Berta Avdeeva v. Motor Vehicle Accident Claims Fund, 2010 ONFSCDRS 141

Financial Services Commission of Ontario

Neutral Citation: 2010 ONFSCDRS 141

FSCO A09-000660

BETWEEN:

BERTA AVDEEVA Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND Insurer

REASONS FOR DECISION

Before: Robert Bujold

Heard: March 15, 16, 17, May 10, 11 and 12, 2010, at the offices of the Financial Services Commission of Ontario in Toronto A telephone conference call was held on May 14, 2010 Written submissions were received on May 19 and 21, 2010

Appearances: George Pronay and Vadim Malyshev for Mrs. Avdeeva Lorraine Takacs for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Berta Avdeeva, alleges that she was injured in a motor vehicle accident on September 2, 2007. She applied for statutory accident benefits from Motor Vehicle Accident Claims Fund (“MVAC Fund”), payable under the Schedule.¹ MVAC Fund has not paid any benefits to Ms. Avdeeva, maintaining that she failed to establish that she was involved in a motor vehicle accident, as defined in section 2 of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Avdeeva applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Was Ms. Avdeeva involved in an “accident” on September 2, 2007 within the meaning of the Schedule?

Result:

1. Ms. Avdeeva was involved in an “accident” on September 2, 2007 within the meaning of the Schedule. Ms. Avdeeva is not precluded from proceeding to arbitration on her claims for accident benefits.

OVERVIEW:

Ms. Avdeeva’s position

On the evening of September 1, 2007, Ms. Avdeeva attended a wedding reception at National Restaurant located on the west side of the commercial building known as 1000 Finch Avenue West. She attended the reception with her two sisters, Ritta Anshilevich and Irina Daounova. There were an estimated 300 guests at the reception.

The unusual circumstances that transpired toward the end of the evening are discussed below in some detail. In brief, Ms. Avdeeva maintains that, after leaving the reception at approximately 2:00 a.m. (September 2, 2007), she came to be standing beside a taxi van stopped in the laneway outside the restaurant. She was holding the arm of a young man who had his head inside the driver’s window. The young man appeared to be quite drunk and Ms. Avdeeva was trying to dissuade him from bothering the driver. Suddenly, the van drove off and Ms. Avdeeva was hit and knocked to the ground.

Ms. Avdeeva maintains that, as a result of the incident, she sustained a laceration behind her right eyebrow and lost consciousness for a short time. She also maintains that she suffered cuts and scrapes to both of her knees and hands, and her left hand was swollen. Ms. Avdeeva testified that following the incident, she started to experience pain “everywhere.” Ms. Avdeeva attended at York Central Hospital with her two sisters, but they left before Ms. Avdeeva was assessed or treated, as they had waited for an estimated 1 ½ to 2 hours without being seen by a doctor. Ms. Avdeeva testified that she felt very tired and couldn’t bear to wait any longer. After leaving the hospital, Ms. Avdeeva was taken to Ms. Anshilevich’s home where Ms. Anshilevich cleaned and dressed her cuts and scrapes. Ms. Avdeeva stayed with Ms. Anshilevich for approximately two weeks after the incident. Ms. Avdeeva saw her family doctor, Dr. Galina Portnoi, on September 4, 2007. Ms. Avdeeva began receiving treatment from Top Rehab Inc. in late October 2007.

Ms. Avdeeva maintains that the incident involving the van in the early hours of September 2, 2007 was an “accident” for the purposes of the Schedule.

MVAC Fund’s position

MVAC Fund points out that the definition of “accident” in section 2 of the Schedule requires that Ms. Avdeeva establish that she was involved in “an incident in which the use or operation of an automobile directly causes an impairment…” Although MVAC Fund agrees that the “objective evidence of independent third parties” confirms that Ms. Avdeeva fell on the night in question, it denies that Ms. Avdeeva has established, on a balance of probabilities, that the use or operation of an automobile directly caused her fall.

Notwithstanding witness accounts put forward to corroborate Ms. Avdeeva’s version of events, MVAC Fund submits that I should not accept that Ms. Avdeeva fell as a direct result of the van. MVAC Fund points to the lack of a police report and the delay of nearly eight weeks in making a claim. MVAC Fund also points to what it characterizes as a lack of cooperation from Ms. Avdeeva, including delays in providing MVAC Fund with witness information. MVAC Fund maintains that Ms. Avdeeva’s conduct has prejudiced MVAC Fund in its investigation of the incident.

MVAC Fund also points to inconsistencies between Ms. Avdeeva’s evidence and the medical and other documentation, including the fact that neither the York Central Hospital records nor Dr. Portnoi’s clinical notes refer to an automobile, but simply refer to a “fall.”

MVAC Fund further maintains that the corroborating evidence of Ms. Avdeeva’s two sisters, Ritta Anshilevich and Irina Daounova, should be discounted or entirely disregarded on the basis that they are not objective witnesses and further that they did not have a clear view of what transpired between Ms. Avdeeva and the van. As for the evidence of Semion Tounian, MVAC Fund also questions his ability to have accurately observed what transpired based on lighting conditions and his distance from the fall.

As for Ms. Avdeeva’s evidence, it was not entirely clear whether MVAC Fund was taking the position that she intentionally gave evidence which she knew to be untrue or whether she simply misremembers what actually happened in the early hours on September 2, 2007. Whatever the reason, it is MVAC Fund’s position that the version of events put forward by Ms. Avdeeva and her witnesses should not be accepted. In short, MVAC Fund maintains that Ms. Avdeeva failed to tender sufficient credible and reliable evidence upon which I can conclude that she was involved in an “accident.”

MVAC Fund alludes to other possible causes for the fall, including some evidence suggesting that Ms. Avdeeva consumed alcohol at the reception (albeit a small amount) or that the fall may be related to her diabetic condition. There was also some evidence from MVAC Fund’s investigator that the pavement in the parking lot may have been uneven and in poor condition, at least when he attended at the premises in 2010.

In the event that I should find that Ms. Avdeeva was likely injured by the van, MVAC Fund also maintains that Ms. Avdeeva failed to tender sufficient medical or other evidence upon which I can reasonably conclude that she sustained an “impairment” as a result of the incident which, as noted, is a constituent element of the definition of “accident” set out in section 2 of the Schedule.

MVAC Fund also submits that Ms. Avdeeva’s delay in giving notice of her intention to claim a benefit, and her failure to provide a reasonable explanation for the delay, amounted to a complete defence to her claims.

MVAC Fund did not call any witnesses, other than an investigator, Mr. Harold Schlesinger, whose evidence was limited to observations he made of the property at 1000 Finch Avenue West when he attended at the location mid-morning on January 18, 2010. Mr. Schlesinger’s evidence included photographs and hand-drawn diagrams.

EVIDENCE AND ANALYSIS:

Much of this case turns on the credibility and reliability of the evidence given by Ms. Avdeeva and her witnesses. While there are clearly some inconsistencies and contradictions in the evidence, they are not sufficient to counter the preponderance of the evidence, when considered as whole, that Ms. Avdeeva was knocked to the ground by the van and suffered injuries and impairments as a result. For the reasons that follow, I am satisfied that Ms. Avdeeva was involved in an “accident” for the purposes of the Schedule.

I will begin my analysis with some background on Ms. Avdeeva followed by a review of her evidence as it relates to the circumstances of the evening in question and shortly thereafter. I will then review the corroborative evidence of her witnesses, and the accounts of witnesses captured in the adjuster’s notes.

Following this, I will review Mr. Schlesinger’s evidence. I will then examine some of the inconsistencies and shortcomings in Ms. Avdeeva’s evidence, as well as MVAC Fund’s contention that Ms. Avdeeva did not cooperate with its investigation of the incident. I will explain why these considerations were not sufficient to persuade me that Ms. Avdeeva’s fall was likely due to some other cause. I will also explain why I reject MVAC Fund’s further argument that Ms. Avdeeva failed to prove that she sustained an “impairment.” Finally, I will deal with MVAC Fund’s argument that it need not respond to Ms. Avdeeva’s claims because she delayed in notifying MVAC Fund of the incident without reasonable explanation.

Background

Ms. Avdeeva was born in 1952 in the former Soviet Union and arrived in Canada with her 17 year old son in December 1990. Ms. Avdeeva was motivated to come to Canada to avoid compulsory military service for her son at age 18.

Upon coming to Canada, Ms. Avdeeva took English as a second language (“ESL”) courses and, in or about 1998, she obtained part-time work with the Canadian National Exhibition (“CNE”) as a card dealer, and subsequently as a supervisor, at the Exhibition Place Casino. It is a position she held to the date of the incident, September 2, 2007. It was also in or about 1998 that Ms. Avdeeva’s son returned to Russia to work for his uncle. Ms. Avdeeva has lived on her own since 1998.

With the assistance of Jewish Child and Family Services, Ms. Avdeeva applied for and began receiving disability payments through the Ontario Disability Support Program (“ODSP”) in or about 2000. Ms. Avdeeva identified problems with her hearing as the primary issue that led to the application for ODSP. She also identified depression that had been a problem since before her son’s return to Russia. Ms. Avdeeva maintains that her depression was improved at the time of the incident. Her son seemed to be doing well in Russia and her own life conditions had improved.

In addition to her work at the CNE, Ms. Avdeeva testified that she did an average of 3 hours per week of volunteer work for her local synagogue, including communicating with the membership and preparing for feasts and celebrations.

Ms. Avdeeva’s evidence

With respect to incident in question, I have already noted that Ms. Avdeeva attended a wedding reception with her two sisters, Ritta Anshilevich and Irina Daounova, on the evening of September 1, 2007. The reception was held at National Restaurant which has its entrance located on the west side of the building at 1000 Finch Avenue West. There is a parking lot running along the west side of the building.

Ms. Avdeeva testified that she and her two sisters arrived at the reception in Ms. Anshilevich’s car. They arrived around 8 p.m. Upon arriving, Ms. Anshilevich parked her car approximately 15 meters northwest of the entrance to the restaurant. She backed her car into the parking space, so the car was facing the building housing the restaurant.

Ms. Avdeeva testified that she knew many people at the reception. The groom was a friend of her son. She sat at a table with her sisters and several others, including another friend of her son, Renat Mataev, and his mother. Ms. Avdeeva recounted that much food was served throughout the evening and she recalled eating salad, lox and shish kebab. She also had fruit, drank a lot of tea and sipped on water. Ms. Avdeeva stated that she is “sure” that she did not drink any alcohol, specifically recalling that she had taken medication for diabetes before going to the reception.

According to Ms. Avdeeva, she and her sisters left the restaurant at approximately 2 a.m. Several other people were also leaving at that time and many others were outside the entrance of the restaurant smoking.

When Ms. Avdeeva left the building, she turned right (north) and within a few meters came across another friend of her son, Gesha, who appeared to be quite drunk. He was with his wife and they were arguing. Gesha’s wife had pictures in her hand. She threw the pictures and walked away (north). At that same time, another unknown male guest had left the restaurant and was walking north, not far behind Gesha’s wife. Gesha then followed after the man and called out “why are you following my wife?” The man seemed taken by surprise and responded that he was simply walking to his car. Ms. Avdeeva followed Gesha and recalled telling the man “don’t pay attention to Gesha as he is very drunk.” She also recalled that Ms. Anshilevich and Ms. Daounova were following close behind, and Ms. Daounova told the unknown male guest to please go back to the restaurant, which he did. By this time, Gesha’s wife had walked up the west side of the building and turned right (east) behind its north side.

Shortly after the altercation with the unknown male guest, a van with a sign on top of it with the word “taxi” came from behind the north side of the building. It travelled south along the west side of the building toward the restaurant. Gesha stepped out in front of the van, which Ms. Avdeeva recalls as travelling rather fast, and yelled “stop, stop.” The driver stopped the van and Gesha walked around to the driver’s window. Ms. Avdeeva followed Gesha. The driver rolled down his window and Gesha stuck his head inside the vehicle through the window. According to Ms. Avdeeva, Gesha then spoke to the driver saying something like “kiss me.” Ms. Avdeeva responded by telling the driver not to pay attention to Gesha as he was drunk. She asked the driver to give her a couple of seconds and she would get him to move. At that point, Ms. Avdeeva stated that she had both of her arms around Gesha’s right arm. She was pulling on his arm and saying “Gesha, let’s go.” She was standing to Gesha’s right, alongside the vehicle. She believes she may have leaned into the vehicle as she pulled on Gesha’s arm.

Despite Ms. Avdeeva’s request, the van suddenly began to move. Ms. Avdeeva was still holding onto Gesha’s arm at that moment and she recalls running two or three steps yelling out “wait, wait, wait.” As the van accelerated away, she recalls being hit on her right side and knocked to the ground.

Ms. Avdeeva claims that she lost consciousness, and her next recollection is sitting on a sidewalk a few meters north of the restaurant surrounded by several people talking and attending to her. She heard an unidentified woman say “she has hole in her head 4 cm long.” She recalls one guest, Rami Rahaminov, got ice, while Semion Tounian provided her with a napkin to clean her forehead. There were many others around her and she heard several suggestions – to call the police, to call an ambulance, to go to the hospital. Mr. Rahaminov offered to take her to the hospital.

Ms. Avdeeva testified that she was bleeding from a cut near her hairline behind her right eyebrow. She also had abrasions to both hands and her knees were “frozen.” She testified that she did not want to call the police or an ambulance. She was worried that because Gesha was very drunk, he would be blamed for the incident and get in trouble. Instead, she agreed to attend at a hospital with her sisters.

Ms. Anshilevich drove to York Central Hospital (YCH) with Ms. Avdeeva in the front passenger seat and Ms. Daounova in the back seat. Ms. Daounova was familiar with YCH as it was not far from her home. When they arrived at the emergency entrance, Ms. Anshilevich and Ms. Daounova helped Ms. Avdeeva out of the car. Ms. Daounova attended at the registration desk with Ms. Avdeeva while Ms. Anshilevich parked the car. Ms. Avdeeva recalls being asked a few questions and having her blood pressure and temperature taken. She was then told to take a seat. Ms. Avdeeva does not remember speaking to anyone at the hospital other than the intake nurse at the registration desk.

The emergency department record from YCH refers to the “chief complaint” as “fall.” There is also reference to a loss of consciousness with the remark “doesn’t remember why.” There is a further notation “came out of party & fell – was drinking small amt of alcohol.”

Ms. Avdeeva could not recall whether she was asked about how she came to be injured, but on cross-examination, Ms. Avdeeva admitted that she may have told the nurse that she came out of a party and fell. Ms. Avdeeva explained that she understood the police would become involved if they knew she had been hit by a car. Ms. Avdeeva was adamant, however, that she had not drank any alcohol or told the registration nurse that she had drank alcohol. I will reference the inconsistency between Ms. Avdeeva’s evidence and the YCH notes later in these reasons.

Ms. Avdeeva testified that after waiting 1 ½ hours only one patient had been called and she could not bear to wait any longer, so she asked her sisters to take her home. As mentioned above, Ms. Avdeeva was taken to Ms. Anshilevich’s home where Ms. Anshilevich cleaned and dressed her cuts and abrasions. Ms. Avdeeva stayed with Ms. Anshilevich for approximately two weeks.

Ms. Avdeeva attended at her family doctor, Dr. Galina Portnoi, on September 4, 2007. Dr. Portnoi’s note for that attendance refers to a “fall... after being at the restaurant, on parking lot.” There is also reference to ongoing pain “after slip/fall accident” in a May 29, 2008 notation. However, while admitting that she may have told the intake nurse at YCH that she fell, Ms. Avdeeva was certain that she told Dr. Portnoi that she had been hit by a vehicle. As with the YCH records, I will refer again to this inconsistency later in these reasons.

Corroborating evidence of witnesses at the scene

Ms. Avdeeva called three witnesses who attended the wedding reception to give evidence on her behalf – her two sisters, Ritta Anshilevich and Irina Daounova, and an unrelated male guest, Semion Tounian.

The evidence of Ms. Anshilevich and Ms. Daounova were generally consistent with each other and the evidence of Ms. Avdeeva. Of note, they confirmed that they had consumed a variety of foods and that no alcohol had been consumed by any of the sisters. Ms. Anshilevich testified that she never drinks when she is driving. Ms. Daounova testified that she does not drink due to diabetes and high blood pressure. They both testified that they did not see Ms. Avdeeva drink any alcohol that evening.

Ms. Anshilevich and Ms. Daounova also confirmed that, after leaving the restaurant sometime between 1 and 2 a.m., they encountered Gesha who appeared very drunk. They confirmed that Gesha became upset with an unidentified male guest who Gesha mistakenly thought was following his wife. They confirmed that Ms. Avdeeva approached Gesha and, as Ms. Daounova put it, tried to “take him away.” They confirmed that Ms. Daounova asked the unidentified male guest to ignore Gesha and to please return to the restaurant to avoid further conflict.

Both sisters also related that a van with a taxi sign then approached from the north. Consistent with Ms. Avdeeva’s account, Ms. Anshilevich testified that Gesha yelled “stop, stop, stop.” According to Ms. Anshilevich, when the van stopped, Gesha and Ms. Avdeeva were on the passenger side of the van. Gesha went around to the driver’s side of the van with Ms. Avdeeva hanging onto Gesha’s arm “trying to keep him from doing anything.” Gesha then stuck his head in the driver’s window. Both Ms. Anshilevich and Ms. Daounova admitted that they were not close enough to hear what Gesha was saying to the driver.

At that point, Ms. Anshilevich and Ms. Daounova told Ms. Avdeeva that they were going to wait in the car which was parked close to where the van had stopped. When they walked away, Ms. Avdeeva was still holding onto Gesha’s arm. Once in her car, Ms. Anshilevich testified that she could not see much, but the thought came to her mind that Ms. Avdeeva could get hurt if the van moved. Ms. Daounova confirmed that Ms. Anshilevich had expressed concern that the van was going to move. At that same moment, the sisters testified that the van suddenly drove away and they saw Ms. Avdeeva on the ground. They testified that they immediately exited Ms. Anshilevich’s car and ran screaming toward Ms. Avdeeva. Ms. Anshilevich was afraid the wheels had run over Ms. Avdeeva. She thought Ms. Avdeeva was dead. Ms. Daounova testified that she was so upset she felt her legs give out. Ms. Anshilevich confirmed that Ms. Daounova fell to the ground and someone had to assist her.

Ms. Anshilevich and Ms. Daounova also testified that when they first observed Ms. Avdeeva on the ground, she was lying on her right side and appeared to be unconscious. In a few moments, Ms. Avdeeva started moving and she was helped to a sidewalk on the west side of the building. The sisters testified that Ms. Avdeeva was bleeding from a wound on the right side of her forehead and she had other scrapes and abrasions.

Both sisters testified that there were many people in the vicinity who gathered to offer assistance. Both identified Rami Rahaminov as the person who got ice. Both identified Semion Tounian being present, although neither could recall what he was doing specifically. Ms. Daounova simply referred to him as Semion and could not recall his last name. Ms. Anshilevich recalled that a woman commented that the wound on Ms. Avdeeva’s forehead was deep and should be seen by a doctor. Ms. Daounova recalled someone suggesting that the police and ambulance should be called.

Ms. Anshilevich and Ms. Daounova testified that Ms. Avdeeva did not want to involve the police and rather than calling an ambulance, Ms. Avdeeva wanted her sisters to take her to emergency.

Although she testified that she had returned from parking the car and was present when the registration attendant took information from Ms. Avdeeva, Ms. Anshilevich could not recall much of what was said. She did not believe that Ms. Avdeeva shared that she had been struck by a car, only that she fell. Ms. Anshilevich testified that she did not hear Ms. Avdeeva tell the attendant that she had consumed alcohol. As stated above, both sisters deny that Ms. Avdeeva consumed any alcohol that evening. Neither sister recalled Ms. Avdeeva speaking to anyone else at the hospital.

Both sisters confirmed that after nearly 2 hours of waiting to see a doctor, Ms. Avdeeva said that she could not bear to sit and wait any longer and asked her sisters to take her home. Ms. Anshilevich confirmed that she took Ms. Avdeeva to her own home where she cleaned and dressed Ms. Avdeeva’s wounds to her forehead, hands, legs and shoulder. She also confirmed that Ms. Avdeeva stayed with her for two to three weeks following the incident. According to Ms. Anshilevich, Ms. Avdeeva needed her assistance as she “could hardly walk” and suffered from bruising and headaches.

Finally, I note that both sisters were shown a photograph² of the laneway on the west side of 1000 Finch Avenue West and both pointed to the same area on the photograph, a few meters north of the entrance to the restaurant, where the incident involving the van took place. They also confirmed that the parking lot was well lit. In fact, Ms. Anshilevich and Ms. Daounova referred to lighting in the area as “bright” and “very bright” respectively.

I was generally favourably impressed with the evidence of both Ms. Anshilevich and Ms. Daounova. For all the similarities in their accounts, their evidence did not seem rehearsed. Further, both sisters appeared willing to admit when they did not know answers to questions and willing to admit facts that were not necessarily helpful to Ms. Avdeeva’s case. Both sisters admitted that they could not see what was happening on the driver’s side of the van as they sat in Ms. Anshilevich’s car. Ms. Daounova admitted that she could not see contact between Ms. Avdeeva and the van (although neither sister could envision how else Ms. Avdeeva could have landed on the ground, just as the van pulled away, other than Ms. Avdeeva being knocked to the ground by the van).

Notwithstanding my favourable impression of their evidence, I acknowledge MVAC Fund’s concern that Ms. Anshilevich and Ms. Daounova are not arms length witnesses and, as noted, the sisters did not have direct view of events in the moments leading up to and including the fall. Further, I note that there was a discrepancy between Ms. Anshilevich’s evidence at the hearing and a statement she signed on May 21, 2008 wherein it is recorded that “The taxi didn’t stop, it drove by, then I saw Berta on the ground.” When confronted with this discrepancy, Ms. Anshilevich responded multiple times that she “couldn’t tell such a thing.” She denied having an interpreter when the statement was taken and she did not recall reading through the statement before signing it. On this point, I prefer Ms. Anshilevich’s oral testimony over the statement. It is not only consistent with the evidence of her sisters, but also Mr. Tounian’s evidence that I will examine next. While not determinative, I also note that a poorly drawn diagram attached to the statement appears to show Gesha positioned at the driver’s window and Ms. Avdeeva directly beside him.

Though perhaps not the most independent and persuasive evidence, I still found Ms. Anshilevich and Ms. Daounova’s evidence sufficiently reliable and persuasive to constitute corroboration of Ms. Avdeeva’s version of events. However, as stated, it was not the only or the best corroborating evidence available.

Mr. Semion Tounian also attended the wedding reception. Mr. Tounian did not sit with Ms. Avdeeva and her sisters and could not say whether any of them were drinking. He is also diabetic and “doesn’t drink that much.” He estimated that he had three shot glasses between 7 and 10 p.m. He confirmed that he ate dinner and denied feeling any dizziness as a result of his diabetes.

Mr. Tounian testified that he smoked cigarettes at the time of the incident and, periodically throughout that evening, he went outside the restaurant entrance to smoke. At the end of the evening, Mr. Tounian testified that he was standing outside the restaurant entrance having his last cigarette before leaving. There were many people around as “everyone was leaving.” Mr. Tounian testified that, while standing outside the restaurant entrance, he noticed a man and a woman communicating with the driver of a van, perhaps 15 meters away from him. The van was a dark colour, perhaps brown. He did not immediately recognize the two people talking to the driver of the van and he could not hear what was being said.

As with the other witnesses, Mr. Tounian did not identify any issue with the lighting conditions outside the restaurant entrance or anywhere in the laneway running alongside the building. Mr. Tounian also testified that he does not require corrective lenses and nothing was obstructing the line of sight between him and the people standing beside the van.

Mr. Tounian testified that the van suddenly drove away quickly with the man hanging onto the driver’s window. The woman, who was standing next to the van and beside the man, was “pushed away” to the side and fell. The man, however, held on until the van braked a little, at which point the man jumped or let go and rolled.

Mr. Tounian also testified that when the woman fell, several people rushed over to her including himself and that is when he recognized the woman as Ms. Avdeeva. She had fallen on her right side and was bleeding from her forehead. She appeared to be unconscious when he first came up to her lying on the pavement. Several people began attending to her “to have her come to.” She soon regained consciousness. Mr. Tounian testified that two young men helped her to sit up. For his part, Mr. Tounian put a handkerchief on her head where she was bleeding. Since she was being attended to by relatives and acquaintances, he left soon after with his son.

On cross-examination, Mr. Tounian conceded that he could not say, for sure, that there was direct contact between Ms. Avdeeva and the van while she stood beside the van. However, he testified that Ms. Avdeeva was standing directly next to the van and possibly leaning on it. In response to whether Ms. Avdeeva may have just tripped or fallen, Mr. Tounian put it this way, “I was specifically looking at what was happening, as it happened. The van sped off, the man hung on, the woman was pushed away and fell.”

No evidence was led to suggest that Mr. Tounian is anything more than an acquaintance of Ms. Avdeeva or that he has anything to gain personally from the outcome of this proceeding. As stated, Ms. Daounova could not even recall his last name when she recounted some of the people who were present at the time of the incident. I find no reason to believe that Mr. Tounian’s view of Ms. Avdeeva was obstructed or that his powers of observation were materially compromised by poor lighting conditions or alcohol consumption. I found his answers to be direct, clear and generally consistent with the evidence of Ms. Avdeeva and her sisters.

In addition to the oral testimony of witnesses who were present at the time of the incident, the claim notes of Mr. Calin Lau, senior accident benefits specialist with CGI Adjusters Inc. (“CGI”),³ record telephone discussions with two other persons who were apparently on scene during the incident. I recognize that neither of these persons were called as witnesses and their accounts, as they are recorded in the notes, appear to contain inconsistencies. As well, the telephone discussions took place several months after the incident. As such, I do not place much weight on these untested accounts. I also note that neither party chose to call Mr. Lau to give evidence. Still, I find it pertinent to point out for corroborative purposes where these two accounts are not only consistent with each other, but also consistent with the accounts of Ms. Avdeeva, her sisters and Mr. Tounian.

The May 20, 2008 entry of the telephone discussion between Mr. Lau and Mr. Renat Mataev notes “... He saw a taxi driver driving a minivan. He think [sic] the dress of a lady got caught in the van when he speed [sic] off. The lady felt [sic] to the ground... . She had a little bleeding from her arms and forehead and some bruises too... .”

The May 20, 2008 entry of the telephone discussion between Mr. Lau and Rami Rahaminov notes “... He remembers the accident related to a taxi. The taxi drove away and the lady fell on the ground. The taxi didn’t come back as far as he can remember. Rami sent somebody to bring the ice to the lady. The lady’s mind became okay 10-15 minutes after the accident. Lot [sic] of people there. She was bleeding from her forehead and leg too. She had injuries to her back and shoulder too, he believes. He does not remember exactly who drove her away, may be a lady... .”

In his account, Mr. Mataev did not believe that Ms. Avdeeva had been rendered unconscious as a result of her fall. He also believed that the driver of the van returned to see if Ms. Avdeeva needed a ride to a hospital. Mr. Mataev also thought he had given Ms. Avdeeva a drive home. For his part, Mr. Rahaminov recalled that the incident took place before midnight, perhaps 9 or 10 p.m. While these details are clearly inconsistent with the oral testimony, I find the inconsistencies less telling than the fact that both accounts relate that an incident took place between Ms. Avdeeva and the van that resulted in her fall to the ground. In that respect, they are consistent with the evidence of Ms. Avdeeva, her sisters and Mr. Tounian.

Notwithstanding the eyewitness accounts, MVAC Fund submits that Ms. Avdeeva’s failure to report the incident to the police, apparent inconsistencies in the medical and other documentary evidence and Ms. Avdeeva’s alleged lack of co-operation should override the eyewitness accounts and lead me to conclude that she was not involved in an “accident.” For the reasons that follow, I disagree. However, before I examine MVAC Fund’s concerns, I will review the evidence of MVAC Fund’s one witness, Mr. Harold Schlesinger.

Mr. Schlesinger’s evidence

MVAC Fund retained Mr. Schlesinger to help investigate Ms. Avdeeva’s claim that she had been involved in an accident. In connection with his investigation, Mr. Schlesinger attended at 1000 Finch Avenue West on one occasion, i.e. approximately 9:30 or 10 a.m. on the morning of January 18, 2010, more than two years post-accident.

MVAC Fund had not served a report from Mr. Schlesinger within 30 days of the re-scheduled start date of this hearing, i.e. March 15, 2010. I did not receive evidence of what I considered “extraordinary circumstances” to account for the delay and, as a result, I was prepared to exclude Mr. Schlesinger’s evidence. However, given that he had taken photographs of the premises that could facilitate the evidence of the other witnesses, Mr. Schlesinger’s photographs were accepted into evidence. On consent of Ms. Avdeeva, I also allowed Mr. Schlesinger to give oral testimony related to the photographs and what he observed when he attended at the premises.

On his attendance at the premises, Mr. Schlesinger observed five light standards on the west side of the laneway that runs north/south along the length of the west side of the building where National Restaurant is located. He also noted that there was a light in front of the restaurant and believes there was a light in front of GoodLife Fitness to the north of the restaurant. Mr. Schlesinger gave evidence regarding the location of the light standards and the distances between them which he determined using a measuring wheel. However, as he attended during the day, Mr. Schlesinger could not speak to the lighting conditions provided by the light standards and other lights at night.

Mr. Schlesinger also noted that portions of the pavement on the west side of the building were not in a state of good repair. There was some heaving and cracks. As he put it, “there were good parts and bad parts.” However, he did not turn his mind to exactly where the bad parts were, so he could not say whether the pavement was in good or bad condition where the incident took place.

As a result of the foregoing, I did not find Mr. Schlesinger’s observations of the premises helpful in determining whether or not an accident took place on the night in question.

Mr. Schlesinger did note that what appeared to be surveillance cameras attached to the building at various locations, including cameras at the south and north ends of the west side of the building that may have recorded the incident or captured an image of the van.⁴

Surveillance evidence may have been available had Ms. Avdeeva reported the incident to the police. It is unfortunate that she did not report the matter. However, for the reasons that follow, I am not persuaded that Ms. Avdeeva’s reluctance to call the police, or provide information to persons in authority that may have led to the police becoming involved, should lead me to conclude that the incident did not take place. Nor am I persuaded that MVAC Fund’s several other concerns arising from the evidence are sufficient to counter the eyewitness accounts that Ms. Avdeeva was involved in an accident. I will now examine MVAC Fund’s concerns.

MVAC Fund’s concerns arising from the evidence

No police report

In addition to surveillance that may have been obtained had Ms. Avdeeva reported the incident to the police, MVAC Fund submits that an investigation by the police would have provided other valuable information, such as witness statements taken shortly after the incident. However, the issue here is not whether a police report would have been helpful, but whether Ms. Avdeeva’s failure to report the incident to the police should be taken as impugning her credibility. I am not persuaded that it does.

Ms. Avdeeva explained her reticence to involve persons in authority as stemming from her life in the former communist Soviet Union where, she explained, it was “not a secret” that a knock on the door in the middle of the night by the authorities could result in being arrested and taken to Siberia. While not suggesting that anything remotely similar would happen here, Ms. Avdeeva did explain that she was worried that, because Gesha was “very drunk,” the police would view the incident as his fault; that he would be seen as the “guilty person.”

While Ms. Avdeeva has not had any particularly negative experiences with the police or persons in authority in Canada,⁵ I find it entirely plausible that it is still her culturally ingrained bias to avoid involving police as far as possible, particularly when to do so could get someone in trouble.

No reference to a motor vehicle in records of YCH and Dr. Portnoi

I find that Ms. Avdeeva’s reluctance to get Gesha in trouble also explains why there is no reference to a motor vehicle in the records of YCH. Ms. Avdeeva admitted as much. I accept her evidence that she believed the police would have been called if the hospital were told that she had been hit by a car.

The absence of any reference to a motor vehicle in the clinical notes of Dr. Portnoi is somewhat more problematic. Ms. Avdeeva insists that she told Dr. Portnoi that she was hit by a car. I am not convinced that she did. I find it somewhat incredulous that Dr. Portnoi would have omitted this rather important detail.

At the same time, a report from Dr. Grigory Karmy⁶ dated February 15, 2008 (contained in Dr. Portnoi’s records) thanks Dr. Portnoi for referring Ms. Avdeeva to him. Dr. Karmy characterizes the purpose of the referral as “consultation and management of [Ms. Avdeeva’s] head, neck, bilateral shoulder, bilateral arm, upper back, lower back and bilateral hip pain.” In the section of his report titled “History of presenting illness,” Dr. Karmy reports that Ms. Avdeeva was hit by a car on September 2, 2007. While this information may have been obtained from Ms. Avdeeva and could be viewed as self-serving, the point is that Dr. Portnoi would have been in possession of Dr. Karmy’s report when she met with Ms. Avdeeva on May 29, 2008. Therefore, it does raise the question of why Dr. Portnoi would still be referring to the incident as a “slip/fall” in May 2008.⁷

In any case, even if Ms. Avdeeva did not initially disclose to Dr. Portnoi that she had been knocked to the ground by a motor vehicle, I find this to be consistent with her initial reluctance to share any more information about the incident than she believed necessary. I note that on cross-examination, Ms. Avdeeva suggested that she did not believe that it was particularly important for the intake nurse at YCH to know that she had been hit by a car. As Ms. Avdeeva put it, “they could see what I looked like.” Similar thinking may have been in play when Ms. Avdeeva met with Dr. Portnoi.

Documents indicating no witnesses

Another puzzling matter arising from the evidence is the fact that the Initial Interview form, prepared by Ms. Avdeeva’s legal representative, Vadim Malyshev, when he first met with her on October 16, 2007, does not contain any information in the section titled “Witness.”⁸ Further, in a letter to the adjuster dated November 19, 2007, Mr. Malyshev states “Please note that there were no witnesses at the scene of the accident.”⁹

As for the Intake Interview form, I note that it contains very little information and some inaccuracies. For example, the section titled “Identity of children” is stroked out. We know that Ms. Avdeeva has a son. Under both “Accident Details – Description” and “Employment Information,” there is a notation “see enclosed sheet.” No sheets were attached in the document brief, so I am unable to say what additional information those sheets may have contained. The section on “Injuries” is also left blank.

I also note that the section titled “Witness” is actually a subheading of a main heading entitled “Police Information.” The handwritten note beside that main heading states “Not reported to police.” The entire section is left blank.

Ms. Avdeeva maintained that she would have provided Mr. Malyshev with all relevant information at the initial interview, including the fact that there were witnesses, and could not explain the lack of witness information on the Intake Interview form. Ms. Avdeeva offered that she is not a lawyer and “does not know what needed to be written down.” Ms. Avdeeva was also unable to explain why Mr. Malyshev’s letter to the adjuster would have included a statement that there were no witnesses to the accident, responding that “he knew very well that there were witnesses.”

I do not put much weight on the Intake Information form, given its noted deficiencies. Mr. Malyshev’s letter of November 19, 2007, however, is difficult to reconcile with Ms. Avdeeva’s evidence. It is possible that Mr. Malyshev may have relied on the Intake Information form when he prepared his letter to the adjuster a month later, failing to note witness information in some other part of the file (such as the description of the accident that was apparently recorded on a separate sheet). It is also possible that Ms. Avdeeva may have held back volunteering witness information at this initial consultation in the hope that she would not have to involve others in her claim, possibly still concerned that Gesha could get in trouble for his part.

Whatever the explanation for the omission in the Intake Information form, I am not persuaded that much turns on the apparent discrepancy. Whether Ms. Avdeeva failed to convey witness information to Mr. Malyshev when she first met with him or Mr. Malyshev failed to convey accurate information in his letter of November 29, 2007, Ms. Avdeeva clearly set the record straight when she provided her statement to MVAC Fund’s independent adjuster on January 16, 2008 that “a lot of people” had been in the vicinity of the incident. I accept that several people were in the area at the time of the incident. This fact is supported by the accounts of not only Ms. Avdeeva and her sisters, but Mr. Tounian, Mr. Rahaminov and Mr. Mataev. The issue therefore is really one of delay in communicating the fact of potential witnesses, a delay of approximately six weeks between the date of Mr. Malyshev’s letter and the date of Ms. Avdeeva’s statement. While unfortunate, I do not view the delay as having much bearing on the question of whether Ms. Avdeeva was involved in an “accident.” On that question, it is the credibility and reliability of the witness accounts that matter.

Other inconsistencies

I recognize that there were some other inconsistencies in the evidence, such as the fact that Ms. Avdeeva indicated in her evidence that the van was a dark red or burgundy colour, while her statement to the adjuster indicates that she did not recall the colour of the van. Ms. Avdeeva testified that she did not recall being asked about the colour of the van when giving her statement but, in any event, she did not think it was important information. The statement also contains an assertion that Ms. Avdeeva did not drive after 2005 which is also incorrect. Ms. Avdeeva denied saying that she did not drive after 2005. She noted that she did not have insurance in 2007 and suggested that some information in the statement may have been taken down in error. Ms. Avdeeva testified that she did not recall reading through the statement before signing it. In my view, these discrepancies are minor and, at best, evidence a sloppiness with details that, rightly or wrongly, Ms. Avdeeva viewed as tangential and unimportant.

There was also the reference in the YCH notes to Ms. Avdeeva having drank a small amount of alcohol. This was adamantly denied by Ms. Avdeeva and both of her sisters. Obviously, it was very late when Ms. Avdeeva attended at YCH, and I accept that she was tired and in pain. While Ms. Avdeeva is able to communicate in English, I also recognize that it is not her first language and there was no interpreter at the hospital. As well, Ms. Avdeeva speaks English with a prominent accent.¹⁰ Ms. Avdeeva also has a hearing impediment which factored in her successful application for ODSP. As a result, I do not place much weight on this minor inconsistency.

Ms. Avdeeva’s alleged lack of cooperation

MVAC Fund also emphasized Ms. Avdeeva’s alleged failure to cooperate with its independent adjuster’s investigation into the incident. MVAC Fund suggested that Ms. Avdeeva’s lack of cooperation is another reason to approach her evidence with scepticism and to reject her claim that she was involved in an accident.

MVAC Fund alleges that Ms. Avdeeva failed to provide Mr. Lau with all reasonable information that she should have known he needed to properly assess the circumstances of the incident, including witness information. I find no basis for MVAC Fund’s allegations.

Ms. Avdeeva notified MVAC Fund of the incident by Application for Accident Benefits (OCF-1) dated October 16, 2007.¹¹ By letter dated November 2, 2007, MVAC Fund acknowledged receipt of the Application and advised that adjustment of the file would be handled by its independent adjuster, CGI.¹² Obviously, I will not refer to all correspondence passing between Ms. Avdeeva’s representative and Mr. Lau of CGI but, given MVAC Fund’s allegations, certain communications over the claims’ handling process are important to highlight.

Mr. Lau’s initial response to Ms. Avdeeva’s Application for Accident Benefits is his letter to Ms. Avdeeva dated November 12, 2007.¹³ In that letter, Ms. Lau advised that MVAC Fund could not consider her application as complete without a police report, a Form 3 (required under section 6 of the Motor Vehicle Accident Claims Act¹⁴) and a Notice of Collection of Personal Information. The letter also indicated that once the requested information was provided, Ms. Avdeeva would also need to provide a signed statement, medical information and a copy of photo identification.

Mr. Malyshev promptly responded to Mr. Lau by letter dated November 16, 2007.¹⁵ Mr. Malyshev’s letter confirmed his earlier advice that there would be no police report, as Ms. Avdeeva had not notified the police. His letter also enclosed a further copy of a Disability Certificate.

By letters dated November 19 and 27, 2007, Mr. Malyshev provided MVAC Fund’s adjuster with the requested Form 3 and the Notice of Collection of Personal Information. Mr. Malyshev also requested blank authorizations so that Ms. Avdeeva could provide her consent for the release of hospital records and her doctor’s clinical notes and records.

By letter dated December 5, 2007, Mr. Malyshev provided Mr. Lau with three executed releases all dated November 30, 2007, i.e. Release of Information (for OHIP), Consent for Disclosure, Transmittal or Examination of Clinical Record (in blank, for medical facilities) and an Employment Information Authorization.

Mr. Lau confirmed his request for a signed statement in a letter dated December 20, 2007¹⁶ and the statement was obtained on January 16, 2008. Mr. Lau also obtained a copy of Ms. Avdeeva’s driver’s licence, social insurance card and health card.

As discussed above, it became clear when Ms. Avdeeva gave her statement that she had attended a wedding reception with “a lot” of people on the night in question and, as a result, there were several potential witnesses to the incident. After taking her statement, Mr. Lau wrote to Ms. Avdeeva on January 21, 2007¹⁷ as follows:

Since there will not be a police report, I need further information to confirm the happening of this motor vehicle accident.

Based on the information of [sic] your signed statement, it would be helpful to have the following information as well:

1. Addresses of your sisters, Irina Dauonova and Ritta Anshilevich;

2. Contact information of the host of the party;

3. Contact person’s name and phone number at Exhibition Place Casino;

4. Contact information of Gesha;

5. Contact information of Rami Rahaminov;

6. Contact information of Renat Mataev;

7. Contact information of Liana Anshilevich.

Without enough information to confirm that this motor vehicle had [sic] happened, we cannot consider your application for accident benefits as complete.

In this letter, Mr. Lau acknowledged that a police report would not be forthcoming. He also requested contact information for the several people that Ms. Avdeeva referred to in her statement.¹⁸

By letter dated February 5, 2008,¹⁹ Mr. Malyshev provided Ms. Avdeeva’s response to the seven requests for information listed in Mr. Lau’s letter of January 21, 2008. In some cases, Ms. Avdeeva provided an address and phone number. In other cases, she provided a phone number only. In the case of Gesha, she indicated that she had failed to get in touch with him as it appeared that he had likely moved to Calgary.

MVAC Fund subjected Ms. Avdeeva to a rigorous cross-examination on the adequacy of the information she provided in response to Mr. Lau’s seven requests. MVAC Fund suggested that Ms. Avdeeva should have provided address information in each case, that she should have done more to obtain a last name and address for Gesha in Calgary, and that she should have provided the names of all persons who might have information about the incident.

MVAC Fund’s characterization is most unfair and not substantiated by the evidence. The fact is that Mr. Lau did not communicate to Ms. Avdeeva or her legal representative that her responses were in any way inadequate. He did not ask for additional address information, he did not ask for Gesha’s last name or further information on his possible whereabouts, and he did not ask for the names of any other persons who may have relevant information. I can appreciate that counsel may have felt that such information was important, but Mr. Lau did not ask those questions. In fact, the adjuster’s notes suggest that Mr. Lau did nothing with the witness information that was provided to him for over three months when, on May 20, 2008, he finally attempted to contact some of the names provided by Ms. Avdeeva. When he did finally contact them, Mr. Rahaminov and Mr. Mataev confirmed that an incident involving Ms. Avdeeva and a van had taken place.

At all times, both before and after speaking to Mr. Rahaminov and Mr. Mataev, it was open to Mr. Lau to request further and better information regarding the persons referred to in Ms. Avdeeva’s statement or inquire whether any other persons may have possibly witnessed the incident. But he did not do so. Instead, Mr. Lau simply communicated that “we are still investigating the claim... we shall let you know in the near future what additional information we need” or that “the Fund is unable to accept this claim until the circumstances of this accident is [sic] fully investigated.”²⁰

As for the OHIP summary, for which Ms. Avdeeva had provided a signed authorization dated November 30, 2007, I note that Mr. Lau did not send the signed authorization to the Ministry of Health and Long Term Care until March 18, 2008. By the time the Ministry received Ms. Avdeeva’s authorization, it was stale-dated. Likewise, Mr. Lau apparently failed to provide the required fee when he delivered Ms. Avdeeva’s authorization to YCH for the release of their records and, by the time he followed up, they also required an updated original authorization. As a result, Mr. Lau had to obtain updated authorizations from Ms. Avdeeva for the release of these records. As a further result, Mr. Lau did not receive YCH’s records or an OHIP summary until September and October 2008 respectively.²¹

When asked on cross-examination why she had not done more to provide Mr. Lau with additional information, Ms. Avdeeva testified that she responded to Mr. Lau’s requests as best she could and did not know what else he needed. I accept her evidence. I find that Ms. Avdeeva responded to Mr. Lau’s requests in a reasonable and prompt fashion. To the extent that Mr. Lau felt that he needed further or better information from Ms. Avdeeva, it was up to him to ask. It was not up to Ms. Avdeeva to speculate. I find that MVAC Fund has done more to establish that Mr. Lau failed to adjust Ms. Avdeeva’s claim in a timely manner or effectively communicate his concerns than it has done to establish that Ms. Avdeeva failed to cooperate with its independent adjuster. While I agree that this case raises credibility issues, I reject the submission that Ms. Avdeeva’s dealings with the adjuster form a basis to doubt her version of events.

As for the fact that Mr. Tounian was not identified as a witness until the pre-hearing conference in August 2009, I have already noted that Ms. Avdeeva was not asked during the adjusting phase to provide the names of all persons who may have witnessed the incident. However, at some point prior to the pre-hearing discussion, it seems that Ms. Avdeeva made her own inquiries and asked Mr. Tounian what he had observed that night. Mr. Tounian told her that he had witnessed the incident between her and the van, so she identified him as a witness at the pre-hearing discussion. I find nothing particularly untoward or suspect that his name did not come up beforehand. Further, Ms. Avdeeva had already provided the names and contact information for several other witnesses. Ms. Avdeeva knew that MVAC Fund continued to reject her claim, but there is no evidence that Mr. Lau advised Ms. Avdeeva that he had contacted any of the potential witnesses or had concerns arising from their accounts. I do not see that it should have been apparent to Ms. Avdeeva that providing the identity of one further person with information was a pressing matter or something that was likely to change MVAC Fund’s position.

Was Ms. Avdeeva involved in an “accident”?

To succeed on the preliminary issue, Ms. Avdeeva must establish, on a balance of probabilities, that she was involved in “an incident in which the use or operation of an automobile directly causes an impairment.” MVAC Fund submits that this is a two-part test which I adopt for the purpose of my analysis. Specifically, I will answer the following two questions:

1. Did Ms. Avdeeva’s fall arise from the use or operation of an automobile? and

2. If so, did the automobile directly cause an “impairment”?

For the reasons that follow, I find that both questions are to be answered in the affirmative.

Did Ms. Avdeeva’s fall arise from the use or operation of an automobile?

This case essentially requires me to decide whether or not to believe Ms. Avdeeva’s version of the events that transpired in the early hours of September 2, 2007.

MVAC Fund submits that Ms. Avdeeva’s evidence is fraught with so many inconsistencies that she should not be believed. Further, MVAC Fund submits that the evidence of her witnesses is not reliable. MVAC Fund also notes concerns arising from the medical evidence. As such, MVAC Fund argues that there is a lack of credible and reliable evidence upon which I can find that Ms. Avdeeva was involved in “an incident where the use or operation of a motor vehicle directly caused an impairment.” I disagree.

In Faryna v. Chorny,²² the court recognized that, where credibility must be assessed, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

I agree with MVAC Fund that Ms. Avdeeva’s evidence raised concerns on many fronts. Specifically, Ms. Avdeeva did not report the incident to the police or initially disclose the involvement of the van, and certain information only came to light in a piecemeal fashion. In fact, MVAC Fund did not have important information about the circumstances of the incident, including the identity of several persons present at the time, until Ms. Avdeeva gave her statement on January 16, 2008. Even then, as MVAC Fund continued its investigation of the incident, discrepancies were revealed between Ms. Avdeeva’s account of the incident and information recorded in the medical evidence. Other minor discrepancies between Ms. Avdeeva’s account and witness accounts were also disclosed.

All of this understandably raised credibility concerns, and I accept that some of the inconsistencies, when viewed on their own and isolated from the evidence as a whole, are quite problematic. Nevertheless, for all of its shortcomings, I find that the evidence, when viewed in its entirety, supports the conclusion that it is more likely than not that Ms. Avdeeva was involved in an “accident.”

First, I find that the most troubling inconsistencies are explained by Ms. Avdeeva’s reluctance to involve the police or provide any more information to persons in authority than she felt necessary or important. I accept that, in this particular instance, her reluctance was especially motivated by her concern that involving the police could result in Gesha getting into trouble. I also find plausible and accept that Ms. Avdeeva believed the police would become involved if YCH had been told that she had been hit by a car.

More importantly, Ms. Avdeeva’s version of the incident rings true, especially when considered together with the other witness accounts.

As I noted earlier in these reasons, Ms. Anshilevich, Ms. Daounova and Mr. Tounian provided accounts that were largely internally consistent and consistent with each other. In all material respects, they corroborated Ms. Avdeeva’s account of events. I found Mr. Tounian’s evidence particularly persuasive as he had a direct line of vision, and I accept that lighting conditions were good and that he was close enough to reliably observe the incident. Mr. Tounian confirmed that Ms. Avdeeva was standing beside the van when it sped off. Most importantly, he testified that, at that moment, she was “pushed away and fell.” I found that Mr. Tounian answered all questions in a forthright manner, and I was not presented with any evidence to suggest that he has an interest in the outcome of this case or that he is anything other than an acquaintance of Ms. Avdeeva.

As I also noted, the accounts of Mr. Rahaminov and Mr. Mataev contained in Mr. Lau’s notes provide further support for the conclusion that Ms. Avdeeva was involved in an accident. While these unchallenged accounts differ in some respects, they both suggest that Ms. Avdeeva fell to the ground as a direct result of an incident involving the van.

Collectively, all of these accounts paint a compelling picture that Ms. Avdeeva sustained injuries as a direct result of the use or operation of the van. The inconsistencies, as they relate to other ancillary matters, simply point to the fact that these eyewitness accounts were not rehearsed.

MVAC Fund would have me conclude that either all of the corroborating witnesses are colluding to mislead or they did not see what they think they saw. Alternatively, MVAC Fund’s position invites me to speculate that, notwithstanding these witness accounts that connect Ms. Avdeeva’s fall to the movement of the van, her fall was actually due to alcohol consumption, dizziness (possibly brought on by her diabetic condition), uneven pavement or some other causes unknown.

I am not persuaded by MVAC Fund’s position. There is no evidence of collusion and I found the witness accounts generally credible and reliable, especially when taken together and viewed as a whole. By contrast, MVAC Fund’s postulations are not “[in] harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” I do not accept that Ms. Avdeeva just happened to fall, at the same time as the van sped away, for some reason that was unrelated to the movement of the van. To my mind, this stretches the limits of credulity and ignores the weight of the evidence.

Also, I accept that Ms. Avdeeva was hit by the van and fell to the ground. However, I find that it matters little whether Ms. Avdeeva was hit by the van and fell to the ground or pulled forward as she held onto Gesha’s arm, knocked off balance, then fell to the ground. Nor do I find that anything turns on whether she fell directly to the ground or stumbled a couple of steps before falling. Regardless of the exact sequence of events involved, I am satisfied that the evidence establishes a direct causal link between the use or operation of the van, Ms. Avdeeva’s fall and her injuries.

Did the automobile directly cause an “impairment”?

MVAC Fund submitted that, even if Ms. Avdeeva was struck by a vehicle on September 2, 2007, she failed to establish that she sustained an impairment as a result. I disagree. There is ample evidence to establish that Ms. Avdeeva sustained an impairment. I accept Ms. Avdeeva’s evidence, the evidence of the witnesses and the medical evidence that Ms. Avdeeva struck her head, sustained a laceration and possibly a brief loss of consciousness as a result of the fall.²³ I also accept that she was weak, in pain and required assistance ambulating. I accept this evidence in support of a finding of “impairment.” As I have already found that the use or operation of the van was a direct cause of her fall, it follows that the van directly caused the impairments.

While MVAC Fund may have concerns arising from the medical evidence, including the role of Ms. Avdeeva’s pre-accident condition on her post-accident condition, and whether any ongoing impairments are sufficient to meet the test of entitlement to the benefits claimed, these are matters to be determined at a full hearing on the merits. This preliminary issue hearing into whether Ms. Avdeeva was involved in an “accident” pursuant to section 2 of the Schedule is not intended to fully examine these issues. Ms. Avdeeva’s entitlement to the benefits claimed must still proceed to a hearing on the merits, and it is in the context of that hearing that MVAC Fund will have the opportunity to fully challenge Ms. Avdeeva’s medical evidence, including her medical history.

I also find MVAC Fund’s submission somewhat disingenuous that it should be permitted to use the medical documentation tendered into evidence for the purpose of cross-examination, but Ms. Avdeeva should not be permitted to use those same documents for the truth of their contents. MVAC Fund submitted that, at minimum, Ms. Avdeeva should have called her family doctor to establish the issue of impairment and requested that I draw an adverse inference from her failure to do so.

I find the evidence sufficient to establish that Ms. Avdeeva sustained an “impairment” for the purpose of the preliminary issue. While I do not place significant weight on the untested medical evidence, it corroborates the witness accounts that Ms. Avdeeva sustained an impairment on the night in question. I am not prepared to draw an adverse inference from the fact that Ms. Avdeeva chose not to call Dr. Portnoi. I note that MVAC Fund had initially indicated that it would be calling Mr. Lau, but ultimately chose not to call him. I do not draw an adverse inference against either party from the fact that they did not call all of the witnesses initially identified.

Conclusion

In conclusion, I find that Ms. Avdeeva has established, on a balance of probabilities, that she was involved in an “accident” as defined in section 2 of the Schedule.

Section 32 defence

Separate from the question of whether Ms. Avdeeva was involved in an “accident,” MVAC Fund also raised a defence pursuant to section 32 of the Schedule based on the initial eight week delay between the date of the incident and Ms. Avdeeva’s Application for Accident Benefits. Specifically, MVAC Fund submitted that “[Ms. Avdeeva’s] claim ought to fail further to section 32 for failure to provide a reasonable excuse and failure to provide notice, to the prejudice of the Responding party.”

In support of the section 32 argument, MVAC Fund refers to two cases, Horvath and Allstate Insurance Company of Canada²⁴ and Carruthers and Royal and SunAlliance Insurance Company of Canada.²⁵ However, it is important to note that both Horvath and Carruthers were decided under a prior version of the Schedule. At the time of those decisions, section 32(1) read as follows:

32(1) A person who wants to apply for a benefit under this Regulation shall notify the insurer within 30 days after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable thereafter.

Section 31 of the Schedule provided the only remedy for failure to comply with the time limit in section 32. Section 31, as it read then, provided as follows:

31(1) A person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.

(2) Subsection (1) does not apply to the time limits set out in section 51.

At the time of the Ms. Avdeeva’s incident, on the other hand, section 32 provided as follows:

32(1) A person shall notify the insurer of his or her intention to apply for a benefit under this Regulation.

(1.1) A person shall notify the insurer under subsection (1) no later than,

(a) the 30th day after the circumstances arose that gave rise to the entitlement to the benefit, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred before October 1, 2003; or

(b) the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day, if those circumstances arose as a result of an accident that occurred on or after October 1, 2003.

More importantly, a new subsection that did not exist under the prior version sets out a remedy available to the insurer in the event that the insured person does not comply with the time limit in section 32 and fails to provide a reasonable explanation for the delay. This new subsection, 32(6), provides as follows:

(6) Despite any shorter time limit in this Regulation, if a person fails without a reasonable explanation to notify an insurer under subsection (1) within the time required under subsection (1.1), the insurer may delay determining if the person is entitled to a benefit under section 35, 38, 39 or 41 and may delay paying the benefit until the later of,

(a) 45 days after the day the insurer receives the person’s application; or

(b) 10 business days after the day the person complies with any request made by the insurer under subsection 33 (1) or (1.1).

Section 32 does not require that Ms. Avdeeva provide a reasonable explanation for providing late notice of her intention to apply for a benefit or risk forfeiting her right to pursue a claim. Instead, in the case of late notice, section 32(6) affords an insurer the remedy of additional time to determine whether the insured person is entitled to a benefit. No such subsection existed at the time of Horvath and Carruthers where the only saving provision was the “reasonable explanation” contained in section 31.

I also find that, even if a section 32 defence were available, it was not properly before me. The defence was not raised in the pleadings nor is it referenced in the pre-hearing arbitrator’s letter confirming the pre-hearing discussion. Issues, including defences, need to be identified with some particularity at these stages so that both parties can properly prepare their cases for hearing and not be caught by surprise. A matter does not become an issue at a hearing simply because a party alludes to it in opening remarks and expounds upon it in closing submissions, as MVAC Fund did in this case with its section 32 defence.

Finally, in the event I am wrong and it is found that a section 32 defence was both available and properly before me, I would still find that Ms. Avdeeva had a reasonable explanation for her delay in notifying MVAC Fund about the accident.

Ms. Avdeeva testified that she did not notify MVAC Fund of the incident that occurred on September 2, 2007 until her Application for Accident Benefits (OCF-1) dated October 16, 2007 because she did not appreciate that the incident was a “car accident” that would entitle her to claim accident benefits. Ms. Avdeeva testified that she first became aware that she might be entitled to accident benefits through a neighbour, Ritta Naftalieva, approximately one month after the incident. Ms. Naftalieva recommended that Ms. Avdeeva speak to a lawyer at Legal Action Direct Inc. When she called, Ms. Avdeeva asked if they had someone who spoke Russian and they put her in contact with Mr. Malyshev who advised her that the incident constituted a motor vehicle accident that entitled her to claim accident benefits through MVAC Fund.

MVAC Fund argued that the adage “ignorance of the law is no excuse” applied in this case. In Horvath, the arbitrator was presented with a similar argument and noted an important distinction:

In my view, the principle that ignorance of the law is not a reasonable explanation must recognize a distinction between laws governing conduct and laws governing liability. An insured person is not legally entitled to be ignorant of laws governing conduct because, like all citizens, he/she is required to know and obey such laws. An insured person is not, on the other hand, legally required to know anything about laws governing liability. …It follows, in my view, that an explanation which relies upon an insured person's ignorance of a law governing liability cannot, for that reason alone, be unreasonable. …I turn next to the principle that the reasonableness of an explanation is to be assessed on the basis of both subjective personal characteristics and objective "reasonable person" standards.

By any standard, I find Ms. Avdeeva’s explanation reasonable. At the time of the incident, Ms. Avdeeva did not own a motor vehicle or have a motor vehicle liability policy. She was not operating a motor vehicle and she was not an occupant of a motor vehicle. While the incident involved a motor vehicle, I find it entirely plausible and reasonable that Ms. Avdeeva did not understand that she had been involved in a motor vehicle accident. I also find it credible that Ms.Avdeeva would not know that she should be notifying a public “insurer” of last resort that would cover medical treatments and other benefits reasonably required as a result of the incident. I am not surprised that she only became fully aware of the nature of the incident and her entitlement to claim accident benefits through MVAC Fund after meeting with a legal advisor. I suspect that many members of the general public, unversed in motor vehicle insurance law, would find themselves under a similar misapprehension regarding the nature of the incident and its implications. I also find that Ms. Avdeeva proceeded with due haste to obtain legal advice and apply to MVAC Fund, once she became aware through her neighbour that she might have recourse to benefits.

For all of these reasons, I would not preclude Ms. Avdeeva from proceeding with her claim for accident benefits pursuant to section 32, even if such a defence were available to MVAC Fund.

EXPENSES:

The parties did not make submissions on the issue of expenses. If the parties cannot agree on entitlement to or the amount of expenses, either party may request a determination in accordance with Rule 79 of the Dispute Resolution Practice Code.

December 13, 2010

Robert Bujold Date Arbitrator

ARBITRATION ORDER

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

1. Ms. Avdeeva was involved in an “accident” on September 2, 2007 within the meaning of the Schedule.

2. If the parties cannot agree on entitlement to or the amount of expenses, they may request a determination in accordance with Rule 79 of the Dispute Resolution Practice Code.

December 13, 2010

Robert Bujold Date Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2See Figure 13 at Tab 115 of Joint Brief
3. 3CGI Adjusters Inc. acted as MVAC Fund’s independent adjusters on this file.
4. 4See Figures 11 and 18 at Tab 115 of the Joint Document Brief
5. 5The most negative experience involving police would appear to be two speeding tickets received on the same day in May 2006.
6. 6Dr. Karmy is a pain management specialist who assessed Ms. Avdeeva on February 14, 2008.
7. 7See Tabs 65 and 100 of the Joint Document Brief. Dr. Portnoi provided a copy of her file, including Dr. Karmy’s report, to CGI in April 2008. Therefore, Dr. Portnoi had to be in possession of Dr. Karmy’s report when she met with Ms. Avdeeva on May 29, 2008.
8. 8See Tab 111 of the Joint Document Brief
9. 9See Tab 105 of the Joint Document Brief
10. 10Although Ms. Avdeeva used an interpreter at the hearing, she attempted to answer some questions in English.
11. 11MVAC Fund also raised a section 32 defence based on the initial delay in notifying MVAC Fund of the incident. This issue is addressed later in these reasons.
12. 12See Tab 112
13. 13See Tab 3b
14. 14R.S.O. 1990, c. M.41
15. 15See Tab 105
16. 16See Tab 106
17. 17See Tab 8
18. 18I note that there is nothing in Ms. Avdeeva’s statement to suggest that the people referenced in her statement constituted a comprehensive list of every person outside the restaurant at the time of the incident. In fact, there is no reference to potential witnesses per se. The names of persons in her statement simply arise in the context of providing a narrative of the incident.
19. 19See Tab 11
20. 20See letters from Mr. Lau to Mr. Malyshev dated April 10, 2008 and April 17, 2008 at Tabs 17 and 21, respectively.
21. 21See Tabs 63 and 92
22. 221951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354
23. 23While there is no reference to the van in the YCH records or the clinical notes of Dr. Portnoi, these records do provide evidence that Ms. Avdeeva sustained injuries on the night in question, and confirm a possible brief loss of consciousness. In addition, several medical assessments provide evidence of ongoing sequelae. See, for example, the Disability Certificate dated October 25, 2007 and the Assessment of Attendant Care Needs dated November 9, 2007 at Tabs 66 and 68, respectively, of the Joint Document Brief.
24. 24(FSCO A02-000482, June 9, 2003)
25. 25(FSCO A99-000923, May 30, 2002); Confirmed on appeal (FSCO P02-00015, April 10, 2003)