Ahmed Sadozai v. Aviva Canada Inc., 2013 ONFSCDRS 72

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 72

FSCO A11-002727

BETWEEN:

AHMED SADOZAI

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Richard Feldman

Heard: April 15 and 16, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Arvin Gupta for Mr. Sadozai

Aimee Draper for Aviva Canada Inc.

Issues:

The Applicant, Ahmed Sadozai, claims to have been injured in a motor vehicle accident on September 13, 2009. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ Disputes arose concerning certain claims for accident benefits. The parties were unable to resolve their disputes through mediation and Mr. Sadozai applied for arbitration of these disputes at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Aviva then raised a preliminary issue.

The preliminary issue is:

Was Mr. Sadozai involved in an “accident” as defined in section 2(1) of the Schedule?

Result:

Mr. Sadozai has failed to prove, on a balance of probabilities, that he was involved in an “accident” on September 13, 2009.

EVIDENCE AND ANALYSIS:

In order to proceed with his claim for accident benefits, the Applicant in this case must first prove (on a balance of probabilities) that he was involved in an accident on September 13, 2009. I find that the Applicant has failed to meet his onus of proof for the following three main reasons: (1) his own testimony was less than convincing; (2) he failed to adduce any corroborating evidence that might bolster his testimony; and (3) two accident reconstruction specialists who have examined the subject vehicles or photographs of these vehicles have both concluded that the physical evidence does not suggest any collision between these vehicles (as described or otherwise).

The Applicant’s testimony can be summarized as follows:

In September 2009, he did not own a motor vehicle. He rented a vehicle (a 2000 Chevrolet Cavalier) around September 11 to do some shopping with his wife. At the time of renting the car, he paid little attention to its condition. He arranged to pick up two men at a mosque at between 8:00 and 9:00 p.m. on September 13, 2009. While driving them home (travelling 30 to 50 kilometres per hour), he rear-ended a van (a 1999 Chevrolet Venture) that was waiting to make a left-hand turn. The brakes on the car failed so that there was little, if any, deceleration before impact. The collision was so violent that both headlight assemblies of the Cavalier were knocked loose and were lying on the road. There were several people in the van. The Applicant and the driver of the van exchanged insurance information and inspected the damage to the vehicles. No police or ambulance attended the scene. The Applicant drove the car to a collision reporting centre and then drove the vehicle home. He returned it to the rental company the next morning.

This story was not convincing because it lacked detail, consistency and logic. For example:

the Applicant testified that he rented the car on September 11 to do a bit of shopping but the rental agreement shows that the car was rented by him on September 8;
the Applicant’s only purpose in going to the mosque was to pick up two men who were virtual strangers to the Applicant — he did not explain how, when or why these arrangements were made;
the Applicant picked up these men around 8:30 p.m. but, according to what he told the police at the collision reporting centre on September 13, 2009, the accident happened after 11:00 p.m. that night. Even allowing for a couple of stops (for food and at a drug store), the Applicant could not adequately account for the 2½ to 3 hours it took him to travel a few kilometres from the mosque to the site of the “accident”;
the Applicant testified that he was travelling south along Victoria Park but he reported to the police and others that he was driving northbound along Victoria Park;
the rental agreement shows that, at the time the car was given to the Applicant, it had damage in the very areas the Applicant later claimed were damaged on September 13;
the Applicant testified that when he returned the car, he told the owner of the rental company that he had been involved in an accident but the rental agreement shows no new damage at check-in (i.e., when the vehicle was returned) and the Applicant's signature appears just below a typed declaration that the vehicle was not involved in an accident during the term of the rental;
the Applicant told the police that the weather had been dry and clear at the time of the accident but, when completing a form for Zurich (Ex. 1, Tab 4), the Applicant indicated it was raining at the time of the accident;
the Applicant previously reported that he was travelling approximately 30 kilometres per hour just before impact but testified before me that he may have been going 50 kilometres per hour;
the Applicant advised people (at Zurich and Aviva) that he had not been involved in any motor vehicle accidents prior to September 13, 2009 but he admitted on cross-examination that he had claimed accident benefits (including income replacement benefits) from an alleged accident on August 19, 2009 (less than one month before this incident).

The Applicant’s story lacks the type of clear and consistent details that one expects of credible testimony. His failure to adequately identify the time of the accident, his speed, the direction of travel, the weather conditions and the condition of his vehicle both before and after the accident all leave serious doubts as to the weight I can give to the Applicant’s testimony. When combined with other inconsistencies in the Applicant’s evidence, this raises serious questions with respect to the credibility of the Applicant’s evidence.

The Applicant also chose not to call any of the other six individuals who were allegedly directly involved in this incident or the “independent” witness (Jenna Powell, a co-worker of the Applicant and friend of the Applicant’s brother), who the Applicant said just happened to be walking by at the time of the accident. No explanation was given for the Applicant’s failure to file any documents or call any witnesses who might corroborate his testimony. I draw an adverse inference from the Applicant’s failure to call as witnesses any of the people who ought to have been able to corroborate key parts of the Applicant’s testimony.

Finally, two accident reconstruction specialists (Robert Seaton of Investigative Research Group hired by Intact and Sam Kodsi of Kodsi Engineering Inc. hired by Aviva) independently came to the same conclusion: the damage (such as it is) to the front end of the car in question and to the rear end of the van are not consistent with the car rear-ending the van, especially not at a reported closing speed of 25-45 kilometres per hour. There is no paint transfer between the two vehicles. The minor scratches to both bumpers with virtually no crush damage is inconsistent with the reported speeds. The length, elevation and directionality of the damage on the two bumpers do not match up. Finally, there is no logical way to cause damage or dislocation to the car’s headlights without first causing extensive damage to the bumper that sits immediately in front of the headlights and no such damage was present on the car’s front bumper. In short, there is no physical evidence that these vehicles were ever in contact with each other.

For all of these reasons, I find that Mr. Sadozai has failed to prove, on a balance of probabilities, that he was involved in an “accident” on September 13, 2009.

June 6, 2013

Richard Feldman

Arbitrator

Date