Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 149
FSCO A11-003637 and A11-003733
BETWEEN:
SARAH HOEY JOHN VERA
Applicants
and
COACHMAN INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Rosemary Muzzi Heard: April 3 and 4, 2013 Written submissions received from Coachman on: May 9 and 23, 2013 Written submissions received from applicants on: May 16, 2013
Appearances: Jonathan Tkatch and Kwaku Bona for Ms. Hoey and Mr. Vera Jamie Pollack and Amanda Lennox for Coachman Insurance Company
Background:
The hearing was to determine whether the applicants wilfully misrepresented material facts with respect to their applications for accident benefits.
The accident occurred on January 30, 2010 and the applicants applied for accident benefits claiming they had suffered physical injuries as a result of the accident. Coachman terminated benefits to both applicants asserting that the applicants wilfully misrepresented material facts with respect to an application for a benefit. In particular, Coachman claims that the applicants misrepresented who was driving the car. The applicants advised Coachman that Ms. Hoey was driving. Coachman believes that Mr. Vera was driving the car and that Ms. Hoey was not even present on the scene until after the accident.
It is for Coachman to prove on balance that the applicants wilfully misrepresented material facts with respect to an application for a benefit.
Facts:
There were two cars involved in the accident. Ms. Hoey and Mr. Vera were allegedly in one. A lone driver was in the second car. (I refer to this driver as the second driver).
Ms. Hoey and Mr. Vera allege that Ms. Hoey was driving their vehicle.
Coachman alleges that Mr. Vera was driving the vehicle.
Ms. Hoey, Mr. Vera and the second driver gave statements to Coachman.1
Mr. Vera’s driver’s licence was suspended at the time of the accident.
Issue
Was Mr. Vera driving the vehicle?
THE LAW
Material Misrepresentation
Section 48(1) of the Schedule2 allows the insurer to terminate payment of a benefit where an insured person has wilfully misrepresented material facts with respect to an application for a benefit.
Whether or not a misrepresentation is material is dependent upon the particular facts of the case including: the nature of the misrepresentation, what is obtained by the misrepresentation, the relationship in monetary and other terms between the misrepresentation and the benefits available; and the availability of other provisions to assist the insurer.3 However, some misrepresentations are so fundamental that this type of analysis is unnecessary.4
This case represents a fundamental misrepresentation. Ms. Hoey and Mr. Vera intentionally misled Coachman about who was driving the vehicle. I find that Mr. Vera was driving the vehicle. The applicants’ misrepresentation of this material fact disentitles both of them to accident benefits. Mr. Vera’s licence was suspended and as a result he is excluded from receiving certain benefits. Ms. Hoey insisted she was the driver to assist Mr. Vera’s receipt of accident benefits from which he would otherwise be excluded.
Result
Mr. Vera was driving the car.
EVIDENCE AND ANALYSIS:
I find that the preponderance of the evidence shows that Mr. Vera was the driver of the vehicle. I am satisfied that Mr. Vera was the driver of the vehicle because of (i) his actions at the scene of the accident, (ii) his statements to police and Coachman, (iii) the credible evidence of two independent witnesses, (iv) the limited evidence from Ms. Hoey, and (v) Mr. Vera’s overall lack of credibility.
The evidence of Mr. Vera’s actions at the scene of the accident indicated that he was likely the driver of the car. Mr. Vera behaves like the driver of the vehicle from the very moment of impact of the two vehicles. He testified that he got out of the car to deal with the second driver and provided information to that second driver including his own personal information and the ownership papers of the vehicle. In my view, it is inherently improbable that a passenger would be the person at the scene of an accident to approach the other driver to exchange information. Further, no reasonable explanation was ever offered for Mr. Vera’s insistence on handling matters at the scene. The fact that Mr. Vera asserted himself and Ms. Hoey, the alleged driver, remained in the periphery for some time goes a long way to demonstrating the identity of the driver.
Neither Ms. Hoey nor Mr. Vera provided an explanation for Mr. Vera’s direct dealings with the second driver when he was purportedly just the passenger. Mr. Vera states that he got out of the van “right away and told [Ms. Hoey] to stay inside. It was very cold that day.” Ms. Hoey’s statement is also remarkable for its lack of explanation and detail on this point. She states “[he] told me to stay in the van while he talked to the other driver. That is what I did.”
Considering all of the evidence, it seems reasonable to me that Mr. Vera exited the vehicle to speak to the second driver to smooth out his own difficult situation; that is, and there is no dispute on this point, Mr. Vera’s suspended driver’s licence.
Other evidence also indicates that Mr. Vera was driving the vehicle. For example, while Mr. Vera testified that after the collision he got out of the passenger side of the vehicle to take care of things for Ms. Hoey, the second driver, one of the independent witnesses, testified that he saw Mr. Vera come down the driver side of the vehicle when he approached. The investigating officer testified that he saw a female on the scene sometime into his investigation at the scene. Adding to this foundation is the fact that Ms. Hoey herself never explicitly identified herself as the driver to the second driver. Her statement5 to Coachman shows that she never even approached the second driver.
The evidence of the second driver on this point was that Mr. Vera told him that he did not have a driver’s licence and Mr. Vera proposed calling his wife to say that she was driving. This oral testimony was verified in the second driver’s statement to Coachman where he stated that Mr. Vera “rambled on about his financial problems and the fact that his driver’s licence was under suspension. He asked if we could resolve it between us by him paying me cash. At one point he proposed that he call his wife, have her come to the scene and tell police that she was driving.”
The evidence of the second driver and the investigating officer supports the fact that Mr. Vera was driving the car. Their evidence was consistent internally and with much of the other evidence before me.
The second driver had no interest in the outcome of this proceeding; he has no legal matters pending involving either of the applicants. His testimony was consistent in the main with the statement he provided Coachman several weeks after the accident. There is no reason to disbelieve the second driver’s version of what happened and what he was told by Mr. Vera.
The investigating officer had a direct opportunity and capacity to observe the scene. In addition, his notes were made contemporaneously with the events and are very detailed. Much of what the officer recorded and testified about is consistent with the other evidence before me.
I found that the evidence of the independent witnesses was not refuted or adequately challenged by the evidence of Ms. Hoey and Mr. Vera. While the applicants argued that the investigating officer did not directly question Mr. Vera to get his side of the story, their own evidence indicates that they refused to elaborate in any meaningful way at the scene. Neither Ms. Hoey nor Mr. Vera appears to have attempted to clarify the circumstances in any way with the investigating officer. Mr. Vera testified that he went back to the vehicle when the investigating officer arrived. The officer’s notes indicate that when the officer asked Mr. Vera if he was sure that Ms. Hoey was driving the van Mr. Vera responded “I better not say anything more”. The officer’s notes indicate that Ms. Hoey approached him after he had begun his investigation, initially inquiring what was wrong and then telling him that she was driving and wanted an ambulance. With respect to her ambulance request, the officer’s notes show that she did not respond to his inquiry “are you hurt?” When the officer asked why she wanted an ambulance, his notes indicate that she told him that she was not talking to him anymore.
Ms. Hoey’s statement to Coachman is not consistent on this point with either Mr. Vera’s evidence or the officer’s notes. She states “the police officer spoke to the other driver and then he talked to [Mr. Vera] and I”. Later she states, “When the police officer spoke to [Mr. Vera] and I he was not very pleasant. He didn’t take my statement”. Mr. Vera’s statement to Coachman6 indicates that “the other officer walked over to us and asked who was driving and Sarah said ‘I was’’7. It is not clear to me why Ms. Hoey is inconsistent on these details especially given Mr. Vera’s very concise statement.
Furthermore, it is clear that Ms. Hoey remained very much in the background even though she was purportedly the driver. In fact she was so removed from the scene that she stated that she is not sure that either Mr. Vera or the second driver saw her exit the van and head to the Loblaws.8 Both the second driver and the officer testified that they did not notice her on the scene except until later. This behaviour on her part is not consistent with her purported role in the accident as the driver.
Finally, there is the overall impression of Mr. Vera’s lack of credibility, especially in his oral testimony. That testimony was replete with internal contradictions and discrepancies with the statement he gave to Coachman.
During his testimony, especially as he was being cross-examined, Mr. Vera went to great, albeit unsuccessful, lengths to show that he and Ms. Hoey were living together at the time of the accident despite the fact that both of their statements to Coachman indicated that they were not. I can only surmise that he insisted in this regard because of Coachman’s allegation that he summoned Ms. Hoey to the scene after the fact. Whatever his motivation, his testimony about this subject matter should have been straightforward yet was so confusing that it led me to question his credibility in general as a witness. There were also inexplicable discrepancies in his oral testimony and statement regarding how each of them returned home after the accident. It seemed clear from their statements that they exited the scene separately but his insistence at the hearing that they left together seemed again like an attempt to concoct a different story to refute Coachman’s allegation.
Conclusion:
I find that the preponderance of the credible evidence before me indicates that Mr. Vera, not Ms. Hoey, was driving the vehicle. Both of the applicants wilfully misrepresented material facts with respect to an application for accident benefits. As a result, Coachman may terminate benefits.
EXPENSES:
I exercise my discretion to award Coachman its reasonable expenses incurred in this preliminary issue hearing.
November 20, 2013
Rosemary Muzzi Arbitrator
Date
Financial Services Commission of Ontario Commission des services financiers de l’Ontario
Neutral Citation: 2013 ONFSCDRS 149
FSCO A11-003637 and A11-003733
BETWEEN:
SARAH HOEY JOHN VERA
Applicants
and
COACHMAN 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:
- Ms. Hoey and Mr. Vera wilfully misrepresented material facts with respect to an application for accident benefits.
November 20, 2013
Rosemary Muzzi Arbitrator
Date
Footnotes
- John Vera’s statement is dated March 26, 2010. Sarah Hoey’s statement is dated February 25, 2010. The driver of the second car, Trevor Judd, provided his statement on February 12, 2010.
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Michalowski and St. Paul Fire and Marine Insurance Company (FSCO A98-001992, July 9, 1999)
- Szabo and CAA Insurance Company (Ontario) (FSCO A02-000678, March 14, 2003)
- Exhibit 4
- Exhibit 7
- Ibid., second page, paragraphs 4-5
- Exhibit 4