Mohamed Ali Hashi and Hodan Ahmed v. Allstate Insurance Company of Canada, 2013 ONFSCDRS 142

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 142

FSCO A10-003774

FSCO A11-001819

BETWEEN:

MOHAMED ALI HASHI and HODAN AHMED

Applicants

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Robert Bujold

Heard: July 30 and 31, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Jacek Maludzinski for Mr. Hashi

Ms. Ahmed represented herself

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicants claim that they were injured in a motor vehicle accident on November 25, 2009. They applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ In or about August 2010, Allstate terminated payment of any further benefits. By that time, Allstate had completed its investigation into the incident and took the position that the Applicants had not been involved in a motor vehicle collision as reported. Allstate also sought repayment of benefits already paid to Mr. Hashi in the amount of $11,417.70, and benefits already paid to Ms. Ahmed in the amount of $8,583.49.

The parties were unable to resolve their disputes through mediation, 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. Mr. Hashi (A10-003774) seeks further payments for attendant care benefits, housekeeping benefits, medical expenses, and a special award. Ms. Ahmed (A11-001819) seeks further payments for income replacement benefits, attendant care benefits, housekeeping benefits, medical and cost of examination expenses, and a special award. In both proceedings, Allstate continues to seek repayment of benefits paid.

At the pre-hearing discussion, the parties agreed that both matters should proceed first to a preliminary issue hearing. For the limited purpose of the preliminary issue hearing, the Applicants’ proceedings were combined.

The preliminary issue is:

Were the Applicants involved in an “accident” as defined in section 2(1) of the Schedule?

Result:

The Applicants were involved in an “accident” as defined in section 2(1) of the Schedule.
The Applicants are entitled to their expenses of the preliminary issue hearing. If the parties cannot agree on the quantum of expenses, any party may request an assessment of expenses pursuant to section 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Overview

The parties framed the preliminary issue narrowly. I was effectively asked to determine whether the Applicants were involved in a motor vehicle collision on November 25, 2009 as reported. Allstate did not advance the alternative argument that, in the event a collision did take place, the collision itself was staged. Nor did Allstate ask me to determine whether the Applicants had sustained an “impairment,” which is a constituent element of an “accident” as defined by section 2(1) of the Schedule. As framed, the question of whether the Applicants had been involved in an “accident” as set out in the Schedule was limited to a determination of the issue at the heart of the dispute between the parties, i.e. whether or not a motor vehicle collision involving the Applicants took place on the evening of November 25, 2009.

Allstate’s position that a collision did not take place was based mainly on the report of its accident reconstruction expert, Mr. Robert Seaton of Investigative Research Group. Mr. Seaton concluded that the physical evidence regarding the two vehicles reportedly involved in the collision indicated that “these vehicles did not collide with one another.”

Mr. Hashi secured his own accident reconstruction report prepared by Michael Jenkins of Giffin Koerth Inc. While Mr. Jenkins did not provide an opinion on whether or not a collision likely took place, he did conclude that certain damage and transfer marks on the two vehicles were consistent with a collision between them. As Mr. Jenkins put it, the information provided to him definitely supported the proposition that these two vehicles could have collided.²

This case was not simply a “battle of the experts.” The expert evidence, on its own, did not lead me inexorably to a conclusion, although Mr. Jenkins’ evidence was quite persuasive. My assessment of the Applicants’ evidence as credible was integral to my conclusion that a collision, as reported, was not only possible but probable. In short, it was the evidence, viewed as a whole, that persuaded me that the Applicants were involved in an “accident” as defined in section 2(1) of the Schedule.

Onus of Proof and Order of Presentation

At the outset of the hearing, I was advised that the parties had agreed that Allstate would present its case first because it was advancing a “positive defence.” As noted, Allstate took the position that a collision involving the Applicants did not take place as reported. I accepted the parties’ agreement as to the order of presentation, but I sought clarification that, consistent with the appeal decision in TTC and Wootton,³ the onus of proof remained with the Applicants to establish that they had been involved in an “accident” as defined in section 2(1) of the Schedule. Counsel for Allstate agreed that, notwithstanding the order of presentation, the onus of proof remained with the Applicants to establish that they had been involved in an “accident.” The Applicants made no submissions on the issue of onus of proof.

Onus of proof is very infrequently a practical issue. It can arise where, even in the absence of any countervailing evidence, the party with the onus has simply failed to introduce sufficient reliable evidence to establish the matter to be proven on a balance of probabilities. It can also arise where sufficient evidence has been tendered to support either party’s position, but the weight of the evidence, viewed as a whole, is so evenly matched that the trier of fact is unable to reach to a conclusion on the matter to be proven. In that rare case, it becomes important to understand which party bears the onus of proof.

In this case, I find myself addressing the issue of onus of proof, not because I was unable to reach a conclusion on a balance of probabilities, but because Ms. Ahmed remarked at the conclusion of the hearing that it seemed “no one had proven whether an accident had taken place or not.” Likewise, in his closing submissions, Mr. Hashi’s representative suggested a possible misapprehension of the onus of proof with his remark that both experts answered their referral questions “as best they could,” but Allstate’s expert failed to “convince” him that a collision did not take place as reported. As a result of these remarks, it appears that the Applicants may have misapprehended the onus of proof in this case, so I will briefly review the issue.

In Wootton, the TTC accepted that Ms. Wootton had sustained a fall and suffered injuries in the area of a bus loop in front of Sunnybrook Hospital. However, the TTC was not convinced that the incident happened as Ms. Wootton described it, and put Ms. Wootton to the strict proof that her claim fell within the definition of an “accident,” as defined in the SABS-1996. On appeal from the hearing arbitrator’s decision, the Director’s Delegate agreed with the TTC that Ms. Wootton had the onus of proving that the incident fell within the definition of an “accident.” He also found that the position taken by the TTC had not shifted the onus of proof. The Director’s Delegate put it this way:

This was not a case where the TTC accepted that Ms. Wootton had brought herself within the scope of coverage, but was relying on some type of exclusion that it could be expected to prove. The dispute was about coverage, which turned on a straightforward factual question – what happened outside of Sunnybrook Hospital on December 7, 2000? The TTC could not be expected to prove what did not happen on that date.

Like Wootton, Allstate denies that the Applicants in this case have brought themselves within the scope of coverage. However, unlike Wootton, Allstate took what counsel described as a “positive defence.” It maintained that a collision did not take place as reported, and implicit in this position was the allegation that the Applicants (as well as the drivers of both vehicles, and possibly the passengers of the other vehicle) were complicit in a fraud. But this did not shift or remove the legal onus on the Applicants to prove that they had been involved in an “accident.” If neither party had succeeded in proving what they had set out to prove or, as Ms. Ahmed put it, if “no one had proven whether an accident had taken place or not,” the Applicants would have lost on the preliminary issue and their claims would be dismissed.

However, this was not that rare case where the evidence, so evenly matched, evaded one conclusion or the other. Given the apparent confusion regarding the onus of proof, I wish to be clear that, on the evidence presented, the Applicants proved, on a balance of probabilities, that they were involved in an “accident” as defined in section 2(1) of the Schedule.⁴

As for the order of presentation agreed to by the parties, it is not uncommon for an insurer to present its case first without shifting the onus of proof.⁵ The parties may simply agree that it will facilitate the hearing process to hear first the evidence obtained through the insurer’s investigations, followed by the applicant’s evidence, which can then be presented with full knowledge of the insurer’s case. A procedural agreement of this kind does not affect the onus of proof.

The Reported Incident

Police Constable Alyssa Petersen testified at the hearing. Officer Petersen investigated the accident. She responded to a call of an accident on Highway 27, just north of Highway 7 at approximately 10:45 on the evening of November 25, 2009.

When she arrived on scene, Officer Petersen noted a “two vehicle event.” The vehicle identified as vehicle 1 was a brown 1997 Toyota Camry operated by Ms. Ikram Mohamed. There were two passengers in Ms. Mohamed’s vehicle. Ms. Ahmed was riding in the front passenger seat. Mr. Hashi was riding in the back seat. No one in Ms. Mohamed’s vehicle reported having any injuries.

Ms. Mohamed reported to Officer Petersen that she was travelling southbound on Highway 27 and wanted to turn right (west) onto Highway 7. As a result, she merged into the right turn lane of southbound Highway 27. There was another vehicle in front of her that she thought was going to go faster to the intersection “to make the turn before the red light – as it was just turning yellow.” But the other vehicle did not go as fast as Ms. Mohamed had thought it would, and she struck the other vehicle. Ms. Mohamed estimated her speed at the point of impact at 40 km per hour. The posted speed limit on that stretch of Highway 27 is 60 km per hour.

The other vehicle, identified as vehicle 2, was a red 2002 Dodge Caravan operated by Ms. Indranie Singh. There were three passengers in this vehicle. No one in Ms. Singh’s vehicle reported having any injuries.

Ms. Singh also reported that she was travelling southbound on Highway 27, wanting to turn right (west) onto Highway 7, when she “felt a hit from behind.” She estimated that she was travelling approximately 20 km per hour when her vehicle was struck.

Officer Petersen testified that she had specific recall of the incident (or at least the location), but could not give any reason why it was memorable. Officer Petersen could not recall whether tow trucks were already on scene when she arrived, but she noted that both vehicles were towed. Officer Petersen noted damage to the “front corner left” of Ms. Mohamed’s vehicle. Ms. Singh’s vehicle was noted as having damage to its “back right.”⁶ Damage to both vehicles was noted as “light.”

Neither Ms. Mohamed nor Ms. Singh was called by any party to give evidence at the hearing.

The Expert Evidence

Mr. Seaton, retained by Allstate to investigate the collision, and Mr. Jenkins, retained by Mr. Hashi to do the same, were restricted to examining photographs of the Mohamed and Singh vehicles, and comparing the photographic evidence to exemplar vehicles. In that regard, both opinions contained a degree of speculation and uncertainty, and both experts were required to make some assumptions regarding the vehicles, such as tire pressure and suspension.

The damage to the Mohamed vehicle was primarily to the front left corner and left side mirror. The front bumper was cracked and the mounts were broken on the left side. There was horizontal scratching or scuffing to the left side of the bumper from the headlight to the left front wheel. There was dark colour transfer on the bumper at the left corner. The left headlight was cracked and the left turn signal was broken. The leading edge of the front left fender was dented rearward. Finally, the outer portion of the left side mirror was scuffed with paint missing, exposing the dark plastic beneath. Mr. Jenkins also noted that the photographs of the Mohamed vehicle appeared to show that the mirror was slightly displaced from its normal position. Mr. Seaton did not make this observation.

Damage to the Singh vehicle included a significant and near-horizontal inward deformation to the lower portion of the rear lift gate for which there was no corresponding damage to the Mohamed vehicle, and both experts agreed that this particular damage to the Singh vehicle was unrelated to any collision with the Mohamed vehicle and was likely pre-existing damage.

The remaining damage to the Singh vehicle evidenced in the photographs was primarily to the rear right corner and right side. The rear bumper was cracked with horizontal scratching and scuffing on the right side. As well, the right rear side panel had two distinct transfer marks (extending approximately 45-46 inches in length), with darker transfer on the upper curved transfer mark. There is a possible much fainter third transfer mark, higher than the other two, although it is difficult to discern with certainty from the photographs. The right rear hubcap of the Singh vehicle also showed evidence of being deformed.

Both experts reviewed the available photographs, compared the damage to exemplar vehicles, correlated damage on one vehicle to the other noting similarities and differences, and using their understanding of vehicle motion and dynamics, formed opinions on whether any of the damage was consistent with a collision as reported in the motor vehicle accident report and statements.

As noted, Mr. Seaton and Mr. Jenkins agreed that the damage to the rear lift gate of the Singh vehicle was not related to the collision as reported. As for the damage to the leading edge of the front left fender of the Mohamed vehicle that was dented rearward, both experts also agreed that that damage was not likely the result of a single collision between the vehicles, although in his oral testimony, Mr. Jenkins seemed to offer the possibility that the damage could have been caused by a hit from the broken Singh bumper. His report, however, attributes that damage to either a second collision or damage that pre-existed the collision.

The main areas of disagreement between Mr. Seaton and Mr. Jenkins focused on 1) the damage to the rear right bumper of the Singh vehicle (and corresponding damage to the front left bumper, headlight and turn signal of the Mohamed vehicle), and 2) the transfer marks on the rear right panel of the Singh vehicle (and corresponding damage to the outer portion of the left side mirror of the Mohamed vehicle).

As for the first area of disagreement, Mr. Seaton found that the damage “did not support an eccentric collision as reported.” Mr. Seaton would have expected to see crush damage to the posterior aspect of the right rear fender panel of the Singh vehicle behind the rear bumper cover. This is an area that is generally unprotected because the metal bumper beam does not extend the full length of the plastic bumper cover. Mr. Seaton also noted the absence of any apparent abrasion damage to the side wall of the Singh rear right tire or deflation of the tire, as well as the absence of abrasions or fracture damage to the Singh wheel disk cover or brown paint transfer from the Mohamed vehicle.

Mr. Jenkins responded that crush damage would depend, in part, on the relative speeds and trajectories of the vehicles. Mr. Jenkins stated that the character of the damage suggested that the faster moving Mohamed vehicle contacted the right rear bumper of the Singh vehicle in a limited “glancing collision engagement” with an “angular component.” Given the nature and extent of the damage, the differential in the relative speeds of the two vehicles would not have been great at the point of impact, and he described the collision as “low impact.”⁷

Mr. Jenkins also noted that the dark colour transfer on the left corner of the Mohamed front bumper extended from a height of approximately 10 to 15 inches and was consistent with contact with dark plastic, dark paint or rubber transfer. Correspondingly, the scratching or scuffing on the right corner of the Singh rear bumper extended from a height of approximately 11 to 21 inches, and the right rear hubcap of the Singh vehicle was deformed suggesting the wheel or tire may have sustained damage. Mr. Jenkins concluded that the height and colour of the transfer on the left corner of the Mohamed front bumper was consistent with either the dark plastic bumper or right rear tire of the Singh vehicle. Mr. Jenkins also noted that “transfer [of collision materials such as paint, plastic, rubber, etc.] does not always go both ways and will often result in materials transferring only from one vehicle onto the other, and not vice versa.”

As for the other main area of disagreement, Mr. Seaton estimated that the lowest of the three transfer marks along the right rear side panel of the Singh vehicle begins at approximately 35 inches above the ground (at the rear tail light lens) with the marks extending in an angular upward slope along the rear side panel for approximately 46 inches. The highest of the three marks at this point is approximately 40 inches above the ground.

Mr. Seaton estimated that the lower aspect of the mirror on the Mohamed vehicle is situated approximately 36 inches above ground based on the exemplar vehicle using the recommended maximum tire inflation of 44 psi. Mr. Seaton admitted that the tire size and tire inflation of both the Mohamed and Singh vehicles would affect his measurements.

Based on his review, Mr. Seaton concluded that the geometric profile of the transfer marks on the Singh vehicle did not correspond with “the narrow scope of isolated minor abrasion damage” to the rear view mirror. Given the vertical movement of five inches along the length of the transfer marks, he would have expected fracture damage and/or complete displacement of the plastic mirror housing on the Mohamed vehicle, which he did not observe. Mr. Seaton testified that he tried moving the mirror on the exemplar vehicle and noted that it was non-articulating with little, if any, give.

In response, Mr. Jenkins found that there were only two distinct transfer marks along the left rear panel of the Singh vehicle, and his analysis of the damage in this area focused on these two marks. Mr. Jenkins found that the character of the third “mark” identified by Mr. Seaton (located highest above the ground on the forward portion of a protruding feature line that runs along the side of the Singh vehicle) was not obvious from the photographic evidence. I agree. There are two clear transfer marks along the side of the Singh vehicle. They are both approximately 45 to 46 inches in length, and appear related to each other. I could not discern from the photographic evidence that a third mark, along a short length of the forward portion the feature line, represented damage or scuffing or, if it did, that it was related to the other transfer marks or the purported collision. I therefore accept Mr. Jenkins’ analysis that focused on the two principal marks only.

With respect to those two marks, Mr. Jenkins testified that the marks extended 45 inches along the side of the right rear side panel from a height of 33.5 inches from the ground near the tail light to a height of 37.5 inches at its most forward point. Both transfer marks had varying degrees of light and dark transfer, although there was more dark transfer on the upper mark.

Based on his examination of the photographs and the exemplar vehicles, Mr. Jenkins concluded that the transfer marks on the right rear panel of the Singh vehicle were consistent with the damage to the outer aspect of the left side mirror on the Mohamed vehicle.

Mr. Jenkins estimated the mirror on the Mohamed vehicle at a height of 34 to 35 inches from the ground, which was in the general range of the transfer marks on the Singh vehicle. He also noted that the colour of paint and dark plastic present on the Mohamed side mirror appeared to match the colour of the light and dark transfer marks on the Singh vehicle.

With respect to the vertical rise of approximately 4 inches along the length of the transfer marks, Mr. Jenkins testified that they could be explained on two grounds.

First, and apart from some give that he would have expected from the plastic mirror housing, Mr. Jenkins pointed out that the left side mirror appeared to be slightly displaced, as noted by a gap between the mirror housing and the A-pillar; a gap not evident on the exemplar vehicle. As mentioned, Mr. Seaton had not noticed this apparent damage from his review of the photographs.

Second, Mr. Jenkins testified that the variation in height could also be partially explained by the fact that, as vehicles engage in sideswipe collisions, they typically roll on their suspension in a direction opposite the contact source. In this case, the Mohamed vehicle would roll to the right, causing the left side to rise relative to the right side. This would explain the vertical rise of the first upward-sloping transfer mark along the side of the Singh vehicle. The vertical drop of the second transfer mark would be explained by the Mohamed vehicle rolling back as the two vehicles subsequently disengaged.

Mr. Jenkins also explained how the mirror likely created the two transfer marks that appear to start and finish at or near the same location. The first mark would have been created when the Mohamed vehicle, initially travelling faster than the Singh vehicle, hit the Singh vehicle from behind and travelled along its left rear side in a somewhat sideswipe-type collision. The most forward point of that transfer mark is where the Mohamed vehicle would have reached a common speed with the Singh vehicle. At that point, and while still in contact, the Singh vehicle either accelerated forward relative to the Mohamed vehicle, or the Mohamed vehicle slowed more rapidly than the Singh vehicle, causing the second transfer mark to be created in the opposite direction as the vehicles became disengaged from each other.⁸ Given this relative motion, the two transfer marks would start and finish at or near the same locations.

In summary, Mr. Jenkins concluded that the location and character of the damage to the vehicles, including the apparent colour match of the transfer marks, were consistent with a glancing or sideswipe type collision between the vehicles.

Mr. Jenkins’ opinion that the physical evidence was consistent with a collision between the Mohamed and Singh vehicles was persuasive, but his evidence alone did not lead me to conclude that a collision was probable. The physical evidence must be considered in light of the evidence as a whole, and the Applicants’ evidence provided further support for the conclusion that a collision between the vehicles took place as reported.

The Applicants’ Evidence

The Applicant, Ms. Hodan Ahmed, was 23 years of age at the time of the accident. She was unemployed and receiving employment insurance benefits. At the time of the hearing,

Ms. Ahmed had completed three years of a four year business administration program.

The Applicant, Mr. Mohamed Hashi, was 21 years of age at the time of the accident. He was unemployed with no source of income. At the time of the hearing, Mr. Hashi had completed his first year of a four-year health and society program at York University.

The operator of the Mohamed vehicle, Ms. Ikram Mohamed, was a friend of both Applicants. Mr. Hashi had known Ms. Mohamed for about 8 to 10 years from attending the same school.

Ms. Ahmed had known Ms. Mohamed for about a year.

Much of the Applicants’ evidence was generally consistent, both internally and as between them. They both recounted that, on the night of the reported collision, they had decided to get together with Ms. Mohamed who was moving away to Windsor. Ms. Mohamed picked up Ms. Ahmed first, and then proceeded to Mr. Hashi’s house to pick him up. It was late, so they decided to go to a Tim Horton’s/Wendy’s near the intersection of Martin Grove Road and Highway 7. Mr. Hashi knew someone who worked there. They did not stay long. When they left, Ms. Mohamed was going to drive them home. However, Ms. Mohamed, who did not live in the area,⁹ became lost upon exiting the plaza. The Applicants maintained that Ms. Mohamed had been driving around trying to get re-oriented to her location when the collision occurred.

The Applicants were also consistent in their evidence that the accident happened when the Singh vehicle came into the right turn lane that the Mohamed vehicle was already travelling in.

Ms. Ahmed, who was sitting in the front passenger seat, testified that it was her recollection that the Singh vehicle made a last minute lane change into the right turn lane, moving directly in front of them, then braked. The Mohamed vehicle swerved at first, but failed to avoid a collision. It hit the van, and then brushed up against it, which helped slow down the Mohamed vehicle.

Mr. Hashi, who was sitting in the back seat on the driver side, gave a substantially similar account. According to Mr. Hashi, the Singh vehicle seemed “indecisive.” It had been in the right turn lane, but moved left into the through lane as they approached it. The Mohamed vehicle then started to proceed past in the right turn lane, when the Singh vehicle sped up to come back into the right turn lane in front of them. As a result, the front left corner of the Mohamed vehicle struck the rear right corner of the Singh vehicle.

Ms. Ahmed and Mr. Hashi both maintained that they did not know anyone from the Singh vehicle. They both recounted that someone who appeared angry got out of the Singh vehicle and engaged Ms. Mohamed in a brief exchange. Mr. Hashi recalled that he asked Ms. Ahmed and Ms. Mohamed if they were OK, and they seemed like they were in shock. Both Applicants believed that Ms. Mohamed called the police. When Officer Petersen arrived, Ms. Ahmed and Mr. Hashi both recalled telling her that they did not need an ambulance. Ms. Ahmed said that she told Officer Petersen that she was OK, as she did not “feel it” right away. Mr. Hashi said that he felt some pain right away, but did not want to incur an ambulance bill. Ms. Ahmed and Mr. Hashi both sought medical attention the following day.

Both vehicles were towed. Neither Ms. Ahmed nor Mr. Hashi claimed to know how the tow trucks came to be on the scene, but they both recalled that the police arrived first.

On the whole, I found that the Applicants provided their evidence in a generally straightforward manner without apparent exaggeration or embellishment. As well, neither Applicant hesitated to admit when they could not remember specifics of the evening in question, and Mr. Hashi admitted that the statement he gave in March 2010 likely reflected a better recollection of events than his recollection at the time of the hearing.

Allstate’s challenge to the Applicants’ account of events focussed on three main areas of concern or “red flags.” Allstate pointed to these concerns as evidence that the Applicants had not been involved in a collision as reported.

First, Allstate noted that the plaza with the Tim Horton’s/Wendy’s is located just east of Martin Grove Road, just south of Highway 7. Allstate challenged how the Mohamed vehicle came to be north and west of the plaza, when the apparent intention upon leaving the plaza was to drive the Applicants home, both of whom lived south of the plaza, also just east of Martin Grove Road.

Second, Allstate noted that it was Mr. Hashi’s evidence that the Mohamed vehicle was travelling eastbound on Highway 7 intending to turn south on Highway 27 when the collision occurred. This is contrary to the evidence of Officer Petersen who said both vehicles were in the right turn lane of southbound Highway 27 intending to turn west on Highway 7.

Finally, Allstate took issue with the fact that Ms. Ahmed and Mr. Hashi had different accounts of the speeds of the two vehicles at the time of impact.

With respect to Allstate’s first concern, Ms. Ahmed testified that she is not sure how they came to be north and west of the plaza where the collision took place. She could only say that they were engrossed in conversation and somehow got lost. Mr. Hashi testified that Ms. Mohamed exited the plaza onto some “smaller roads.” They initially drove along these smaller roads and this contributed to them getting lost. He also noted that it was dark and, as noted previously,

Ms. Mohamed did not live in the area. He estimated that they had been driving for about 5 to 10 minutes after leaving the plaza when the collision took place.

I agree with Allstate that there was no reason for Ms. Mohamed to travel west of Martin Grove Road or north of Highway 7 in order to drive the Applicants home. It is in the opposite direction of the Applicants’ homes. I also take note that, when the collision occurred, Ms. Mohamed was about to turn right (west) onto Highway 7, which would take her even further away from the Applicants’ homes. That being said, I found nothing necessarily inconsistent with these facts and the Applicants’ account that they were lost. Being lost, by definition, means a loss of orientation. If the Applicants were lost, as they allege, it should not be surprising that they were headed away from their intended destination when the collision occurred. It also seems to me that, if the Applicants were complicit in a fraud, it would have been simpler, and arguably less suspicious, to come up with a story that gave a reason for being at the intersection of Highway 27 and Highway 7 than to say they were lost.

As for Mr. Hashi’s belief that the Mohamed vehicle was travelling eastbound on Highway 7 intending to turn south on Highway 27 when the collision occurred, I find that this simply provides further evidence that the Applicants were lost. It was not only dark, but Mr. Hashi was sitting in the back seat. I find it likely that these factors affected Mr. Hashi’s sense of direction. There was no good reason for Mr. Hashi to hold to his view that they were travelling eastbound on Highway 7, when faced with evidence that he was wrong on this point, other than it being his honest, although faulty, belief. In short, Mr. Hashi stuck to his account, even though it was inconsistent with the motor vehicle accident report and potentially adverse to his position. Rather than pointing to a conspiracy to commit fraud, I find that the discrepancy between Mr. Hashi and preponderance of the evidence on this point demonstrates that the Applicants’ evidence was not contrived or rehearsed.

With respect to the speeds of the two vehicles at the time of impact, Ms. Ahmed estimated that the Mohamed vehicle was travelling approximately 40 or 50 km/hr when it struck the Singh vehicle, which she believed had come to a stop. According to Mr. Hashi, both vehicles were in motion when the collision occurred. He estimated that the Mohamed vehicle was going approximately 50 or 60 km/hr, and the Singh vehicle was going the same speed or perhaps even a bit faster as it tried to get back into the right turn lane in front of them. Mr. Hashi’s evidence was less clear on this point, but it seems that both vehicles had started to brake when the collision took place. At whatever point each vehicle may have braked or how hard, both vehicles obviously came to a stop before travelling much further even by Mr. Hashi’s account.

Ms. Ahmed and Mr. Hashi’s accounts are clearly different; however, I reject Allstate’s contention that this provides further compelling evidence that a collision did not take place. I did not find the evidence of either Applicant regarding the absolute speeds of the vehicles to be very reliable, but neither would I expect it to be. Accidents generally involve events being acted upon by multiple variables unfolding over a short period of time. Given their different vantage points (Ms. Ahmed in the front passenger seat, and Mr. Hashi in the back seat behind the driver), and given the relative motion of the two vehicles (each accelerating and/or decelerating at different rates and times), I am not surprised that the Applicants had very different perceptions of the absolute speeds of each vehicle at the point of impact. Further, as passengers in the Mohamed vehicle, I would also not expect Ms. Ahmed and Mr. Hashi to be in the best position to provide reliable estimates for the speeds of either vehicle, but especially the Singh vehicle.¹⁰

I also found Ms. Ahmed’s cross-examination of Mr. Hashi to be compelling. This was not the exchange of two co-conspirators trying to get their stories straight. Rather, Ms. Ahmed’s line of questioning came across as a sincere attempt to try to understand the events leading up to the collision, and to try to reconcile Mr. Hashi’s recollection with her own. In that regard, Ms. Ahmed directly challenged Mr. Hashi’s assertion that the Singh vehicle could have been travelling faster than the Mohamed vehicle. Mr. Hashi explained that, from his vantage point on the driver side, he could see the Singh vehicle speed up to get in front of them before getting in the right turn lane. He agreed, though, that the Singh vehicle slowed down when it entered the lane in front of them. Ms. Ahmed did not seem entirely convinced by Mr. Hashi’s explanation, but it did seem to give her pause. From her vantage point on the passenger side, it seems that Ms. Ahmed was more focussed on the Singh vehicle braking once it came into the right turn lane in front of them. In any event, and whatever the absolute speeds of the vehicles at the point of impact, I was not persuaded that the discrepancy in the Applicants’ evidence in that regard, especially as it relates to the speed of the Singh vehicle, should lead me to conclude that a collision did not take place.

Allstate also asked that I draw an adverse inference from the fact that the Applicants did not call Ms. Mohamed to give evidence at the hearing. I decline to do so. I accept that Ms. Mohamed no longer resides locally, and the Applicants have lost touch with her. Further, I am not persuaded that her oral testimony would have necessarily shed more light on events than the account we already have from Ms. Mohamed, as contained in Officer Petersen’s notes. As well, there is no property in a witness, and I have no evidence that either side tried contacting Ms. Mohamed or, if contacted, that she was found to be uncooperative. If this were a conspiracy to commit fraud, involving not only the Applicants, but also Ms. Mohamed and Ms. Singh (and possibly the passengers of the Singh vehicle), it is odd that no one from either vehicle, at least initially, reported any injuries. Although insured with Allstate, I did not hear whether Ms. Mohamed ever advanced a claim for accident benefits.

Conclusion

Based on all of the evidence, viewed as a whole, I am satisfied that the Applicants were involved in a collision on the evening of November 25, 2009 as reported. Given the narrow framing of the preliminary issue, the Applicants have established, on a balance of probabilities, that they were involved in an “accident” as defined in section 2(1) of the Schedule.

EXPENSES:

The Applicants are entitled to their expenses of the preliminary issue hearing.¹¹ If the parties cannot agree on the quantum of expenses, any party may request an assessment of expenses pursuant to section 79 of the Dispute Resolution Practice Code.

November 13, 2013

Robert Bujold

Arbitrator

Date