Neutral Citation: 2007 ONFSCDRS 151 FSCO A05-002263

BETWEEN:

APRIL PICHE Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: David Leitch Heard: April 30 and May 1, 2007 in Barrie, Ontario. Written submissions received: May 3, June 4 and June 8, 2007.

Appearances: Andrew Kerr for Ms. Piche Ian D. Kirby for Allstate Insurance Company of Canada

Issue:

The Applicant, Ms. April Piche, was involved in a single motor vehicle accident on November 14, 2003. According to the information she and her husband, Mr. Carl Piche, provided to the police and to Allstate Insurance Company of Canada ("Allstate"), Ms. Piche was driving and Mr. Piche was a front-seat passenger. Two years later, Allstate received an anonymous telephone call alleging that Mr. Piche was operating the vehicle at the time of the accident and that Ms. Piche was the passenger. This allegation motivated Allstate to commission an accident reconstruction investigation which concluded that Mr. Piche, not Ms. Piche, was driving the vehicle at the time of the accident. Relying on this report and on section 30(2)(a) of the Schedule, Allstate took the position that Ms. Piche had made a "material misrepresentation" and had "intentionally failed to notify the insurer of a change in the risk material to the contract" of automobile insurance. For this and other reasons, Allstate denied Ms. Piche's claim for income replacement benefits and housekeeping expenses under the Schedule.¹ The parties were unable to resolve their disagreements through mediation and Ms. Piche applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Allstate's section 30(2)(a) defence was apparently not discussed at either mediation or at the Pre-hearing but the parties nonetheless agreed to address it through this Preliminary Issue Hearing. The section 30(2)(a) defence raised both a factual issue, as to who was driving, and a legal issue, as to the proper application of the section. I only find it necessary to decide the factual issue. The Preliminary Issue was, therefore:

Was Ms. Piche driving the vehicle involved in the accident of November 14, 2003?

Result:

Ms. Piche was driving the vehicle involved in the accident of November 14, 2003.

Background

Mr. Kirby acknowledged that Allstate bore the onus of proving the facts necessary to make a finding in its favour under section 30(2)(a) of the Schedule. He sought to discharge that onus by attacking the credibility of Ms. Piche and Mr. Piche, both of whom testified that Ms. Piche was driving, and by calling as a witness the author of Allstate's accident reconstruction report, Mr. Gordon M. Jenish. Mr. Kerr did his best to rebuff the attack on the Piches' credibility and also called as a witness Mr. Jeff Archbold, the author of a second accident reconstruction report which supported the Piches' testimony that Ms. Piche was driving.

Despite the conflicting evidence about who was driving, there was little dispute about how the accident happened. The vehicle in which the Piches were travelling was a 1998 Ford Explorer owned by Ms. Piche. Mr. and Ms. Piche were each sitting in one of the two front seats of the vehicle and each was wearing a three-point lap and shoulder seat belt. The vehicle was heading north on Wilson Drive, just outside of Barrie, at a speed of between 70 and 80 km per hour in an 80 km per hour maximum speed zone. The road surface was slippery, due to either ice or snow, and the vehicle slid off the road into the east ditch where it rolled over and came to rest facing south. The vehicle was no longer available for inspection by Mr. Jenish or Mr. Archbold. Nevertheless, photographs taken soon after the accident² showed that the vehicle had rolled over with the driver's side leading and had landed most heavily on the driver side of the roof before righting itself onto all four wheels. This was confirmed by several facts visible in the photographs: there was relatively little damage to the front, back and sides of the vehicle, though more damage on the driver's side than on the passenger's side; the door pillars on the driver's side were more crumpled than on the passenger's side; there was more "roof crush" from the roof being pushed down on the driver's side than on the passenger's side;³ all windows on the driver's side were smashed in while only the passenger door window was smashed in; and, the driver's side tires were both off their rims and flat but the passenger side tires were still in tact.

Ms. Piche testified that she "blacked out" from the instant just before the rollover until she "woke up" in the vehicle when she heard Mr. Piche asking her if she was okay. She, therefore, gave no evidence about precisely how she was injured in the accident. The ambulance and hospital records indicated that Ms. Piche did not lose consciousness but that may only have been because she was conscious by the time help arrived. The records also stated that she sustained an abrasion to the left side of her head but they did not indicate that she had pieces of glass embedded in her hair on the left side of her head, as she testified. Finally, the records indicated that she had "chest pain from seat belt" but they did not refer to seat belt markings on the chest.⁴

I present later in this decision Mr. Piche's description of how he and Ms. Piche were injured in the accident. The ambulance and hospital records stated that he had "hit the dashboard" and that he complained of chest pain, again with no reference to seat belt markings. They further indicated that he complained of pain at the left sternum and rib wall and that he had dislocated his left shoulder. His shoulder separation was later described as being of the third-degree. Results of a subsequent bone scan were consistent with fractures of the left second, third and fifth ribs and possibly the superior edge of the scapula but there was no clavicle or other bone fracture in the left shoulder. Mr. Piche testified that he did not injure his head in the accident and there was nothing in the medical records to contradict his evidence on that point.⁵

The Piches' credibility

Mr. Piche testified at the hearing that he did not have, and had never had, a driver's licence, even though he spent 14 days in jail in 2000 for impaired driving. It follows that Mr. Piche would have reasonably expected to face serious consequences if caught driving, including perhaps further jail time. It also follows that if Mr. Piche was driving at the time of the accident, the Piches had a good reason to want to conceal that fact. On the other hand, fear of getting caught driving was also a good reason for Mr. Piche not to drive. In my view, the mere fact that Mr. Piche did not have a licence did not, by itself, provide grounds for challenging the Piches' evidence that Ms. Piche was driving at the time of the accident.

There were, however, significant inconsistencies in the Piches' evidence, a separate reason to doubt Ms. Piche's credibility and various reasons to doubt much of Mr. Piche's description of how he and Ms. Piche were injured in the accident. Still, for the reasons set out below, I find that, on the whole, Mr. Piche's credibility was undermined much less than Ms. Piche's.

The first inconsistency related to the Piches' evidence about whether, on the day of the accident, Ms. Piche was aware of the fact that Mr. Piche did not have a driver's licence. Ms. Piche testified that when she first met Mr. Piche in the year 2000, she thought that he had a driver's licence but that it had been suspended for one year as a result of an impaired driving charge that same year. She stated that she "expected" Mr. Piche had got his licence back after the one year suspension, that is, before the accident in November 2003, and that it was only three or four months after the accident that she learned from Mr. Piche that his driver's licence had been "suspended again" due to his failure to pay the fine imposed as a result of his impaired driving conviction. She claimed not to know either that he could not have got his "suspended licence" back without paying the fine or that he had not paid it. In short, Ms. Piche's evidence was that on the day of the accident, she thought Mr. Piche had a licence to drive.

In his examination-in-chief, Mr. Piche acknowledged that he had allowed Ms. Piche to assume that he had a driver's licence when they first met. However, he testified that she knew prior to the accident that there were, in fact, two reasons why he did not have, and could not get, a driver's licence. The first was the unpaid fine from his impaired driving conviction and the second was an unpaid child-support order. He stated that he received a letter concerning the unpaid child-support order about a year before the accident and that he discussed the unpaid fine and the unpaid child-support order with Ms. Piche both before and after the accident. He testified that Ms. Piche understood that the amount required to pay off both the fine and the child-support order made it impossible for him to obtain a driver's licence. On cross-examination, Mr. Piche specifically testified that on the day of the accident, Ms. Piche knew that he did not have a licence to drive.

I find it extremely unlikely that Ms. Piche never asked, or was never told by Mr. Piche, whether or not he actually got his driver's licence "back" after the one year "suspension." This cavalier attitude towards Mr. Piche's right to drive was contrary to the Piches' evidence about how they used the vehicle at the time of the accident. They testified that Ms. Piche normally drove both of them to work, her to her job in Toronto and him to his various job sites as an independent roofer in the Barrie area. However, they also testified that in the period immediately prior to the accident, Ms. Piche was no longer working in Toronto and that, on the day of the accident, she kept the vehicle to do "errands." Yet, Ms. Piche testified, she got up early enough on the morning of the day of the accident to drive 30 minutes from her temporary apartment in Barrie to her parents' home in Elmvale, where Mr. Piche was temporarily living, pick him up and drive another 30 minutes back from Elmvale to Barrie so that Mr. Piche could be at his job site in Barrie by 7 or 8 o'clock that morning. In the absence of any other explanation, this behaviour suggested that the Piches were both fully aware that Mr. Piche did not have a driver's licence and could not, for that reason, have driven himself back and forth between Barrie and Elmvale on the eve and the day of the accident.

Mr. Kerr called Ms. Piche in reply to contradict Mr. Piche's evidence that he received the letter about the unpaid child-support order prior to the accident. She maintained that this letter was not received until 2004, after the accident. This obviously created another conflict in the Piches' evidence but without resolving the conflict as to whether, on the day of the accident, Ms. Piche knew that Mr. Piche did not have a driver's licence. That is because Mr. Piche's testimony on the latter point was stated both in conjunction with his testimony about the letter, on examination-in-chief, and then independently of his testimony about the letter, on cross-examination.

Accordingly, I find that the conflict in the Piches' evidence as to whether Ms. Piche was aware of the fact that Mr. Piche did not have a driver's licence on the day of the accident, tended to undermine Ms. Piche's credibility more than Mr. Piche's.

Second, while the Piches both acknowledged that Mr. Piche drove the vehicle on occasions other than the day of the accident, they gave conflicting evidence about when. Ms. Piche testified that Mr. Piche "periodically" drove the vehicle before the accident when, as she "expected", the "suspension" of his driver's licence had ended. She nevertheless denied that Mr. Piche took over driving when she suffered a panic attack at the wheel on a trip to Sudbury at Christmas of the year of the accident. According to her evidence, they simply waited "two or three hours" until she calmed down and she was able to resume driving.

Mr. Piche testified that following his impaired driving conviction he "pretty much gave up driving" prior to the accident but he acknowledged that he drove after the accident, including on the trip to Sudbury when Ms. Piche became unable to drive due to her panic attack. He maintained that if he had been caught driving on that occasion, he would have explained the situation to the police officer. On cross-examination, Mr. Piche also admitted that he drove short distances after the accident, as shown in the surveillance tapes.

I find Ms. Piche's denial that Mr. Piche completed the drive to Sudbury very difficult to believe. Even if, contrary to her own evidence, she knew, and had always known, that Mr. Piche did not have a driver's licence, I find it most unlikely that Mr. Piche agreed to simply sit at the side of the road for two or three hours in the winter time while she calmed down. Her attempt to explain this behaviour was largely incomprehensible and most unconvincing. In contrast, Mr. Piche's testimony that he took over at the wheel was forthright and struck me as being both more plausible in the circumstances and more in keeping with his character as revealed during the course of his testimony.

Again, I find that the conflict in the Piches' evidence about when Mr. Piche drove, other than the day of the accident, tended to undermine Ms. Piche's credibility more than Mr. Piche's.

As mentioned, there was a separate reason to doubt Ms. Piche's credibility. On cross-examination, Mr. Kirby pointed out to her that she continued to receive income replacement benefits between June and December 2005 even though she had returned to part-time work during this six-month period. When asked whether failing to disclose her return to work to Allstate was not misleading conduct, Ms. Piche initially responded by claiming that her employment was only probationary. When Mr. Kirby challenged this response by pointing out that her probationary period was only for three months, Ms. Piche maintained that even after the three-month probationary period, she was "still not sure if I was able to work." On re-examination, Ms. Piche stated that her benefit cheques arrived "automatically" and that "no one ever asked me if I was working." Perhaps, but I have no doubt that Ms. Piche was well aware of the reason she was receiving these cheques and that she might not continue to receive them "automatically" if she informed Allstate of her return to work. I accept Mr. Kirby's submission that Ms. Piche's conduct was misleading and that her credibility as a witness must, as a result, be regarded as further undermined.

Finally, I turn to Mr. Piche's description of how he and Ms. Piche were injured in the accident. He testified that he fractured his left lower ribs when, as a passenger, his body collided with the raised console separating the two front seats. He stated that he sustained a left shoulder separation during one or more of the impacts caused when his body collided with the dashboard, the windshield, the roof and the passenger side window. He testified he saw Ms. Piche hit her head against the back pillar of the driver's door, the windshield, the roof and the steering wheel.

There were various reasons for doubting much of this testimony. First, Mr. Piche purported to describe in detail a series of co-incident events which took place in a matter of seconds almost three and one half years before he testified. Second, contrary to his testimony at the hearing about how Ms. Piche was injured, Mr. Piche apparently told an occupational therapist during an in-home examination on December 17, 2003 that Ms. Piche had "hit her head on the dash during the rollover."⁶ Third, his evidence was, in certain respects, impossible to reconcile with the experts' evidence, set out in greater detail below. He testified that the vehicle rolled over three times before coming to a rest. That was contrary to the expert evidence that the vehicle probably only rolled over once after entering the ditch because it only travelled another 3.1 metres before righting itself. Likewise, his evidence that he or Ms. Piche collided with the windshield, dashboard or steering wheel was contrary to the expert evidence that the accident did not thrust either the passenger or the driver forward and that, in any event, the driver would have only struck the steering wheel on being thrust forward, not the windshield or the dashboard.

Nevertheless, Mr. Piche's testimony that he injured his ribs when his body collided with the console between the seats was consistent with the expert evidence that, as a passenger, his seat belt would not have prevented him from being thrown to the left when the vehicle landed on the driver's side of its roof.

Moreover, I am not persuaded that Mr. Piche's overall credibility was challenged as effectively as Ms. Piche's. I was impressed by the fact that Mr. Piche readily admitted to the following less-than-admirable conduct and characteristics: that he effectively misled Ms. Piche about whether he ever had a driver's licence, that he had been convicted of impaired driving and spent 14 days in jail, that he defaulted on a child-support order, that he preferred not to drive because he would have a tendency to fly into "road rage", that he was not a good driver and that he nevertheless drove after the accident as shown in the surveillance tapes. I note further that the Piches were separated in March 2006, prior to the hearing, and that Mr. Piche testified the day after Ms. Piche. The conflicts in their evidence therefore tended to indicate that Mr. Piche was not trying to tailor his testimony to mimic Ms. Piche's testimony. In particular, Mr. Piche did not personally corroborate Ms. Piche's evidence that she had glass embedded in her hair on the left side, arguably as a result of her head going through the driver's door window. While he stated this as though it were a fact, he did not testify that he personally saw Ms. Piche's head collide with the driver's door window and he acknowledged that that he had not actually seen glass in her hair; he had only been told that by others.

The Expert Evidence

Mr. Gordon M. Jenish's Curriculum Vitae indicated that since graduating as a Mechanical Engineer in 1988, he has become a member of the following relevant associations: the Society of Automotive Engineers, the Canadian Association of Technical Accident Investigators and Reconstructionists, the (American) Society of Accident Reconstructionists and the Association for the Advancement of Automotive Medicine. It further indicated that in 1999, he became President of the Jenish Engineering Limited and in that capacity has continued to develop his expertise in accident reconstruction, injury biomechanics, seat belt usage assessments and injury causes. It listed his "related engineering experience" as including the study of child restraint systems using seat belts. It identified the following "relevant courses and seminars": "Crash Injury and Biomechanics", "Biomechanics of Accidents" and "Human Factors in Traffic Accidents." Under the heading "lectures and published articles", Mr. Jenish's CV mentioned the following titles: "Accident Biomechanics", "Injury Reductions in Motor Vehicle Accidents: Seatbelt Usage Still a Critical Factor."⁷ On examination by Mr. Kerr, he stated that "occupancy dynamics" were involved in approximately half of the 1300 investigations he has conducted to date.

In his report dated July 6, 2006, Mr. Jenish stated that Mr. Piche's injuries "were consistent with his left shoulder and upper body making a hard contact with the vehicle interior surfaces during the rollover." In his view, if Mr. Piche had been the driver, the driver's side of the roof striking the ground would have provided "the forceful contact necessary to dislocate Mr. Piche's left shoulder and fracture the left side ribs." He thought the likelihood was "extremely remote" that Mr. Piche could have suffered these injuries while a right front passenger. He wrote: "There were no hard interior surfaces to the left of the right front passenger seat which would have resulted [in] the forceful contact necessary to dislocate Mr. Piche's left shoulder and to result in the left side rib fractures."

As for Ms. Piche's injuries, Mr. Jenish's report noted that he was not given any medical records but that he did review the statement of an independent witness, Mr. Brian Goss, which apparently indicated that Ms. Piche "had head injuries with chest pain at the accident scene."⁸ His report offered a possible explanation as to how the passenger might have sustained head injuries. It stated: "... the right front passenger would have very likely made some initial contact with the right side interior surface of the vehicle, and then possibly some head contact with the roof liner, and possibly some contact with the driver's seat and the driver, as the passenger moved upwards and to the left during the ground impact to the left front portion of the roof." However, later in his report, Mr. Jenish appeared to acknowledge that Ms. Piche was more likely to sustain a head injury as the driver than as the passenger. He wrote: "Assuming that Ms. Piche was the driver as suggested, there very likely would have been some upper body contact with the left side interior surfaces, and with the roof structure, given the greater extent of roof collapse on the driver's side." Furthermore, the next sentence appeared to indicate that it was unlikely that Ms. Piche would, as a passenger, have suffered a head injury. It stated: "The minimal roof collapse on the passenger side and the absence of any hard interior surfaces for the right front occupant to contact as that passenger moved upward and to the left on impact were more consistent with Ms. Piche being seated in the right front passenger seat as opposed to the driver's seat at the time of the accident." ⁹

At the hearing, Mr. Jenish was asked to explain why, if Mr. Piche was the driver, his head was not injured by the greater roof crush on the driver's side. Mr. Jenish answered that since Mr. Piche's seat belt would have been over his left shoulder if he was driving, it could have prevented such an injury by effectively restraining him in his seat as he moved upwards and to the left on ground impact. In fact, Mr. Jenish testified, it could have been either the "loading" of Mr. Piche's weight into the shoulder strap or the hard contact with the driver's door that caused his shoulder injury. Mr. Jenish also stated that since the impact was lateral, not frontal, Mr. Piche could not have sustained this injury by being thrust forward into the dashboard though, if he had, he would have also sustained injuries to his face and head.

Dealing with Ms. Piche's injuries, Mr. Jenish testified that since her seat belt would have been over her right shoulder if she was the passenger, it would have been less effective in restraining her from moving upwards and to the left and that this would have created the opportunity for her to hit her head either on the roof or on the passenger's side of the vehicle when it righted itself and she "rebounded back into her seat." Mr. Jenish also stated that due to the broken windows and windshield, the inside of the vehicle would have been showered with shattered, tempered glass, thus explaining the presence of any glass in Ms. Piche's hair.

On cross-examination, Mr. Jenish agreed that Ms. Piche's complaints of chest pain were consistent with forceful restraint by a seat belt but he maintained that they were also consistent with a direct blow to the chest. After reviewing the medical reports at the hearing, he noted that they made no reference to seat belt markings on her chest. He further noted the abrasion to Ms. Piche's head may have been caused by her hitting the roof, not by shattered glass. As to Mr. Piche's injuries, he agreed that if Mr. Piche was the passenger, the console would have been located below his shoulder height, closer to his fractured lower ribs. He acknowledged that the injury more commonly caused by seat belt restraint is a fractured clavicle, not a separated shoulder. He also agreed that Mr. Piche would have, as a passenger, been thrown to the left and could have collided with the driver's seat. However, he maintained that it was unlikely that such a collision would have caused Mr. Piche's shoulder dislocation or separation because the seat would have been padded and tapered. He agreed that it was more likely that the driver would be injured by shattered glass than the passenger and that it was a "bit unusual" that Mr. Piche was not injured in this way if he was the driver but, he maintained, this was not impossible.

On re-examination, Mr. Jenish maintained that Mr. Piche's rib fractures could have been caused by a collision with the inside of the driver's door. He also stated that shattered glass would be more likely to become attached to a person with longer hair. I note that at the time of the hearing, Mr. Piche had short hair.

In response to my questions, Mr. Jenish acknowledged that he had never seen or heard of a seat belt causing a separated shoulder injury. Still, he maintained that Mr. Piche's injury was more likely caused by his collision, as the driver, with the driver's door than by his collision, as the passenger, with the driver's seat because the former would have provided greater resistance. He acknowledged that the ambulance and hospital records for Mr. Piche made no reference to seat belt markings. Finally, he was unable to say whether a separated shoulder injury was more consistent with the shoulder striking a relatively flat surface, like a driver's door, or an anchored object surrounded by space, like a driver's seat.

Mr. Jeff Archbold's Curriculum Vitae indicated that after becoming a mechanical engineer in 1992, he obtained a Master of Applied Science in 1999 in a Faculty of Metallurgy and Material Science. It stated that he has been employed at Walters Forensic Engineering Inc. since 2001 and specialized in accident reconstructions, mechanical failures, and accidents involving biomedical and human factors." However, the other employment activities, memberships, seminars, articles, and courses listed in Mr. Archbold's CV did not deal specifically with automobile accident reconstruction¹⁰ and he acknowledged at the hearing that he had not taken any courses or seminars in the occupancy dynamics of automobile accidents. He stated that in arriving at his opinion in this case, he relied upon his formal training and the practical experience gained from being involved in the investigation of between 50 and 150 car crashes. While I rejected Mr. Kirby's challenge to Mr. Archbold's right to give opinion evidence as an expert, there can be no doubt that he possessed less impressive qualifications in the fields of automobile accident reconstruction and occupancy dynamics than did Mr. Jenish.

In his report, dated April 11, 2007, Mr. Archbold agreed with Mr. Jenish that Mr. Piche's dislocated left shoulder and fractured ribs were "typically consistent with striking a hard surface with the upper left side of the body." Nevertheless, in Mr. Archbold's opinion, Mr. Piche's injuries were only consistent with his having struck the driver's side of the vehicle if other evidence was excluded. The other evidence he referred to included the following. First, since the roof crush on the driver's side was greater than on the passenger's side, the driver would have been more likely to sustain head injuries than the passenger. Second, since Mr. Piche was nine inches taller than Ms. Piche, his head would have been closer to the roof than Ms. Piche's and hence more susceptible to injury from roof crush than Ms. Piche's. Third, despite the first two observations, only Ms. Piche sustained a head injury. Fourth, since, in a rollover onto the driver's side, the shoulder strap of the driver's seat belt would have provided more effective restraint than the shoulder strap of the passenger's seat belt, the driver would have been more likely to sustain injuries consistent with shoulder strap "loading" than the passenger. Fifth, the chest injury Ms. Piche sustained was consistent with shoulder strap loading. Sixth, since, as the passenger, Mr. Piche would have been less effectively restrained, he could have sustained his injuries by striking "the driver's seat, or other interior surface of the vehicle."¹¹

On examination-in-chief, Mr. Archbold stated that Mr. Piche could have been the passenger and still incurred injuries on his left side by striking the console between the seats, the driver's seat or by putting up his left arm during the rollover.

On cross-examination, Mr. Archbold agreed that a left shoulder injury is consistent with the injured person having been the driver or, put differently, that being a driver is a likely way to sustain that injury. He agreed that Mr. Piche could not have injured his shoulder by striking the console. He agreed that the driver's seat would have been padded and that hitting it was, therefore, less likely to have been the cause of Mr. Piche's injuries. He agreed that he did not know whether or not Mr. Piche put up his left arm during the rollover. He agreed that if Ms. Piche was the driver, she could have only hit her head on the steering wheel, not on the dashboard. He agreed that in a rollover, neither the passenger nor the driver was likely to hit the dashboard. He agreed that without Ms. Piche's head injury, he could not say which side of the vehicle she was sitting on.

Analysis and Conclusion

In order to discharge its burden of proof, Allstate had to do more than successfully impeach Ms. Piche's credibility. Hers was not the only evidence presented at the hearing. All the evidence must be considered and, taken as a whole, it may establish on the balance of probabilities that Ms. Piche was driving the vehicle at the time of the accident. I so find for the following reasons.

First, I find that the Piches were probably both fully aware that Mr. Piche did not have a driver's licence and could not, for that reason, have driven himself back and forth between Barrie and Elmvale on the eve and the day of the accident. Of course, that finding does not rule out the possibility that Mr. Piche was driving at the time of the accident but it tends to support a finding that the Piches conducted themselves at the time of the accident in accordance with their knowledge that Mr. Piche should not drive because he did not have a licence.

Second, I am not persuaded that Mr. Piche's credibility was undermined to the point that all his evidence should be disregarded. In my opinion, his testimony that he was not driving was worthy of being assigned some weight. Moreover, while I cannot rely upon much of his description of how he and Ms. Piche were injured in the accident, his testimony that he did not injure his head was supported by the medical records and his testimony that he injured his ribs when his body collided with the console between the seats was consistent with the expert evidence.

Third, I do not need to rely upon the testimony of either Mr. or Ms. Piche to find that Ms. Piche sustained an abrasion to the left side of her head. That finding is supported by the medical records and by the statement of the independent witness that she had sustained head injuries. I note further that this finding does not depend on my accepting Ms. Piche's evidence that she had pieces of glass embedded in her hair on the left side of her head. She could have suffered an abrasion to the left side of her head without getting pieces of glass embedded in her hair.

Fourth, I find that Mr. Archbold's report provided a more cogent explanation of the head injury sustained by Ms. Piche and not sustained by Mr. Piche. Mr. Archbold concluded that it was likely that Ms. Piche sustained a head injury because she suffered the consequences of greater roof crush on the driver's side, consequences which, as a taller person, Mr. Piche would have been even more likely to suffer had he been the driver.

As previously noted, Mr. Jenish's report failed to provide an equally cogent and persuasive explanation of Ms. Piche's head injury. Furthermore, I have difficulty accepting his explanation at the hearing as to why, if Mr. Piche was the driver, his head was not injured by the greater roof crush on the driver's side. On examination-in-chief, he said that the shoulder strap over the driver's left shoulder could have prevented such an injury and indeed, that the "loading" of Mr. Piche's weight into the shoulder strap could have caused his shoulder injury. On cross-examination, when asked whether seat belt restraint was not also consistent with Ms. Piche's complaints of chest pain, he agreed that it was but then pointed to the absence of any reference to seat belt markings in Ms. Piche's medical records, clearly suggesting that she had not been forcefully restrained. However, Mr. Jenish acknowledged that he could have made the same observation based on Mr. Piche's medical records. More perplexing, he admitted that he had never seen or heard of a shoulder separation being caused by seat belt restraint. Coming from a witness of his substantial expertise and experience, I find it troubling that he was prepared to identify a cause for Mr. Piche's shoulder injury which he had never seen or heard of before.

Fifth, as I understood his opinion, Mr. Archbold only agreed that, in the absence of other evidence, it was more likely that Mr. Piche's shoulder and rib injuries were caused by the left side of his body striking the hard surface of the driver's door, that is, that he was the driver. In view of the head injury sustained by Ms. Piche and not sustained by Mr. Piche, Mr. Archbold came to the conclusion that Mr. Piche's other injuries were more likely caused by the left side of his body striking the padded driver's seat or some other interior surface of the vehicle, that is, that he was the passenger.

Finally, in my opinion, the evidence presented at the hearing did not establish that it was any more likely that Mr. Piche's injuries were caused by his body striking the driver's door than by his body striking the padded driver's seat or "other interior surface of the vehicle." As for his rib injuries, the expert evidence is consistent with Mr. Piche's testimony that he sustained these injuries by striking the console between the seats. As for his shoulder injury, I note that Mr. Jenish was unable to say whether a separated shoulder injury was more consistent with the shoulder striking a relatively flat surface, like a driver's door, or an anchored object surrounded by space, like a driver's seat. I further note that neither expert had access to physical evidence about how the driver's seat in question was tapered, padded or anchored.

Since it bore the onus of proof, Allstate had to do more than establish that it was as likely as not that Mr. Piche was driving; it had to establish that it was more likely than not that Mr. Piche was driving. In my view, the evidence, taken as a whole, supports the finding that it was more likely than not that Ms. Piche was driving the vehicle involved in the accident of November 14, 2003.

EXPENSES:

If the parties are not able to agree on expenses of this Preliminary Issue Hearing, they will follow the procedure set out in the Dispute Resolution Practice Code, 4th edition.

August 3, 2007

David Leitch Arbitrator

Financial Services Commission of Ontario