Neutral Citation: 2006 ONFSCDRS 90

FSCO A04-001458

BETWEEN:

AMMA KWATEMAA Applicant

and

CERTAS DIRECT INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Maggy Murray

Heard: November 28, 29, 30, December 1, 2005, April 20 and 21, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Carmine Tiano for Ms. Kwatemaa Ryan M. Naimark for Certas Direct Insurance Company

Issues:

The Applicant, Amma Kwatemaa, claims she was injured in a motor vehicle accident on July 14, 2002. She applied for statutory accident benefits from Certas Direct Insurance Company ("Certas"), payable under the Schedule.¹ Certas did not pay the Applicant any statutory accident benefits because it did not believe she was involved in an accident on July 14, 2002. The parties were unable to resolve their disputes through mediation, and the Applicant 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 the Applicant involved in an accident on July 14, 2002 as defined in section 2 of the Schedule?

Result:

The Applicant was involved in an accident on July 14, 2002 as defined in section 2 of the Schedule.

THE POSITIONS OF THE PARTIES:

The Applicant claims that her vehicle, a red Toyota, collided with a green Infinity driven by Ms. Abdi Fatuma.

Certas asserts that the Toyota did not collide with the Infinity. It says that the Applicant staged the incident and that her vehicle was struck while it was stationary in order for it to appear that it was involved in an accident. It is Certas's position that the Applicant's account of events leading up to the alleged accident has no air of reality and that inconsistencies in the evidence regarding the manner in which the alleged accident took place, together with the reports of an investigator and mechanical engineer, lead to the conclusion that the Toyota did not collide with the Infinity.

LAW:

"Accident" is defined in section 2 of the Schedule as "an incident in which the use or operation of an automobile directly causes an impairment..." The Applicant has the burden of proving an accident occurred.²

WITNESSES:

The Applicant was the only witness on her behalf.

Mr. Real Fillion, an adjuster from ING (the insurer of the Infinity), testified that the property damage adjuster at ING received a phone call from a police officer at the Collision Reporting Centre ("CRC") advising that in the opinion of the police officer, the alleged accident was suspicious because the damage to the Infinity "does not appear to be appropriate." I heard no evidence as to why the police officer formed this opinion.

Ms. Gina Holzworth, an investigator from Certas, testified that her manager at Certas received a similar phone call from a police officer. I heard no evidence as to why this police officer concluded that the accident was suspicious.

Certas retained Mr. Al Jenkins to investigate the alleged accident and prepare a report. Certas did not call Mr. Jenkins as a witness but his report was entered as an exhibit.

Mr. Mario Smolej, a mechanical engineer, was retained by Certas to investigate the alleged accident. He prepared a report dated January 5, 2005 in which he concluded that the Applicant's vehicle was not struck by the Infinity. Mr. Smolej was called as a witness by Certas and his report was entered as an exhibit.

EVIDENCE AND ANALYSIS:

The Applicant's Case:

Events Leading Up To The Alleged Accident

I recite the Applicant's version of the events leading up to the accident because Certas argued that they do not make sense. The Applicant testified that she was invited to a "send-off" party in March 2002. The party was for the mother of a friend, who was returning to Ghana. It was scheduled for July 14, 2002. The Applicant testified that she did not know either the last name or the telephone number of the friend that invited her to the party. She said that she knew her friend "from the community."

The Applicant said a woman named Rita began working as a temporary employee at the same factory where the Applicant worked in May 2002. Rita also told the Applicant about the send-off party. The factory shut down approximately two weeks before the party.

The Applicant said Doris Sarpong ("Doris") was her hairdresser who also sold African clothing. Rita purchased some African clothing from Doris. Rita owed Doris $180 for the clothing. Prior to the factory shut down, Rita gave the Applicant the $180 to pass along to Doris because Rita could not go to the send-off party.

The Applicant therefore left the party with Doris to drive to her apartment where the money was. The Applicant and Doris were accompanied by Ms. Florence Appiah-Kubi ("Florence"), who lived in the apartment building where the party was held. Doris and Florence planned on returning to the party by bus from the Applicant's apartment.

According to Certas, it is not believable that: (1) the Applicant would be invited to a party four months in advance by a person whose last name and telephone number the Applicant did not know; (b) Rita would give the Applicant $180 to pass on to Doris prior to the factory shut down; and (3) Doris and Florence would go to the Applicant's apartment and return to the party by bus.

The Applicant was cross-examined on these points and her testimony was not shaken. I accept her version of the events leading up to the alleged accident. I do not find that they support Certas's theory that the accident was staged.

The Alleged Accident

The Applicant testified that she left the party in her Toyota between 7:00 p.m. and 7:30 p.m. with Doris and Florence. She drove, Doris sat in the front passenger seat, with Florence in the back seat. The Applicant testified that Florence sat in the rear driver's side seat. However, the CRC Report the Applicant completed the day after the accident notes that Florence sat in the rear passenger side seat. Certas relied on this inconsistency as evidence that the accident was staged. I find this inconsistency to be minor and place no weight on it due to the passage of time between the accident and the hearing.

Both the CRC Reports completed by the Applicant and Ms. Fatuma, the driver of the Infinity, indicate that the accident occurred at 8:00 p.m. According to Certas, since the alleged accident took place approximately one to two blocks from the party and the alleged accident occurred at 8:00 p.m., the Applicant could not have left the party between 7:00-7:30 p.m. This is probably true. It is quite likely that the three women left closer to 7:45 p.m. However, I find this difference in timing to be minor considering the time that has elapsed between the accident and the hearing. I do not find that it supports Certas's theory that the accident was staged.

The Applicant testified that she turned at St. Andrews Blvd. onto Islington Avenue and drove south along Islington at a speed she estimated at 40-60 km/h. The Infinity was travelling east along Kingsview Blvd. and attempted to turn left onto Islington Avenue (i.e., to travel north). As the Infinity was crossing the path of southbound traffic it collided with the Applicant's Toyota.

The Applicant testified that the day after the accident, she felt severe headache and pain on her leg and left knee, her left side and neck. Certas did not cross-examine the Applicant on her injuries.

The credibility of the Applicant and her evidence is critical to this case. In assessing the Applicant's credibility, I have considered the following factors: her demeanour, her apparent powers of observation, her apparent powers of recall, her attitude while testifying, her ability to resist the tug of self interest, the inherent plausibility of her evidence within itself, and the consistency of that evidence standing alone and as compared to other evidence.³ The Applicant testified in a direct and forthright manner. She did not appear to embellish or exaggerate her evidence. Her evidence of what occurred on the night in question was not shaken in cross-examination. Based on the foregoing, I found that the Applicant was credible.

Certas's Case:

Certas argued that the Applicant's evidence should not be believed for the following reasons: (1) it is not corroborated; (2) the Applicant's description of the accident is inconsistent with statements given to ING (Ms. Fatuma's insurer) by Ms. Najma Osman ("Osman") and Mr. Abdillahi Mohamed ("Mohamed"), who were passengers in the Infinity, as well as Doris' description of the accident as contained in an In-Home Assessment Occupational Therapy Assessment Report; (3) According to Gina Holzworth, an investigator from Certas, Florence told her that she did not know the Applicant; and (4) the reports of Mr. Jenkins and Mr. Smolej conclude that the accident did not occur.

Corroboration

With respect the absence of corroboration, Certas submitted that I should draw an adverse inference because there were seven people allegedly involved in this alleged accident and none of them except the Applicant gave evidence at the hearing. I disagree with that submission. While I agree that credible evidence from other witnesses confirming the Applicant's evidence would have buttressed her case, I do not find that the absence of such evidence defeats it.

This issue was considered by the authors of the text The Law of Evidence in Canada in which it is stated: "an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party."⁴

I do not draw a negative inference from the Applicant's failure to call other persons involved in the accident because I find that she made reasonable efforts to have those persons attend and testify at the hearing. Those efforts include the failure of Doris to attend despite her affidavit confirming that she would be in attendance at the resumed hearing and an inability to serve Florence and Ms. Fatuma with a Summons to Witness despite numerous reasonable efforts.

Conflicting Statements

I will now address Certas's argument that the Applicant's evidence conflicts with the statements given to ING by Osman and Mohamed, who were passengers in the Infinity, as well as a statement given by Doris. These statements are as follows:

According to Osman, the Applicant's vehicle was travelling along a side street, came out of the side street and struck Ms. Fatuma's vehicle, which was travelling along Islington Avenue. A diagram attached to Osman's statement indicates that one vehicle was travelling north on Islington Avenue and struck another vehicle that was exiting a side street and turning left. It is not known who drew this diagram.
Mohamed's Application for Accident Benefits states that the Infinity was travelling along Islington Avenue when the Applicant made a left turn in front it.
The In-Home Occupational Therapy Assessment Report completed by Rosemount Medical Assessment Centre with respect to Doris states that the Applicant's vehicle was travelling north along Islington Avenue when the Infinity came out of Kingsview Avenue and struck the front passenger side of the Applicant's vehicle. Kingsview is an east west street at a T-junction that can only be entered along the southbound side of Islington. This description of the accident is obviously incorrect because if the Applicant's vehicle was travelling north along Islington Avenue and was struck by a vehicle exiting Kingsview Avenue, it is the driver's side of the Applicant's vehicle that would get struck.

I do not attach any weight to these statements since the declarants were not cross-examined on them. The Occupational Therapy report is particularly unreliable since it was not prepared by Doris. For these reasons, I prefer the evidence of the Applicant where it conflicts with each of these statements.

Gina Holzworth's Evidence

Certas also relies on the evidence of Gina Holzworth, an investigator from Certas. Ms. Holzworth testified that although Florence advised Certas in July 2002 that she was injured as a result of the accident and Certas mailed her an Application for Accident Benefits, she never returned it to Certas. Ms. Holzworth did not meet with Florence until November 9, 2004. In her evidence-in-chief, Ms. Holzworth stated that Florence said she did not know the Applicant and could not recall this car accident. However, when cross-examined, Ms. Holzworth stated that Florence was "not sure" whether she knew the Applicant. Ms. Holzworth spoke again with Florence on November 15, 2004. When asked about the accident, Florence stated that she did not recall the details of the accident and "just wanted to leave it at that."

In my view, Ms. Holzworth's evidence indicates that Florence was not interested in helping Certas in its investigations and was both uncooperative and unresponsive. Florence appears to have "brushed off" Ms. Holzworth. It is not clear why Florence took this posture. Certas suggests that it was because the accident was staged. This strikes me as highly speculative. As such I do not find Ms. Holzworth's evidence to be particularly helpful in resolving the issue before me.

At this point it is clear that Certas put the Applicant to the test of what others (namely Osman, Mohamed, Doris and Florence) said about the accident and concluded the accident did not occur.

However, in doing so it disregarded evidence that the accident was not staged, such as: (1) Florence advised Certas in 2002 that she was injured in an accident and was sent an Application for Accident Benefits; (2) the accident description in Ms. Fatuma's CRC Report (namely, the accident location and direction of travel of each car) and diagram are consistent with the Applicant's CRC Report. Although Certas noted that the Proof of Loss completed by Ms. Fatuma more than two months after the alleged accident indicates that the incident occurred at 8:30 p.m., this is another example of Certas putting the Applicant to the test of what someone else said about the accident.

Damage to the Infinity

After ING advised Ms. Fatuma that its investigations revealed that the damage to her vehicle was consistent with an impact against a narrow vertical object (such as a pole), Ms. Fatuma's representative advised ING that there was damage to her vehicle which pre-dated this alleged accident. Although ING's log notes indicate that the representative said Ms. Fatuma struck a wall, it is possible that the representative misspoke himself or misunderstood information that was relayed to him. This pre-existing damage was "v-shaped."

Report of Al Jenkins

Certas retained Mr. Al Jenkins, a former police officer, to conduct an accident reconstruction. According to Mr. Jenkins's resume, he has conducted over 3,000 accident investigations. Mr. Jenkins prepared a report dated July 26, 2002 in which he concluded that the Applicant's vehicle did not collide with the Infinity. Mr. Jenkins relied upon the information contained in the CRC Reports. Mr. Jenkins did not examine the Applicant's vehicle, although it was taken to a body shop following the collision and his report was prepared 12 days following the collision. Mr. Jenkins did not interview either the Applicant or Ms. Fatuma. Mr. Jenkins was not advised that there was pre-existing v-shaped damage to Ms. Fatuma's vehicle.

Mr. Jenkins's report states that the Infinity was travelling westbound. This is inaccurate because according to both the diagrams and descriptions on the CRC Reports, the Infinity was travelling eastbound. It also states that there were no marks on the Applicant's vehicle that were consistent with an impact into the side of the vehicle approaching "from the left." This is inaccurate because both the diagram and description of the accident contained in the CRC reports completed by the Applicant and Ms. Fatuma clearly indicate that Ms. Fatuma approached the Applicant's vehicle from the right. I find the report of Mr. Jenkins unreliable based on the inaccuracies it contains and accord it little weight.

Mario Smolej

Mr. Smolej did not examine either vehicle involved in the accident, nor did he attempt to interview either the Applicant or Ms. Fatuma. He examined photographs of the damaged vehicles. He assumed that the information in the CRC Reports, including the estimated speed of each vehicle, was accurate.

Mr. Smolej's opinion was that the Applicant's vehicle was stationary when it was struck by another vehicle travelling at a speed of less than 10 km/h. He said the pre-existing v-shaped damage to Ms. Fatuma's vehicle would flatten out following a collision as described by the Applicant and Ms. Fatuma in their CRC Reports. Mr. Smolej's opinion was that the red paint on the Infinity was from two different sources, one of which may have occurred when the Infinity struck a pole, which was possibly red. Based on the photographs, Mr. Smolej concluded that there was no green paint transfer from the Infinity to the Applicant's red vehicle. However, he said that if the Applicant's vehicle was travelling at less than 30 km/h, then it is possible that paint would not transfer from the Infinity to the Applicant's vehicle. Mr. Smolej stated in cross-examination that it is possible that there is some scratching on the light red paint transfer on the Infinity.

Mr. Smolej qualified the statement that "of course" it is relevant to speak to the drivers of the vehicles involved in an accident by stating that it depends on the information that he can glean from what is provided to him. Although Mr. Smolej finds it is preferable to examine the vehicles involved in a collision rather than relying upon photographs of the damaged vehicles, he advised that in this case, based on "fitting everything together," examining the vehicles would render "almost no change" in his opinion. He then stated that his opinion would not have changed.

Mr. Smolej relied upon the information contained in the CRC reports. However, the CRC report completed by Ms. Fatuma was not accurate. For example, Ms. Fatuma stated in her CRC report that: (1) it was dawn although the accident time is noted to be 8:00 p.m.; (2) the traffic control was a yield sign rather than a stop sign; (3) her direction of travel is noted as north but the diagram and description indicate that she was travelling east. Although Ms. Fatuma's approximate speed is stated on her CRC report to be 30 km/h, Mr. Smolej estimated her speed at between 16-23 km/h.

Mr. Smolej's report at pages six-seven states: "Ms. Fatuma stated that she did not see the Toyota until the two vehicles collided." However, Ms. Fatuma's statement on her CRC Report is: "I was coming out of houses to Islington, and I was making left turn to north of Islington, out of no were (sic) I sean (sic) a car." Mr. Smolej agreed in cross-examination that it is possible to interpret this statement to mean that Ms. Fatuma saw the Applicant's vehicle before the collision.

According to Mr. Smolej's report, there was no damage to the front headlamps, corner lamps or bumper fog lamps of Ms. Fatuma's vehicle. However, the damage documentation for Ms. Fatuma's vehicle indicates at items 0042-0059 that various lights required repair. Mr. Smolej's evidence was that when a vehicle is involved in a collision, although part of a vehicle may not actually be damaged, it may become misaligned and require replacement. I find that because Mr. Smolej did not examine the Infinity, he cannot be certain whether the front lighting system of the Infinity was damaged (perhaps internally) or misaligned.

Mr. Smolej did not have any information about the actions of the drivers just prior to the collision, the exact point of impact, the post impact movements of the vehicles or the final resting positions of the vehicles. An expert opinion is only as reliable as the information it is based on.⁵ Mr. Smolej did not have all the information, particularly, he did not examine the vehicles. Moreover, some of the information he relied upon was not accurate. Consequently, I did not find his evidence reliable and accord it little weight.

CONCLUSION:

I have found the Applicant to be a credible witness. I accept that the Applicant may not be entirely accurate in her recollection about the time she left the party, the speed at which she was travelling, or the precise time at which the accident occurred.⁶ However, this does not lead me to conclude that the accident was staged. Rather, I find that the Applicant's memory of the events may be affected by the lapse of time between the accident and the hearing.

The Applicant was the only witness directly involved in the accident who testified. The Applicant expended considerable effort in trying to secure the attendance of Doris, Florence, and Ms. Fatuma. I therefore do not draw an adverse inference from the fact that the Applicant's evidence was not corroborated by another witness with direct knowledge of the incident. I also do not place any weight on the hearsay statements of Osman, Mohamed, and Doris tendered by Certas. Of all the participants in the accident, I have only had the benefit of the Applicant's evidence, which I have found to be credible.

Florence was uncooperative in Certas's investigation. I do not know why. I do not consider her lack of cooperation to be reliable evidence that the accident was staged.

The reports of Mr. Jenkins and Mr. Smolej conclude that there was no collision between the Applicant's vehicle and the Infinity. However, neither Mr. Jenkins or Mr. Smolej attempted to interview either the Applicant or Ms. Fatuma. Mr. Jenkins did not examine the Applicant's vehicle. Mr. Smolej did not examine either the Toyota or Infinity. Both reports were, in part, based on faulty information. For these reasons, and my reasons above, I have accorded the reports of Mr. Jenkins and Mr. Smolej little weight. These reports do not outweigh the direct evidence of the Applicant, which I have found to be credible.

There was no evidence to suggest that the Applicant knew either Ms. Fatuma or any of the passengers in her vehicle, or conspired with any of them to stage an accident.

Having balanced the Applicant's evidence against the evidence and arguments advanced by Certas, I conclude that the Applicant has met the onus of proving that she was involved in an accident on July 14, 2002.

EXPENSES:

Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.

June 2, 2006

Maggy Murray Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The Applicant was involved in an "accident" as defined in section 2 of the Schedule.
If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.