DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Fred Sampliner Heard: October 15, 2012, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: The Applicants did not appear and were not represented Pamela A. Brownlee for TD Home and Auto Insurance Company

Issues:

The Applicants claimed benefits under the Schedule¹ from TD Home and Auto Insurance Company (“TD”) for injuries in an August 18, 2009 motor vehicle accident. TD’s position is that the Applicants were not involved in the accident and their claims were denied. The mediation of this dispute was unsuccessful, and the Applicants applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Were the Applicants involved in the accident?
Is TD entitled to its expenses of the arbitration?

Result:

The Applicants were not involved in the accident.
TD is entitled to its expenses of the arbitration.

EVIDENCE AND ANALYSIS:

The accident is alleged to have occured when a 1998 Honda Accord pulled out of a McDonald’s parking lot onto Highway 7 in Vaughan, colliding at an angle with a 2006 Jeep Liberty that was travelling in the same direction. The Honda driver, Mr. Badrudin Abdilleh, testified at an examination under oath² on April 14, 2010 that Ms. Beyden Farah, Mr. Osman Mahmud and Mr. Yahia Mohamed were in the car while he drove. Mr. Abdilleh explained that he saw the Jeep driver was a middle-aged woman and she had a young male passenger of about 22 or 23 years in her car. He did not know either person in the Jeep.

In his evidence, Mr. Abdilleh provided details about the identity of the Honda occupants and four additional people who also claimed they were occupants of the vehicle. He clearly indicated he had two passengers and that Mr. Hure and Mr. Sahal were not the people in his car at the time of the accident.

The Applicants filed for benefits with TD through their lawyers approximately one month after the August 18, 2009 accident. TD requested they attend for examinations under oath about the accident in early 2010, but the examinations did not happen. The Applicants did not attend the January 25, 2012 prehearing at this Tribunal’s offices.

At the preliminary issue hearing on September 7, 2012, the Applicants did not appear to testify and they did not provide documentary evidence refuting Mr. Abdilleh’s testimony they were not involved in the accident.

I do not rely on TD’s accident reconstruction report. TD retained an engineering firm to examine the Honda’s and Jeep’s physical damage. The November 2009 opinion concludes that some of the damage was consistent with the reported collision and other damage was not consistent with the collision report. The engineer’s opinion is not conclusive there was no collision or that the accident was a staged event.

I accept TD’s position based on Mr. Abdilleh’s testimony at the examination under oath. I find that the Applicants were not present in Mr. Abdilleh’s vehicle at the time of the August 18, 2009 accident, and that they are not entitled to accident benefits under the Schedule.³

EXPENSES:

I notified the parties at the time of scheduling of this matter that I would determine their claims for the expenses of the preliminary issue at the time of this decision. TD is completely successful in obtaining dismissal of the Applicants’ claims, and the Applicants presented no evidence to support they were involved in the accident. I find that TD is entitled to its expenses of this arbitration.

The hearing of this preliminary matter was one hour. I use a ratio of 4 hours for preparatory time to the one hour hearing, in accordance with this Tribunal’s usual practice. I find that TD is entitled to the following amounts for legal counsel and disbursements: 5 hours x $96.95/hour for Ms. Brownlee (’94 call) = $484.75 + $63.02 HST + $226.84 photocopying (inclusive of HST) = $774.61. I find that Mr. Sahal and Mr. Hure are jointly and severally liable to pay $774.61 to TD for its expenses of this arbitration under section 282(11) of the Insurance Act.

November 20, 2012

Arbitrator Fred Sampliner

Date

Financial Services Commission of Ontario

Neutral Citation: 2012 ONFSCDRS 152 FSCO A11-001739, A11-001767

BETWEEN:

ABDIFATAH SAHAL ABDIFATAH HURE Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

ARBITRATION ORDER

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

Mr. Abdifatah Sahal’s and Mr. Abdifatah Hure’s claims for accident benefits under the Schedule are dismissed.
Mr. Sahal and Mr. Hure shall pay TD $774.61 for the expenses of the arbitration.