the Applicants proven, on a balance of probabilities, that the injuries sustained by Mr. Melchiorre when he fell down at approximately 8:38 a.m. on December 1, 2002 resulted in his death?

If the answer to both of these questions is in the affirmative, then the Applicants will have met their onus of proving that the use or operation of the motor vehicle in question resulted in the death of Mr. Melchiorre.

I will deal with the second question first because, in many respects, it is the easier question to answer.

Did the fall on December 1, 2002 cause Mr. Melchiorre's death?

To answer this question, I will consider the following: (a) statements made by Mr. DeBenedictis; (b) evidence from the ambulance attendant, police officers and Mr. Melchiorre's son concerning their observations of Mr. Melchiorre's condition around the time of and immediately following the incident in question; and (c) evidence from the postmortem examination of Mr. Melchiorre.

(a) Statements of Mr. DeBenedictis

Mr. DeBenedictis testified at this hearing, with the assistance of an Italian interpreter. I generally did not find the testimony of Mr. DeBenedictis to be credible. At best, he no longer has a reliable memory of the important details of the events in question; at worst, he is deliberately changing the story in a manner that he believes will benefit him. Since, by his own testimony, he does not currently recall details concerning the incident, I find that his statements made to the police around the time of the accident are more likely to be accurate than his testimony before me.

Immediately following the accident, Mr. DeBenedictis made the following statement to the police:

"I come from the parking lot and I have to make a left turn. When I got to the end of the driveway, not yet on the road, I see the guy fall backwards, face up. He was in the curb lane. I stop and in same time comes another guy and we try to help."⁶

In subsequent statements to the police and others, Mr. DeBenedictis tried to assert that he came upon Mr. Melchiorre already lying on the ground or that he could not remember whether or not he saw Mr. Melchiorre fall. I find that the statement he made to police within minutes of the incident to be more reliable than statements he made months or years later. I also do not accept the suggestion by counsel for Wawanesa that inconsistent statements by Mr. DeBenedictis can be attributed solely to the fact that English is not his first language. According to the testimony of Police Constable Grisel Wells (who initially interviewed Mr. DeBenedictis at the scene on December 1, 2002), an Italian-speaking police officer (P.C. Milan) was also at the scene and would have interviewed Mr. DeBenedictis in that language had Mr. DeBenedictis been unable to communicate effectively in English.

(b) Evidence from the postmortem examination

Dr. Feltis, the pathologist who conducted the postmortem examination of Mr. Melchiorre, concluded in his report and confirmed in his testimony before me that the cause of death in this case was severe blunt force craniocerebral trauma, complicated by acute bilateral bronchopneumonia. Dr. Feltis testified that he could tell from his examination of the body, that the pneumonia developed after (and mostly likely as a result of) the trauma to Mr. Melchiorre's brain.

Wawanesa raised some question as to whether there was evidence of blows to both the back and the front of the head of Mr. Melchiorre (which might suggest that Mr. Melchiorre fell forwards or that he had suffered multiple falls). On this point, Dr. Feltis concluded from his examination of Mr. Melchiorre that Mr. Melchiorre had suffered only one severe blunt force trauma and that was to the back of his head.

According to Dr. Feltis, the blow to the back of the head was evidenced by a contusion to the back of Mr. Melchiorre's head, around the site of the injury to the back of his brain. Although the most severe injury sustained by Mr. Melchiorre was to the front of his brain, this was consistent with a blow to the back of the head in a typical coup - contracoup type of injury. This means that the acceleration of Mr. Melchiorre's head as he fell backwards was suddenly stopped when the back of his head hit the ground. This would cause a contusion to the back of the head and some damage to the back of his brain but a much more significant injury to the front of the brain as the brain rebounded forward within the skull. Although there was a small scrape to the front of Mr. Melchiorre's head, there was no contusion to the front of his head; Dr. Feltis stated that this scrape was superficial and was not consistent with a blow to the front of the head.

Dr. Feltis' conclusion that Mr. Melchiorre fell backwards and struck his head was supported by the original statement given by Mr. DeBenedictis to the police and by statements given to the police by an independent witness, Mr. Seng "Jason" Heng. It was also supported by the physical evidence such as scrapes to the back of Mr. Melchiorre's clothing and bruises and scrapes to his back and buttocks.

(c) Behaviour of Mr. Melchiorre

The ambulance attendant, Andrea Gastaldini, testified that when he examined Mr. Melchiorre, he appeared confused and was complaining of pain in his head but there was no apparent trauma to the head and no loss of consciousness (as measured by the Glasgow Coma Scale). Dr. Feltis testified that it would not be unusual for symptoms of this type of closed head injury not to show up for some time, especially in an elderly person where there may be more room between the brain and the skull in which blood can collect.

At the scene of the incident, Police Constable Wells attempted to speak to Mr. Melchiorre. According to P.C. Wells, Mr. Melchiorre was not speaking and seemed confused. Mr. Gastaldini arrived at the scene within approximately two minutes (i.e. by 8:40 a.m.). He testified that he did not find any bumps or bruises during his examination of Mr. Melchiorre but could not say how long it takes after a trauma for bruises to appear.⁷ He noted that Mr. Melchiorre appeared to be confused and unable to get up. He also noted that Mr. Melchiorre was not responding to questions (posed by Mr. Gastaldini in both English and Italian) and could not even provide his full name or tell Mr. Gastaldini how the accident occurred. Mr. Melchiorre was made comfortable and transported by ambulance to Humber River Regional Hospital.

Mr. Melchiorre arrived at the hospital at around 9:25 a.m. According to the hospital records, he was still very confused, was having difficulty remembering things and was complaining of a headache and dizziness. The hospital appears to have done a blood test, taken an EKG and then discharged Mr. Melchiorre with some aspirin later that morning.

According to Gianni Melchiorre, the son of Alberto Melchiorre, his father was generally both physically and mentally active prior to this incident. He worked in the construction industry until the age of 72. He was still a strong man. It was his custom to walk each morning for two to three hours. On December 1, 2002, Mr. Melchiorre was out for his usual walk and was expected by his wife to return home around 9:00 a.m. to watch the Sunday morning soccer game on television. When he did not return at his usual time, she called Gianni. Shortly thereafter, she contacted the police to file a missing person report.⁸ Ultimately, it was because of that report that the police were able to identify Mr. Melchiorre while he was still at the hospital (since he had been unable to identify himself).

Gianni Melchiorre attended at the hospital around the time his father was being discharged. He found it unusual that his father did not react to his presence or communicate with him in any way. At his father's apartment building, Gianni Melchiorre assisted in getting his father from the building entrance to the apartment as his father was unable to walk without assistance. According to the testimony of Gianni Melchiorre, his father's balance was off. Gianni thought to pass some time with his father by playing cards with him. In the past, his father had always bested Gianni but, on this occasion, Gianni was shocked by the poor level of his father's play. He said that on this occasion, his father "played like a child". Alberto Melchiorre kept placing his hand over his own lower back and trying to massage that area as if it was bothering him. Gianni was concerned about his father's behaviour and decided to stay the night. His father's behaviour became more erratic and, in the morning, the family decided that they had to get him back to the hospital.

They called an ambulance and Mr. Melchiorre was re-admitted to Humber River Regional Hospital at around 9:00 a.m. on Monday, December 2, 2002. The emergency records note that he was agitated, non-responsive to verbal commands, non-cooperative, feverish, incontinent and demonstrated a decreased level of consciousness. A CT scan of his head was conducted. It revealed that Mr. Melchiorre had suffered a severe closed head injury with left cerebellar and bilateral frontal hemorrhagic contusions. He was then transferred on December 2, 2002 by air ambulance to St. Michael's Hospital at approximately 5:20 p.m. It was found that he was not a good candidate for surgical intervention and, on December 5, 2002, Mr. Melchiorre died from his injuries and complications arising therefrom.

(d) Insurer's Arguments

Wawanesa has made the following arguments with respect to the cause of death:

1. Not all of the injuries to Mr. Melchiorre's body can be explained by a single fall;

2. The evidence is not conclusive that it was a blow to the back of Mr. Melchiorre's head that caused his death;

3. Even if it is accepted that Mr. Melchiorre ultimately died as a result of a blow to the back of his head, the Applicants have nevertheless failed to prove that this blow occurred when he fell on Jane Street at approximately 8:38 a.m. on December 1, 2002.

On cross-examination, Dr. Feltis agreed that not all of the injuries noted in his postmortem examination can be explained by a single fall. For instance, some of the damage can be attributed to hospital procedures (such as the multiple ecchymoses⁹ on his forearms that were most likely caused by intravenous needles). Other small scrapes and bruises to the hands were found to be non-specific and of no assistance in this case in determining the cause of death. The small linear abrasions to Mr. Melchiorre's right temple were found to be superficial. The fact that Dr. Feltis did not know exactly how or when Mr. Melchiorre received this small scrape did not change his opinion as to the cause of death. Mr. Melchiorre also had contusions to both knees. Although such an injury could be obtained by falling forward onto a smooth surface, Dr. Feltis concluded that given the position of these bruises, they were more likely caused by contact between the knees of Mr. Melchiorre and the bumper of a motor vehicle than by impact with the pavement. According to Dr. Feltis, had Mr. Melchiorre's knees hit the pavement, he would expect to see abrasions as well as contusions and there were no abrasions on the knees of Mr. Melchiorre.

Dr. Juan Bilbao, a neuropathologist, examined Mr. Melchiorre's brain once it had been removed from his body. He found contusions on both frontal poles, the left and right temporal lobes and the cerebellum. Since he did not examine the rest of the body, he could not determine how these contusions occurred or determine the cause of death. He testified, however, that the contusions were consistent with a coup - contracoup type of injury.

In the opinion of Dr. Feltis, the injuries to Mr. Melchiorre's brain were caused by blunt force trauma to the back of his head in a coup - contracoup scenario, most likely through the mechanism of falling backwards and hitting the back of his head on the ground. It is possible, suggests Wawanesa, that Mr. Melchiorre may have fallen and hit his head earlier on December 1, 2002 or at some time between 8:38 a.m. on December 1 and 9:00 a.m. on December 2, 2002. Although it is possible that Mr. Melchiorre suffered a fall or falls either before or after the incident in question, there is no persuasive evidence of any falls occurring other than the one on Jane Street at around 8:38 a.m. on December 1, 2002. The only physical evidence of blunt force trauma to Mr. Melchiorre's head is to the back of his head.

Counsel for Wawanesa seemed to imply, through his questions, that perhaps it was the pneumonia that caused Mr. Melchiorre to wander around aimlessly and fall down and that it was the pneumonia that was really the cause of his death. Dr. Feltis' uncontroverted opinion after his postmortem examination of Mr. Melchiorre was that the brain injury preceded, and likely resulted in, the pneumonia.

(e) Conclusion

I am satisfied, based upon the evidence presented, that the Applicants have proven on a balance of probabilities that Mr. Melchiorre fell backwards and struck the back of his head on the pavement on the morning of December 1, 2002 at approximately 8:38 a.m., thereby suffering a severe closed head injury that, together with the pneumonia that resulted from the brain injury, caused his death on December 5, 2002.

Did the van cause Mr. Melchiorre to fall?

There were only three persons (of whose identities we are aware) who witnessed the incident on the morning of December 1, 2002: Mr. Melchiorre, Mr. DeBenedictis and Mr. Seng "Jason" Heng (an independent witness). Unfortunately, Mr. Melchiorre passed away on December 5, 2002 and, because of his injuries, he was never able to tell anyone what occurred. Mr. DeBenedictis testified before me that he had nothing to do with Mr. Melchiorre's fall and was simply being a good citizen who stopped his vehicle to help a pedestrian he found lying on the road. For reasons previously given (upon which I will further elaborate), I generally do not find Mr. DeBenedictis' testimony before me to be reliable. Mr. Heng, I'm told by counsel for the Applicants, was served with a summons but failed to attend before me to testify. I am therefore left with his various statements to the police. Counsel for Wawanesa did not object to my accepting such evidence but urged that I give it little or no weight since Mr. Heng's statements could not be tested through cross-examination. Other than statements from the two surviving witnesses, there exists the following: physical evidence (such as the vehicle in question and the body of Mr. Melchiorre); the records of the police, ambulance attendants, hospitals and coroner's office; and the expert opinions of the police officers and of the pathologist.

Wawanesa argues that in the absence of reliable eyewitness accounts or clear physical evidence demonstrating that there was an impact of the van with Mr. Melchiorre, the Applicants have failed to meet their onus of proving, on a balance of probabilities, that the use or operation by Mr. DeBenedictis of his van directly caused Mr. Melchiorre to fall down (and thereby suffer an impairment that caused his death).

The statements of Mr. Heng, the physical evidence, the opinion of the police experts and the opinion of the pathologist all lead one inexorably to the conclusion that the operation of the van did directly cause Mr. Melchiorre to fall on the morning of December 1, 2002. In fact, the only evidence to the contrary consists of statements by the driver alleged to have struck Mr. Melchiorre and even his early statements to the police and his actions on the day of the accident are equivocal. I shall now examine all of this evidence in more detail.

(a) Statements of Mr. Heng

Mr. Heng was driving north along Jane Street towards the location where Mr. Melchiorre struck the ground. He was in a good position to see any interaction between the van and Mr. Melchiorre. After witnessing the incident, Mr. Heng stopped his vehicle, got out and approached Mr. Melchiorre to see if he could help. According to his statements, Mr. Heng also stopped because he was concerned that the driver of the van (Mr. DeBenedictis) might try to drive away and avoid responsibility for the accident. Mr. Heng remained in attendance until the police arrived.

Mr. Heng was interviewed by the police at the scene of the incident on December 1, 2002 and then again on January 18, 2003. Notes were made by the police of the questions that were asked of Mr. Heng and the answers he provided and those notes have been entered into evidence. The second interview was also taped and a copy of that recording has also been entered into evidence.

Mr. Heng told the police on December 1, 2002 that he saw Mr. Melchiorre (the "old man") touching the front of Mr. DeBenedictis' van (the "van") and then the van backed up and Mr. Melchiorre fell down. He did not see the van "hit" Mr. Melchiorre or what led up to them being in contact. In a further police interview on January 18, 2003, Mr. Heng confirmed this earlier statement and elaborated that Mr. Melchiorre's arms were outstretched towards and were touching the front of the van before the van backed up and Mr. Melchiorre fell to the ground. He also stated that, at the point where the van and the man came in contact, the van was partially blocking the northbound curb lane of Jane Street, but the van then pulled back into the plaza driveway. English is clearly not Mr. Heng's first language and some of his statements may initially give the impression of being self-contradictory. When his statements are carefully considered in their entirety and in the context of the phrasing of the questions asked, however, I find that Mr. Heng was consistent on the most important points. I also find that many of Mr. Heng's statements were corroborated by the admissions and conduct of Mr. DeBenedictis and by the physical evidence.

(b) Statements of Mr. DeBenedictis

The statements and actions of Mr. DeBenedictis suggest that even he is uncertain whether or not his vehicle came into contact with Mr. Melchiorre or came close enough to him to have played a part in causing him to fall down.

Mr. DeBenedictis was interviewed by the police at the scene of the incident on December 1, 2002 and then again on February 4, 2003. Notes were made by the police of the questions that were asked of Mr. DeBenedictis and the answers he provided and those notes have been entered into evidence. The second interview was also taped and a copy of that recording has also been entered into evidence.

Initially, on the day of the incident, Mr. DeBenedictis confirmed that, while in the process of driving his van out of the mall, he had seen Mr. Melchiorre walking along Jane Street and had witnessed him fall backwards and land face up in the northbound curb lane of Jane Street. To the extent that Mr. DeBenedictis was willing to admit that he saw Mr. Melchiorre fall backwards in the vicinity of the van and as the van was exiting the mall's parking lot, this confirmed at least part of the account given by Mr. Heng.

Mr. DeBenedictis initially denied that his van entered Jane Street or that he had backed the van up in order to pull back into the plaza driveway. When he was interviewed again by the police on February 4, 2003, he admitted that his van protruded into the northbound curb lane of Jane Street and that he had to back the van up to pull back into the plaza driveway. Later statements made under oath by Mr. DeBenedictis place the front of his van two or more feet into Jane Street. Clearly, based upon various statements from Mr. DeBenedictis, the van protruded sufficiently into Jane Street that he felt he had to back it up so as not to block northbound traffic. To this extent, it appears that Mr. Heng's statement was again reliable: the van did enter the northbound curb lane of Jane Street and it did back up at some point after coming near Mr. Melchiorre. Mr. DeBenedictis also confirmed that he saw Mr. Melchiorre in front of his vehicle. The question then becomes, "How close did the front of the van come to Mr. Melchiorre?"

At the end of the February 4, 2003 interview, Mr. DeBenedictis was asked by Detective Constable Gordon Taylor, "Do you think you hit that man?" His answer was, "I can't tell you 'no', I can't tell you 'yes'. If I say 'no', maybe I make a mistake. I don't know."

This suggests to me that Mr. DeBenedictis believed that it was possible that his van came close enough to Mr. Melchiorre that it could have made contact with Mr. Melchiorre and this contradicts his later statements that suggest he merely discovered Mr. Melchiorre lying on the ground a considerable distance from his vehicle. His doubts in this regard are further illustrated by the fact that on the day of the incident, he took his son Dario back to the scene to "see if what they said was right or if what I said was right." A driver who merely discovers a fallen pedestrian lying on the ground some distance from his vehicle ought to be more certain that he played no part in the predicament of the pedestrian. It therefore appears to me that, notwithstanding his protestations to the contrary when he testified before me, at the time when the details were still clear in his mind, Mr. DeBenedictis was uncertain whether or not his vehicle came into contact with Mr. Melchiorre or came close enough to him to have played a part in causing him to fall down.

(c) Physical evidence of contact

The forensic evidence disclosed bruises to the front of both of Mr. Melchiorre's knees. From the colour of these contusions, Dr. Feltis concluded that they were caused three to five days prior to the date of death (i.e. they were consistent with the date of the incident on Jane Street). Dr. Feltis concluded that, since there were no abrasions on the knees, these bruises were likely caused by contact with the bumper of the van on December 1, 2002 rather than contact with the pavement. In his experience, the first contact point between a pedestrian and a vehicle is usually the bumper and the bruises to the knees were consistent in height above the ground to have been caused by a typical bumper of a vehicle moving slowly. Being struck by a vehicle at low speed while facing the vehicle would also be consistent with all of the evidence that suggests that Mr. Melchiorre fell backwards.

The police motor vehicle accident report indicates that Mr. Melchiorre was walking southbound along Jane Street at the time the van "came into contact" with him "knocking him to [the] ground". There is no indication as to the source of the information concerning the direction in which Mr. Melchiorre was walking. P. C. Wells was not asked about this at the hearing. Counsel for Wawanesa has suggested that if Mr. Melchiorre was walking southbound, one would expect to find bruises to the side of his knee (primarily to his left knee which would be the one closest to the vehicle) and that, since the bruises were to the front of both knees, this raises doubts as to how those bruises were caused. Without additional information, I am not prepared to make any conclusions as to the direction in which Mr. Melchiorre was walking.

One might expect that there would be some physical evidence left on the van if the van had come in contact with Mr. Melchiorre. To a large extent, it depends upon the speed with which the van was travelling and whether there was any snow or dirt on the front of the van immediately preceding contact.

Mr. DeBenedictis stated that he was very slowly proceeding out of the mall, looking to turn south (left) onto Jane Street. I accept that his van was travelling very slowly at the relevant time.

P.C. Milan noted a "clean spot" on the passenger side of the front bumper. Mr. Heng stated that there was also a handprint left by Mr. Melchiorre in the snow stuck to the front of the van but that Mr. DeBenedictis cleared off most of the snow from the front of his van before the police arrived. Mr. DeBenedictis denied this. Since this statement is uncorroborated, I do not give it as much weight as other statements by Mr. Heng.

The physical evidence is, therefore, suggestive of contact between the van and Mr. Melchiorre, but it is far from conclusive.

(d) Opinion of police experts

On December 1, 2002, the police investigation was fairly cursory because it was believed at that time that the injuries sustained by Mr. Melchiorre were minor. Nevertheless, P.C. Wells testified that based upon her observations at the scene and the statements taken from Mr. Heng and Mr. DeBenedictis, she concluded that the van had made contact with Mr. Melchiorre and that this contact had caused him to fall.

After Mr. Melchiorre's death, the matter was referred to Traffic Services for a more thorough investigation. Traffic Services deals with major collisions, accidents involving fatalities and high-profile cases involving the media. Detective Constable Taylor was the officer in charge of this new investigation. He has 29 years experience on the police force and has been working in Traffic Services since 1996.

Detective Constable Taylor testified that he reviewed the investigating officers' notes and other documents in the file, interviewed Mr. DeBenedictis, Mr. Heng and the family of Mr. Melchiorre. He also instructed Detective Constable Mike George (a police expert in accident reconstruction) to view the van, attend Mr. Melchiorre's autopsy and review all physical evidence available and to provide an opinion as to the nature of the incident on December 1, 2002.

Detective Constable George has over 30 years experience on the police force, of which more than 19 years have been spent in Traffic Services. He has been acting as a collision reconstructionist since 1990. It is his job to attempt to reconstruct collisions, based solely upon the physical evidence (or factual information that he knows to be true and supported by physical evidence).

Detective Constable George also testified at the hearing. In his report to Detective Taylor, Detective George concluded that "there was insufficient information to draw a conclusion about the collision/fall." He testified that, based solely on the physical evidence or factual evidence that he knows to be true and to be supported by physical evidence, he could not state beyond a reasonable doubt that Mr. Melchiorre's fall was caused by the van in question. He went on to testify that, in his opinion, there probably had been a low-speed impact between the van and Mr. Melchiorre. In his opinion, the physical evidence was consistent with a typical wrap-around, low-speed impact. For the purposes of his report, however, there was just too little physical evidence by the time of his investigation to justify laying criminal charges as there was no reasonable prospect of obtaining a conviction in these circumstances. He conceded that the physical evidence was equivocal and would, by itself, be equally consistent with a fall or falls that were not the result of a collision with a motor vehicle.

Detective Constable Taylor testified that he was ultimately responsible for preparing the collision report on behalf of Traffic Services. He spoke to Detective Constable George and took into consideration his analysis of the physical evidence but Detective Constable Taylor also had available to him witness statements and other records (such as the notes of investigating officers) not available to Detective Constable George. He considered all of the available evidence in this case including the physical evidence and statements given to the police. He had the opportunity to view the van and measure the height of its front bumper and found that it was consistent with the height of the bruises to the knees of Mr. Melchiorre. He also took into account the opinion of Dr. Feltis. Ultimately, he concluded that there had been contact between the van and Mr. Melchiorre but that this contact may have been very minor in nature, causing Mr. Melchiorre to lose his balance and fall backwards. Detective Constable Taylor stated on cross-examination that it is also possible that the motion of the vehicle may have startled Mr. Melchiorre and caused him to fall even if there had been no actual contact but that, in his opinion, there likely had been some minor contact. The police decided not to lay charges against Mr. DeBenedictis in the circumstances because they did not believe there was sufficient evidence to obtain a conviction.

The police investigation focussed on whether or not an offence had been committed and whether or not this could be proven beyond a reasonable doubt. In order to rule in favour of the Applicants in this case, however, I need only find, on a balance of probabilities, that Mr. Melchiorre fell and suffered the fatal closed head injury as a direct result of Mr. DeBenedictis 'use or operation of the van.

(e) Conclusion

The physical evidence and the statements of Mr. Heng and Mr. DeBenedictis (at least his original statement) confirm that the van came very close to or was touching Mr. Melchiorre at the time Mr. Melchiorre fell backwards and hit his head. The police experts and the pathologist both came to the conclusion that there had been light contact between the van and Mr. Melchiorre and that, as a result, he fell to the ground.

I find that the preponderance of evidence in this case proves, on a balance of probabilities, that the van in question caused Mr. Melchiorre to fall on the morning of December 1, 2002. I have already explained my conclusion that this fall and the resultant blow to the back of the head of Mr. Melchiorre were ultimately the cause of his death.

CONCLUSION:

The Applicants have proven that Mr. Melchiorre died as a result of an "accident" as that term is defined in the Schedule and that the operation of the van by Mr. DeBenedictis directly caused Mr. Melchiorre to fall to the ground and hit his head, thereby suffering an injury that led to the death of Mr. Melchiorre.

Wawanesa is therefore liable to pay Irma Melchiorre a death benefit in the amount of $25,000 plus interest thereon in accordance with s. 46(2) of the Schedule.

The actual funeral expenses (including the cemetery expenses) incurred by Irma Melchiorre on behalf of the estate of Alberto Melchiorre exceeded $14,000 but the maximum amount that can be awarded in this case (and the amount being claimed) is $6,000. Wawanesa is liable to pay the estate of Alberto Melchiorre funeral expenses in the amount of $6,000 plus interest thereon in accordance with s. 46(2) of the Schedule.

SPECIAL AWARD:

(a) Introduction

Pursuant to s. 282(10) of the Insurance Act, an arbitrator shall award a lump sum of up to 50 per cent of the amount to which the person is entitled (together with interest) if the arbitrator finds that the insurer has "unreasonably withheld or delayed payments". The Applicants have requested a special award in this case. A special award is not granted merely because the insurer incorrectly interpreted or failed to comply with a provision of the Schedule; if that were the case, a special award would be granted to every successful applicant. An insurer can come to the wrong conclusion without having acted unreasonably. To merit the granting of a special award, there must be something more - unreasonable conduct on the part of the insurer.

A special award is not comparable to an award of exemplary or punitive damages.¹⁰ Exemplary or punitive damages are awarded by courts in the case of wrongdoing or breach of contract, where an individual has acted deliberately or in bad faith, so as to injure another. A special award is payable under the Insurance Act when an arbitrator finds than an insurer has acted unreasonably in withholding or delaying the payment of an accident benefit. While it is not necessary to find wilful or deliberate misconduct or bad faith in order to grant a special award, evidence of misconduct or lack of good faith on the part of the insurer is relevant, however, to the assessment of the appropriate amount of a special award.¹¹

It is now well settled law that an insurer owes a duty of good faith towards an insured person. In the case of accident benefit claims, an insured person is not necessarily the insurer's client. By the definition contained in section 2 of the Schedule, an '"Insured person" includes (in respect of accident in Ontario) a person who is involved in an accident involving the insured automobile. Thus, an insurer owes a duty of good faith to any insured person who makes a claim for accident benefits.

This duty of good faith includes a duty to treat all insured persons in a fair manner. For example (and this is not meant to represent an exhaustive list), this duty requires an insurer to:

1. Conduct a reasonable investigation of information presented to it;¹²

2. Approach the claim with an "open mind" and assess it fairly;¹³ and

3. Be aware of the current state of the law (i.e., understand and apply the law correctly to the facts of the particular case).¹⁴

In my view, this duty to act in a reasonable and fair manner in responding to a claim for accident benefits places a responsibility upon an insurer to (amongst other things):

• Understand the legal "tests" or "criteria" that apply in the particular case so that the insurer can ask the right questions and identify the information it requires in order to properly assess the claim;

• Approach the claim with an open mind, treating the insured person in a fair manner and not as a potential adversary;

• Carefully consider all of the available information, giving appropriate weight to that information in a fair and even-handed manner;

• identify what additional information may exist that would assist in assessing the claim and notify the insured of any additional information the insurer reasonably requires to assess the claim;

• ensure that the person (or persons) responsible for assessing the claim for accident benefits make their own decision, free from undue influence by others who may not owe the same duty of care to the insured; and

• reassess the validity of the claim as new information is received.

(b) Facts

The evidence concerning the conduct of Wawanesa in handling this claim for accident benefits came from the testimony of Ms. Carmela Pontieri, who was the adjuster at all relevant times on this file. Henceforth, I shall refer to her as "the adjuster".

Wawanesa received the Applications for Accident Benefits on September 10, 2003. According to this Application, on December 1, 2002, while operating his van, Tommaso DeBenedictis struck a pedestrian, Alberto Melchiorre, who was thrown to the ground and then died of his injuries on December 5, 2002.

On September 19, 2003, the adjuster spoke on the telephone with first the daughter (Ada) and then the son (Dario) of Mr. DeBenedictis concerning the accident and filed a request for a copy of the police accident report. The adjuster testified that she is not sure whether or not she was aware at the time of those telephone conversations that neither Ada nor Dario had first-hand knowledge concerning the incident. Tommaso DeBenedictis may have been in the background providing information to his daughter during the initial telephone conversation with the adjuster¹⁵, but at no time prior to receiving this Application for Arbitration did Wawanesa question Tommaso DeBenedictis. The adjuster stated that the reason she did not speak directly with Mr. DeBenedictis is because a note from the insurance broker indicated that Ada was the contact person and because the adjuster had been told that the first language of Mr. DeBenedictis was Italian.

Amongst other information, the adjuster was advised of the following facts by the children of Mr. DeBenedictis:¹⁶

1. Wawanesa's "insured" (i.e., Mr. DeBenedictis) was not charged with an offence;

2. There was no damage to the vehicle;

3. There was an independent witness to the incident who was not sure whether or not the "insured" struck the "third party" (Mr. Melchiorre);

4. Mr. DeBenedictis claimed that he did not strike the pedestrian since he did not feel any impact and the pedestrian was already lying on the ground;

5. The "third party" was attended at the scene by paramedics, taken to a hospital, then released and he died four days later;

6. The police took a statement from Mr. DeBenedictis a few months after the incident and even recorded it;

7. There should be lots of reports with the police.

On September 22, 2003, the adjuster issued an Explanation of Benefits Payable form indicating that Wawanesa was investigating the claim and would determine if a benefit was payable once the investigation was completed. Wawanesa enclosed authorization forms which it required to be signed in order to obtain hospital records and other medical information.

According to the adjuster, on or about November 11, 2003, Wawanesa received a letter from counsel for the Applicants insisting upon a decision and Wawanesa was obliged to respond within 30 days.¹⁷ From the adjuster's notes (Exhibit 9) and from her testimony, it is unclear what steps, if any, Wawanesa took to actively investigate this matter between September 19, 2003 and December 5, 2003. Wawanesa did not interview Tommaso DeBenedictis, Mr. Heng, members of the family of Mr. Melchiorre, any of the ambulance attendants or any of the police officers involved. At this time, Wawensa did not have in its possession any hospital, ambulance or other medical records or any police records other than a copy of the accident report (one page only). That accident report stated that the van driven by Mr. DeBenedictis came into contact with Mr. Melchiorre, knocking him to the ground. Wawanesa did not at that time obtain the rest of the police records which included investigative notes, photographs and statements taken from Mr. DeBenedictis and from Mr. Heng. On or about December 5, 2003, before issuing her decision on these claims for accident benefits, the adjuster consulted with Kevin Jones, the supervisor of the bodily injury ("B.I.") unit within Wawanesa. According to the adjuster, Wawanesa's B.I. unit handles tort claims arising (or potentially arising) from accidents involving bodily injury. According to the notes and testimony of the adjuster, Mr. Jones instructed her to deny the claim for statutory accident benefits on the basis that there was no "accident". She followed his instructions and issued a denial on December 11, 2003 by letter and form OCF-9. The letter states as follows:

"We wish to advise you that based on the information we have on file and our investigation into this matter, we have concluded that there was no accident with our insured and/or his vehicle. In addition, there was no physical evidence. Regrettably, we are also advising you that we are denying the spousal benefit and the funeral expenses based on our investigation."

The adjuster testified that she took no active steps to continue her investigation after December 11, 2003. She did not interview Mr. Heng. She did not seek to confirm the information provided by the son and daughter of Mr. DeBenedictis. She did not try to speak to the police officers involved or obtain a copy of the tape recording of the interview of Mr. DeBenedictis.

A few months after the denial of this claim, Wawanesa did receive additional information (such as witness statements taken by the police) but, according to the adjuster, she never reconsidered her position as new information was received. The adjuster admitted on cross-examination that she never revisited this denial after December 11, 2003, that the investigation was not ongoing and that she took no further steps after the denial was issued.

The adjuster conceded that she may also have noted some contradictions between the information provided to her by Dario DeBenedictis and the statements made by his father to the police but she did not investigate further.

At the time Wawanesa denied these claims, its entire investigation consisted of the adjuster's notes of telephone conversations she had with relatives of Mr. DeBenedictis (who were not even at the scene of the accident) and a police accident report that indicated that the van driven by Mr. DeBenedictis had made contact with Mr. Melchiorre, knocking him to the ground. The adjuster made no effort to continue the investigation after she issued the denial letter and she never reconsidered her decision as new information was received. By that time, Wawanesa had retained counsel and, according to the adjuster, she left the matter in the hands of Wawanesa's lawyers.

(c) Entitlement

(i) Submissions of the Applicants

It is the Applicants position that Wawanesa's withholding of benefits in this case was unreasonable. Although Wawanesa's client was Mr. DeBenedictis, under a no-fault accident benefit scheme, when the Applicants made their claim for death benefits and funeral expenses, Wawanesa stepped into the position of a first-party insurer and owed to the Applicants a duty of utmost good faith. It failed in that duty by failing to properly investigate the claim, by ignoring information that tended to support the claim, by allowing the supervisor of the tort department to influence the decision as to whether or not accident benefits would be paid and by refusing to reconsider its position as new information was received.

(ii) Submissions of the Insurer

The Insurer's position appeared to be that since, in its opinion, the evidence in this case was equivocal, an insurer could be wrong in denying the benefits in question without having been unreasonable and that, in light of the information available to Wawanesa at the relevant time, its decision was reasonable.

(iii) Analysis

I find that Wawanesa's decision to withhold benefits in this case was unreasonable for the following reasons (any one of which is sufficient on its own to justify the granting of a special award).

First, it appears that the Insurer applied the wrong test. The adjuster seemed to be preoccupied with whether or not the van "struck" Mr. Melchiorre. Although it was important to try to ascertain the answer to this question, the analysis should not have stopped there. The real question is whether the van was the direct cause of an impairment that led to the death of Mr. Melchiorre. In order to be the direct cause, the van need not be the only cause or even the most immediate cause¹⁸ and there need not necessarily have been any physical contact between the vehicle and Mr. Melchiorre.¹⁹

Second, at the time the adjuster made her decision, she had an official police record indicating that the van had knocked Mr. Melchiorre to the ground. The adjuster chose to ignore this and, instead, relied solely upon her notes as to what the children of Mr. DeBenedictis told her that their father had told them about the incident. The adjuster testified that she made no effort to confirm the accuracy of the statements made by the children of Mr. DeBenedictis. This does not appear to me to be a careful investigation into and weighing of the available information.

Third, through her discussions with the children of Mr. DeBenedictis, the adjuster was aware that there likely existed relevant ambulance, hospital, coroner and police records (including photographs and witness statements). The adjuster made her decision without obtaining this information. At no time during the hearing did she ever suggest that this was due to any lack of co-operation on the part of the Applicants.

Fourth, it was unreasonable for the adjuster to allow Kevin Jones to participate in the decision as to whether or not to accept this claim for accident benefits. Before making a final decision, the adjuster asked for his input and his "instructions" to her were to deny the claim for accident benefits as there had been no "accident". As the head of the bodily injury unit, Mr. Jones primary responsibility would be to vigorously defend any tort claim made against Mr. DeBenedictis. On the claim for accident benefits, the adjuster's primary duty was to fairly assess the Applicants entitlement to the benefits claimed. Obviously, there is a potential for conflict between the interests of Mr. DeBenedictis and the Applicants. That is why the adjuster ought not to have allowed Mr. Jones to influence her decision in this matter.

Fifth, it was unreasonable for Wawanesa to continue to deny the claim without assessing new information as it was received.

From the evidence presented, it appears to me that the individuals at Wawanesa responsible for handling these claims for accident benefits made little honest effort to investigate the matter, ignored information that tended to support the claim (such as the police accident report), came to a hasty decision not supported by any reliable evidence, were primarily concerned with protecting the person they perceived to be their insured (Mr. DeBenedictis) and refused or neglected to reassess the validity of the claim as new information was received.

It is impossible to know whether the adjuster at Wawanesa would have come to a different conclusion with regard to these claims if she had properly investigated the claims and had kept an open mind as new information was received by Wawanesa. Nevertheless, the fact remains that by their conduct, the responsible persons at Wawanesa put themselves in the position of being unable to make a reasoned decision concerning these claims for accident benefits. Consequently, the withholding of those benefits by Wawanesa was unreasonable.

(iv) Conclusion

For the foregoing reasons, I find that Wawanesa unreasonably withheld payments, contrary to s. 282(10) of the Insurance Act and that, as a result, the Insurer must pay a special award on both the death benefits and on the funeral benefits claimed.

(d) Amount of the Special Award

Neither party made any submissions at the hearing with respect to the issue of the appropriate quantum of special award in this case and, before deciding this issue, I wish to give them another opportunity to do so. My own preliminary calculations indicate that, if the payment of the benefits is considered overdue as of October 11, 2003 (31 days after the claims were submitted to the Insurer) and if interest is calculated to the last day of the hearing (October 5, 2006):

1. The maximum special award that could be granted with respect to the funeral benefits would be $12,664.84 (50% of the sum of: funeral benefits of $6,000.00, overdue interest of $6,208.29 and special award interest of $13,121.39); and

2. The maximum special award that could be granted with respect to the death benefits would be $52,770.15 (50% of the sum of: death benefits of $25,000.00, overdue interest of $25,867.86 and special award interest of $54,672.45).

If the parties agree with these figures, then they may restrict their submissions to the appropriate amount of special award to grant in this case in accordance with principles set out in the Persofsky decision²⁰ and any other cases relevant to this issue that they wish to put before me. Alternatively, if the parties disagree with the figures set out above, they may also make submissions with respect to the calculation of the maximum special award that may be granted.

Counsel for the Applicants shall be allowed until 30 days from the date of this decision to serve on opposing counsel and to file with the Commission his written submissions on the issue of the amount of the special award that ought to be granted as well as copies of any cases upon which the Applicants wish to rely with respect to this issue.

Counsel for the Insurer shall then be allowed 30 days to respond to the Applicants' submissions by serving on opposing counsel and filing with the Commission his written submissions on the issue of the amount of the special award that ought to be granted as well as copies of any cases upon which the Insurer wishes to rely with respect to this issue.

Counsel for the Applicants shall then be allowed 10 days to reply to the material filed by the Insurer.

EXPENSES:

At the conclusion of the hearing, the parties asked that I defer the issue of entitlement to expenses of this arbitration. The parties shall be provided with an opportunity to make submission on both the entitlement to and amount of expenses following the release of my decision on the amount of the special award.

December 22, 2006

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 204

FSCO A05-000491 and FSCO A05-000492

BETWEEN:

IRMA MELCHIORRE ON HER OWN BEHALF AND AS ADMINISTRATRIX FOR THE ESTATE OF ALBERTO MELCHIORRE

Applicants

and

WAWANESA MUTUAL 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:

1. Wawanesa shall pay the following to the estate of Alberto Melchiorre:

(a) pursuant to section 26 of the Schedule, funeral benefits in the amount of $6,000.00;

(b) pursuant to section 46(2) of the Schedule, interest thereon at the rate of 2 per cent per month compounded monthly from October 11, 2003 onwards; and

(c) pursuant to subsection 282(1) of the Insurance Act, a special award in an amount to be determined.

2. Wawanesa shall pay the following to Irma Melchiorre:

(a) pursuant to section 25 of the Schedule, death benefits in the amount of $25,000.00;

(b) pursuant to section 46(2) of the Schedule, interest thereon interest thereon at the rate of 2 per cent per month compounded monthly from October 11, 2003 onwards; and

(c) pursuant to subsection 282(1) of the Insurance Act, a special award in an amount to be determined.

3. My decision on the issue of the amount of the special award (referred to in paragraphs 1(c) and 2(c) above) and the issue of expenses is deferred.

December 22, 2006

Richard Feldman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2R.S.O. 1990, c.I.8, as amended.
3. 3El-Saikali and Co-operators General Insurance Company (FSCO Appeal P01-00059, March 13, 2003) and TTC Insurance Company Limited and Wootton (FSCO Appeal P04-00004, November 2, 2004).
4. 4TTC Insurance Company Limited and Wootton (FSCO Appeal P04-00004, November 2, 2004) quoting from H.K. and Canadian Surety Company (FSCO P98-00041, February 29, 2000).
5. 5El-Saikali and Co-operators General Insurance Company (FSCO Appeal P01-00059, March 13, 2003) referring to J.D. and Kingsway General Insurance Company (FSCO P97-00022, July 15, 1999), at p. 8.
6. 6Notes of P.C. Wells (Ex. 3, Tab 1, p. 9).
7. 7He did state, however, that in his experience dealing with pedestrians struck by a motor vehicle, bruises usually begin to form by the time he arrives at the scene.
8. 8According to Gianni Melchiorre, his father had gone missing one time before, approximately ten years earlier, but there had been no similar incidents since that time.
9. 9Blue or purplish patches in the skin.
10. 10Erickson and Guarantee Company of North America, [1992] O.IC.D. No. 27 (OIC File No. A-000560, July 16, 1992).
11. 11Erickson and Guarantee Company of North America, [1992] O.IC.D. No. 27 (OIC File No. A-000560, July 16, 1992), at p. 3.
12. 12Primmum Insurance Co. v. Aviva Insurance Co. of Canada, 2005 CanLII 11975 (ON SC), [2005] O.J. No. 1477 (Ont. S.C.J.) and Osborne v. Non-Marine Underwriters, Lloyd's of London, (2003) 2003 CanLII 7000 (ON SC), 68 O.R. (3d) 770 (Ont. S.C.J.). This, of course, does not relieve an insured person of his or her obligation under s. 33 of the Schedule to provide the insurer with information requested by the insurer and that is reasonably required to assist the insurer in determining the person's entitlement to a benefit: Wawanesa Mutual Insurance Company and Sorokin, (FSCO Appeal P04-00008, August 9, 2005) at p. 26.
13. 13Peters and Aviva Canada Inc., [2006] O.F.S.C.D. No. 62 (FSCO A05-000196 and A05-000197, April 10, 2006) at para. 107 and Osborne v. Non-Marine Underwriters, Lloyd's of London, (2003) 2003 CanLII 7000 (ON SC), 68 O.R. (3d) 770 (Ont. S.C.J.).
14. 14Peters and Aviva Canada Inc., [2006] O.F.S.C.D. No. 62 (FSCO A05-000196 and A05-000197, April 10, 2006) at para. 108.
15. 15The adjuster testified that this was her recollection but her notes do not reflect this fact.
16. 16Throughout the adjuster's notes she uses "I/S" for "insured" (whom the adjuster considered to be Mr. DeBenedictis) and "T/P" for "third party" (whom the adjuster considered to be Mr. Melchiorre).
17. 17This letter was not introduced into evidence.
18. 18Mariano and TTC Insurance Company Limited (FSCO A05-002112, Sept. 15, 2006).
19. 19See the numerous cases cited in Mariano and TTC Company Limited (FSCO A05-002112, Sept. 15, 2006) and in Webb and Lombard General Insurance Company of Canada (FSCO A06-001004, Nov. 10, 2006) in which it was found that there was an "accident" despite the lack of physical contact between a vehicle and the injured person at the time the injury was sustained.
20. 20Liberty Insurance and Persofsky, (FSCO Appeal P00-00041, January 31, 2003).