Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 116
FSCO A06-000202
BETWEEN:
KWAKU ADDAE
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Richard Feldman
Heard: February 19, 20, 21 and 22, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Mr. Addae for himself Ms. Joan Takahashi for Dominion of Canada General Insurance Company
Issues:
The Applicant, Kwaku Addae, claims to have been injured in a motor vehicle accident on May 4, 2004. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company (“Dominion”), payable under the Schedule.1 Disputes arose between the parties concerning Mr. Addae’s entitlement to accident benefits and Dominion’s entitlement to repayment of accident benefits it had paid to Mr. Addae. The parties were unable to resolve their disputes through mediation and Mr. Addae applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
A preliminary issue was identified by the parties at the pre-hearing conference and this hearing was restricted to dealing with that issue.
The preliminary issue is:
- Was Mr. Addae involved in an “accident” (as defined in section 2(1) of the Schedule) on May 4, 2004?
Result:
- Mr. Addae has failed to prove, on a balance of probabilities, that he was involved in an accident on May 4, 2004.
BACKGROUND:
The application for arbitration in this matter was filed in January 2006. At the time, Mr. Addae was represented by Krylov & Company. The pre-hearing conference took place on May 15, 2006. In or about July 2006, the firm of Krylov & Company brought a motion to be permitted to remove itself from the record as solicitors for Mr. Addae. This motion was granted by order dated October 3, 2006. The hearing of the preliminary issue that was originally scheduled to commence on November 1, 2006 was adjourned to February 19, 2007 to allow Mr. Addae time in which to retain new counsel. On February 19, 2007, Mr. Addae attended before me without legal representation.
Mr. Addae was assisted at the hearing by an intepreter (arranged by the Commission) in the Twi language and he advised me that he was ready to proceed with the hearing.
EVIDENCE AND ANALYSIS:
It is a settled legal principle that the burden of proof in insurance claims rests upon the insured to establish a right to recover under the terms of the policy. The fact that the insurer challenges the facts upon which the claim is based or explicitly or implicitly alleges that the insured person is fraudulently putting forward the claim in no way shifts the basic burden of proof resting upon the insured person.2
In this case, Dominion has challenged whether Mr. Addae was involved in a motor vehicle accident on May 4, 2004. Dominion raised this as a preliminary issue. It took four days for me to hear all of the evidence and submissions related to this preliminary issue. Mr. Addae had the onus of proving that he was, in fact, involved in an “accident” on May 4, 2004. For the reasons that follow, I find that he has failed to meet that onus.
This case turns almost entirely upon the credibility of Mr. Addae. He filed no documents in support of his application. He testified at the hearing but called no witnesses to corroborate his testimony.
On January 31, 2005, Dominion advised Mr. Addae’s solicitors that it required him to be examined under oath (Ex. 1, Tab A38). The examination took place on February 24, 2005 at the office of Mr. Addae’s counsel.
Prior to that, Dominion confirmed in writing that Mr. Addae did not require an interpreter for the interview (Ex. 1, Tab A42). A transcript of that examination was filed by Dominion at this hearing (Ex. 1, Tab F).
Mr. Addae belongs to the Ghana Methodist Church (the “Church”). Through the Church, he met Seth Kwarteng and a woman with whom Mr. Kwarteng lives, Grace Antwi. According to Mr. Addae, a member of the Church lost her husband and Mr. Addae arranged with Mr. Kwarteng to go together on the evening of May 4, 2004 to visit the widow at her home. They agreed to meet at the Church on the evening of May 4, 2004 and to travel together from there. On these points, Mr. Addae has been consistent.
The story he told during his examination on February 24, 2005, continued as follows:
He arrived at the Church at approximately 5:00 p.m., left his vehicle (a 2001 Blazer) in the Church parking lot and departed shortly thereafter (around 5:15 p.m.) in Grace’s car (a beige Infiniti).
Grace was driving, Seth was in the front passenger seat and Mr. Addae was in the rear passenger-side seat (behind Seth).
They stopped to buy some juice at a store and then continued on their way.
While travelling southbound on Martingrove Road (near Silverstone Dr.), at around 5:30 p.m., Grace’s car was struck from the right side by another vehicle that was exiting a plaza.
The initial impact was near the rear passenger side of Grace’s car and then the other vehicle scraped forward along the passenger side of Grace’s car. Both vehicles then came to a stop.
The other vehicle was a small four-door automobile.
Mr. Addae could not recall the make or colour of the other vehicle and did not obtain any information such as the licence plate number or other particulars about the other vehicle or the driver of the other vehicle. He could not recall the number of occupants of the other vehicle.
Grace got out and spoke to the driver of the other vehicle and exchanged information with the other driver.
While Grace and Seth continued to talk with the driver of the other vehicle, Mr. Addae hailed a passing taxi and took the taxi back to the Church to pick up his own vehicle.
He then drove home and arrived at his home around 8:00 p.m.
In his testimony before me, Mr. Addae gave the following version of events:
He arrived at the Church in time for a 7:00 p.m. meeting at the Church. He left his vehicle in the Church parking lot. After 8:00 p.m. (after the meeting), he departed the Church in Grace’s car.
Seth was driving Grace’s car. Grace was not present. The front passenger seat was vacant. Mr. Addae sat in the rear passenger-side seat.
They stopped at a store to buy some stuff (juice and cookies) for a funeral.
While travelling southbound on Martingrove Road (near Silverstone Dr.), at around 10:00 p.m., Grace’s car was struck from the right side by another vehicle that was exiting a plaza.
The initial impact was near the rear of Grace’s car and then the other vehicle scraped forward along the passenger side of Grace’s car. Both vehicles then came to a stop.
The other vehicle was a small, black, “American”, four-door automobile with a metallic bumper, painted white.
There were two men in the other vehicle. They both spoke English with accents. They appeared to Mr. Addae to be Mexican.
Seth got out and spoke to the driver of the other vehicle and exchanged information with the other driver. Seth was scared to call the police because he was drunk.3 Seth said that he would call Grace to come get the car and take it to the collision reporting centre and that Mr. Addae could leave if he wished.
Mr. Addae hailed a passing taxi and took the taxi directly home (leaving his own vehicle in the Church parking lot).
He arrived at his home around midnight.
Mr. Addae tried to explain away the inconsistencies in these stories by claiming that he did not understand all of the questions posed on February 24, 2005 and did not have the assistance of an interpreter during that examination. Having reviewed and considered the transcript as a whole, however, I find that Mr. Addae appears to have understood most of the questions asked and would indicate if he did not understand a question. Furthermore, he went beyond merely answering “yes” or “no” to questions and would often elaborate on his answers or volunteer information. There is no record of Mr. Addae requesting an interpreter at any time before or during the examination and at no time after February 24, 2005 did he ever attempt to correct any of his answers until a week or two before this hearing (i.e. approximately two years later). He failed to provide any explanation for why he waited almost two years to advise Dominion that he intended to recant his earlier sworn statement and tell a different version of events at this hearing. I am not satisfied that the discrepancies in the story told by Mr. Addae on February 24, 2005 and the story he told before me can be explained by a purported lack of proficiency in the spoken English language.
Seth Kwarteng might have been able to shed some light on what occurred on the evening of May 4, 2004. Mr. Addae did not summons him or produce him as a witness.
Furthermore, there are suspicious circumstances in this case that make relying upon Mr. Addae’s uncorroborated testimony even more problematic.
First, it is the opinion of a police expert (P.C. Wesley Hamilton of Traffic Services) and an engineer who specializes in motor vehicle accident reconstruction (Sam Kodsi) that, given the location(s), size, shape and nature of the damage done to Ms. Antwi’s car and the lack of paint transfer and other physical evidence typically found in accidents of this nature, the “accident” did not occur as described by Mr. Addae. According to Mr. Kodsi and P.C. Hamilton, the damage was likely the result of multiple events and was generally too high on Ms. Antwi’s vehicle and the scratches were too sharp to have been caused by another car’s front bumper (as described by Mr. Addae). Both experts also concluded that the damage was more consistent with Ms. Antwi’s vehicle having been driven against a rough surface such as masonry or cement and that the initial impact appears to have been near the front of Ms. Antwi’s vehicle (not in the rear as described by Mr. Addae).
Second, the story told by Mr. Addae under oath on February 24, 2005 was more or less consistent with the police report filed by Ms. Antwi on May 5, 2004 and with statements taken by Dominion from Mr. Kwarteng and Ms. Antwi in May and June 2004. They both stated that Ms. Antwi had been driving her car, with Seth in the front passenger seat and Mr. Addae sitting in the rear, behind Seth. Mr. Addae, Mr. Kwarteng and Ms. Antwi could only have told this same version of events if this is in fact what occurred (i.e. if they were all telling the truth) or if they were all colluding to fabricate a consistent story. Unfortunately, as it turns out, the latter is the case.
On May 5, 2004 at approximately 1:05 a.m., Grace Antwi attended at a collision reporting centre and completed an accident report in which she alleged that she had been driving her vehicle southbound on Martingrove Road at 8:10 p.m., on May 4, 2004 when her vehicle was struck by a black, four-door, Buick LeSabre bearing plate number AJLK321, driven by Yousif Josif. Through his investigation into this matter, P.C. Hamilton discovered that the vehicle with the licence plate in question does not fit the description given by Ms. Antwi, that there is no such person at Yousif Josif living at the address provided for him, that the driver’s licence number provided by Ms. Antwi does not exist and that there is no such insurance policy number as the one given by Ms. Antwi for the other vehicle. While it is possible that the driver of the other vehicle provided false information to Ms. Antwi, the next discovery convinced P.C. Hamilton that Ms. Antwi was attempting to perpetrate a fraud. After interviewing Ms. Antwi’s employer and reviewing her employment file, P. C. Hamilton discovered that Ms. Antwi could not have been and was not driving her vehicle as she reported on the evening of May 4, 2004 because on that date she arrived at work at 4:00 p.m. and did not leave the premises until midnight.
P.C. Hamilton then charged Ms. Antwi with an offence under the Highway Traffic Act for filing a false report. She admitted that she had falsified the report and, ultimately, she pleaded guilty to this charge.
Because Grace Antwi, Seth Kwarteng and Kwaku Addae had all claimed (and received) accident benefits as a result of having been involved in this “accident”, the matter was then referred to the “fraud squad” which carried out its own investigation and charged all three of these individuals with fraud over $5,000 (under the Criminal Code). According to the testimony of P.C. Wesley Hamilton, Grace Antwi and Seth Kwarteng have each been convicted and are awaiting sentencing. Mr. Addae’s case was severed from the others and his trial is pending.
It should be noted that it was only after Ms. Antwi and Mr. Kwarteng were convicted (and Mr. Addae presumably knew that he could not continue to maintain that Grace had been driving the vehicle) that Mr. Addae finally changed his story.
While it is possible that Mr. Addae’s testimony before me was accurate, since he has demonstrated a willingness to lie under oath and to conspire with others to falsify information, it is difficult to have confidence in anything he says. The absence of any corroborating evidence and doubts raised by the experts who have concluded that the damage to Ms. Antwi’s vehicle could not have been caused by the type of impact described by Mr. Addae, only serve to confirm my opinion that Mr. Addae’s testimony is unreliable.
CONCLUSION:
Due to the numerous and significant inconsistencies between the sworn statement given by Mr. Addae on February 24, 2005 and his testimony before me concerning the details of the alleged accident, the persons involved and the circumstances surrounding that event and, to a lesser extent, inconsistencies within his testimony before me and given the lack of any corroborating evidence and the opinion of the expert witnesses referred to above, I find that Mr. Addae’s testimony in this matter is not credible. I therefore find that Mr. Addae has failed to prove, on a balance of probabilities, that he was involved in an accident on May 4, 2004.
As a result of this decision, the only remaining issues that will require a hearing is Dominion’s claim for repayment and the issue of the expenses of this arbitration. The hearing of these issues should take no more than one day.
Unless the parties resolve these issues on their own, the parties are to contact the case administrator, within 60 days of the date of this decision, to provide dates upon which they are available to attend before the Commission for a hearing of the remaining issues.
June 12, 2007
Richard Feldman Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 116
FSCO A06–000202
BETWEEN:
KWAKU ADDAE
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is determined that:
- Mr. Addae has failed to prove, on a balance of probabilities, that he was involved in an accident on May 4, 2004.
June 12, 2007
Richard Feldman Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Shakur v. Pilot Insurance Co. (1990), 1990 CanLII 6671 (ON CA), 73 D.L.R. (4th) 337, 74 O.R. (2d) 673 (Ont. C.A.) and TTC Insurance Company Limted and Wooton (FSCO Appeal P04-00004, November 2, 2004).
- Mr. Addae originally testified before me that both he and Seth were intoxicated at the time of the accident but then later changed his testimony to state that only Seth was drunk.