Neutral Citation: 2014 ONFSCDRS 181

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BETWEEN:

SHAILASRI SASITHARAN, AJITH BALASUBRAMANIAM, and NIRMALA SIVAKUMAR Applicants

and

TD GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION on a PRELIMINARY ISSUE

(for the order dated November 24, 2014)

Before: Jessica Kowalski Heard: January 27, 28, 29 and 30, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions to June 6, 2014.

Appearances: Michael Wentzel and Daniel D’Urzo for Mr. Balasubramaniam Paul Omeziri for TD General Insurance Company

This hearing was for the purpose of determining whether an accident occurred within the meaning of the Schedule¹, and whether the applicants willfully misrepresented material facts with respect to the accident and therefore their applications for accident benefits.²

Issue

The question is whether this was a deliberate collision in which the applicants’ minivan struck a Honda Civic with the assistance of a third vehicle that left the scene.

Result

The applicants were involved in an accident as defined by the Schedule and may proceed with their respective applications for arbitration.

The facts of this case are unusual. The parties offer completely opposed and incompatible versions of what happened. The parties agree on very little. With respect to material facts, they agree that:

The applicants were in a Toyota Sienna minivan, westbound on Steeles Ave. E., just west of McCowan Road
A Honda Civic, driven by Katy Lee-Law, was eastbound, waiting to turn left into the gas station at the corner
An unidentified dark sedan was in the westbound curb lane
The collision occurred after 10:00 p.m. on October 12, 2010

The case is predicated on scenarios that TD’s witnesses say were gaining prominence in or around 2010, where innocent drivers would be stalled or blocked by a lead car and then struck by a trailing car. In this case, the lead car is alleged to be the unidentified dark sedan.

Witnesses

The following individuals were involved in the incident or gave evidence:

The applicants, in the Toyota minivan: Ajith Balasubramaniam was driving. Shailasri Sasitharan was in the front passenger seat. Nirmala Sivakumar was in the centre rear seat
The occupants of the Honda Civic: Katy Lee-Law was driving. Her sister, Jacqueline Lee, was in the front passenger seat
Police Constable Wheeler: the investigating officer
An unidentified dark sedan: allegedly used as a blocking vehicle

I also considered evidence from Mr. Rakesh Sharma, an investigator with TD, and Mr. Sam Kodsi, an engineer who completed an accident reconstruction report for TD.

The evidence of both PC Wheeler and Mr. Kodsi was that this incident shared traits consistent with staged collisions that, as noted above, were emerging in 2010 involving a common theme: two cars coming into contact at or near a private parking lot at an uncontrolled intersection, with an unknown vehicle used as a blocker vehicle. These staged accidents typically involved an unsuspecting driver who was waved through to make a turn. The two vehicles that would be stopped would accelerate, one blocking or obstructing the path of the unsuspecting driver, followed by the second one colliding with the unsuspecting driver.

EVIDENCE and ANALYSIS

For the reasons that follow, I preferred the applicants’ version of events. I found their evidence credible and find that this was, on balance, a left-turn accident as the applicants have alleged.

The evidence that this accident was staged comes from Ms. Lee-Law and her sister, Ms. Lee, who say they were targeted when they were stalled by the dark sedan, and then struck by Mr. Balasubramaniam’s minivan as they turned left. As a result of their comments to PC Wheeler, he, followed by TD, concluded that the accident was staged.

I find that Ms. Lee-Law and Ms. Lee’s evidence was inconsistent, both internally and with each the other’s evidence. I also find that their evidence was inconsistent on material details. I therefore reject it as not credible or reliable.

Because PC Wheeler and Mr. Kodsi relied on the description of the accident provided by Ms. Lee-Law and Ms. Lee, I find that their evidence is compromised and I therefore give it little weight.

I also find:

that PC Wheeler’s investigation pre-judged and prejudiced the applicants from the outset;
that the suggestion that Mr. Balasubramaniam claimed accident benefits on two different policies from the same insurer seven years before was not determinative and of little assistance because it was not explored during the hearing; and,
the circumstances surrounding Mr. Balasubramaniam’s June 2012 purchase of the Toyota minivan not to be suspicious, or his and the minivan’s prior history not to be determinative.

Parties’ positions

The applicants’ position

The applicants maintain that this is a simple left turn case – that Katy Lee Law, the driver of the Honda, caused the collision when she attempted a left turn into the path of Mr. Balasubramaniam’s minivan. Mr. Balasubramaniam’s evidence is simply that he was proceeding westbound along Steeles Ave. E. Ms. Lee-Law was attempting a left turn into the gas station parking lot. A car ahead of him passed her. She made her turn, and he struck her.

The insurer’s position

TD claims that because the collision was deliberate and staged, there was no “accident” as defined by the Schedule. TD argues that the applicants colluded with the unidentified third car, the dark sedan, to coordinate the accident. TD claims that this third car was stopped in front of Mr. Balasubramaniam’s minivan just east of the entrance to the gas station in the curb lane. The driver of that car was allegedly on the telephone, presumably with Mr. Balasubramaniam, orchestrating the collision so that when Ms. Lee-Law proceeded to turn, the dark sedan, acting as a blocker, accelerated into her path, causing her to slow or stop so that Mr. Balasubramaniam’s minivan could strike her.

The applicants

On the whole, I found that the Applicants’ evidence made sense. Mr. Balasubramaniam’s evidence was simple and straightforward. His passengers, Ms. Sasitharan and Ms. Sivakumar, both testified that they were engaged with each other, talking about what they would be doing that evening. Mr. Balasubramaniam was driving them to his wife’s sister’s home to assist with ongoing food preparation for an impending event. Ms. Sasitharan and Ms. Sivakumar were chatting, facing each other, not observing the road, and did not see what happened.

Mr. Balasubramaniam testified that he was travelling westbound along Steeles Ave. E., behind a dark sedan. He saw Ms. Lee-Law facing eastbound, waiting to make a left turn into the gas station. After the dark sedan drove past her, she proceeded to make her turn. Mr. Balasubramaniam did not expect that she would turn, and he collided into the rear of her car when she did. He panicked and did not brake, accidentally stepping down on the accelerator.

Mr. Balasubramaniam and his occupants presented as unsophisticated individuals. Ms. Sivakumar and Ms. Sasitharan did not attempt to embellish where they did not observe what happened or where they had limited details.

Police Constable Wheeler

Police Constable Wheeler was the primary responding officer. He was dispatched to the accident scene more than two hours after the accident, after midnight. When he arrived, the cars were still in their final resting places. He concluded that the damage to the vehicles was consistent with a left turn collision. He saw damage to the Honda’s right rear corner, back bumper and fender area. He saw minor damage to the minivan: scrapes to the front right bumper and a flat front right tire, possibly caused by the minivan striking the curb. Based on what he saw, he concluded that the collision was minor and “appeared to be a very low speed collision.”

I find that, by the time he went to speak to Mr. Balasubramaniam, PC Wheeler had made up mind about what had happened. I find that he gave Mr. Balasubramaniam’s comments short shrift and took an accusatory approach to Mr. Balasubramaniam early on, based on his discussion with Ms. Lee-Law and the application of what he called “criminal profiling.”

In his failure to be open in his investigation and to elicit Mr. Balasubramaniam’s version of events before making conclusions, I find that he set forth a chain of events that prejudiced both the applicants as well as TD in its adjusting of the file.

PC Wheeler spoke first to Ms. Lee-Law, who was the first to approach him as he exited his vehicle. According to his notes, Ms. Lee-Law told him that:

she had been stopped on eastbound Steeles Ave. E., intending to make a left turn into the gas station driveway;
she was stopped there because there were two vehicles in the westbound curb lane that appeared to be parked, or at least stopped; and that,
she saw the minivan stopped behind the unidentified motorist who was on his cell phone.

According to Mr. Balasubramaniam, PC Wheeler was rude to him. Each confirmed that PC Wheeler tried – unsuccessfully – to bluff Mr. Balasubramaniam into admitting that he had been on his cell phone immediately before the accident, by threatening that a trace of his phone records would disclose the truth. Mr. Balasubramaniam had no way of knowing that the bluff was just a bluff. He maintained that he was not on the phone and readily provided his cell phone number.

PC Wheeler concluded that, based on his conversations with the drivers and passengers of each car, the “circumstances appeared to be different from a normal left turn collision.” He concluded that the accident appeared to be a deliberate collision with Mr. Balasubramaniam striking the Honda “with the assistance of a third vehicle which was not on the scene.”

PC Wheeler testified that he had other reasons to conclude the accident was suspicious. He testified that Ms. Sasitharan and Ms. Sivakumar’s complaints of pain at the scene of a minor collision were characteristic of a staged accident. He also found it suspicious that Mr. Balasubramaniam told him where he wanted the minivan towed because it was unusual for people to have a garage in mind in the middle of the night.

I find that Mr. Balasubramaniam gave a plausible and reasonable explanation for the tow location: in the two hours he waited for a police officer to arrive, he called his brother who proffered the name of a garage. According to PC Wheeler, that there was nothing noteworthy (i.e. suspect), about the body shop Mr. Balasubramaniam chose.

Finally, PC Wheeler testified that he applied “criminal profiling” to his investigation. He testified that “…without racially profiling people involved in the collision, we call it criminal profiling. The people involved in this collision at the time, all of the staged accidents that I had been to involved Sri Lankan…people of Sri Lankan descent and usually a car full of people…” unrelated or loosely related, minimum of three to a car. He also testified that “the second vehicle involved was almost always involving an Asian driver,” although he did say that that could simply be a function of the area in Scarborough in which he worked.

Katy Lee-Law and Jacqueline Lee

I find that Ms. Lee-Law’s and Ms. Lee’s evidence was inconsistent and contradictory on several important points.

PC Wheeler’s conclusion was predicated on Ms. Lee-Law’s statement at the scene that Mr. Balasubramaniam’s minivan was stopped or parked behind the dark sedan before the cars accelerated. Both sisters testified that their visibility was good and that they would have seen a vehicle behind the dark sedan.

Each testified, however, that she could not recall whether the minivan was stopped or parked behind the dark sedan before it struck their car.

Ms. Lee-Law, who told PC Wheeler that Mr. Balasubramaniam’s minivan was stopped or parked behind the dark sedan, testified that she did not recall whether she saw a car behind the sedan or if she even looked. Similarly, Ms. Lee testified that she could not recall seeing the minivan parked or stopped behind the dark sedan. She testified that there was no oncoming traffic, other than the dark sedan that was stopped before the gas station entrance.

She testified that Mr. Balasubramaniam’s minivan “may have been behind” the dark sedan, but she could not recall. When asked specifically if she saw the minivan stopped on the road, Ms. Lee replied, “I didn’t actually.” She said she did not specifically see the minivan because she and her sister were focused on getting to the gas station and making sure that the dark sedan was not moving.

Ms. Lee also testified that they were not looking or paying attention to whether there was another car, because all of their focus was on the mystery car, the dark sedan. She also testified that Mr. Balasubramaniam drove into them so quickly and that there was no reason to check for other cars because there were no cars moving toward them. In an email to TD’s counsel dated October 31, 2013, Ms. Lee wrote that the minivan was “going westbound on Steeles” before it struck them.

I find the question of whether the minivan was stopped or parked behind the dark sedan to have been a critical piece of evidence. It was instrumental to PC Wheeler’s conclusion that the accident was staged. I find it highly improbable that either sister, much less both, would forget.

The sisters’ evidence also differed with respect to the actions and movement of the dark sedan before and when it accelerated.

Ms. Lee-Law testified that she saw the dark sedan stopped or parked in the curb lane just before the entrance to the gas station with his right turn signal blinking. Twice she stated that the dark sedan was signaling right, but not that its hazard or emergency lights were on.

After the car in front of Ms. Lee-Law turned into the gas station without incident, she waited to see if the dark sedan would move, but the driver, she says, was on the phone. She testified that at the moment she started to turn, the dark sedan jerked forward, swerved in front of her car, and back onto Steeles Ave. E., where it continued westbound and disappeared.

Her evidence was that the dark sedan swerved right, around the front of her car, and entered into the gas station driveway before it drove back out to Steeles Ave. E. and disappeared.

Like Ms. Lee-Law, Ms. Lee testified that there was a car in front of them that made a left turn safely into the gas station first. Thereafter their accounts diverge again. Ms. Lee testified that the dark sedan stopped at the edge of the entrance to the gas station facing westbound, but with its emergency lights flashing. As Ms. Lee-Law proceeded to turn, the dark sedan suddenly sped up and zoomed past their Honda.

When asked whether the dark sedan had to move to the right or left, Ms. Lee stated that the sedan went straight and did not swerve. She testified that the dark sedan never actually entered the gas station driveway: when he sped up he simply went straight, continued westbound along Steeles, where he disappeared. When shown a copy of PC Wheeler’s drawing of the accident scene, Ms. Lee disagreed that the dark sedan swerved: it almost hit them but did not swerve. She stated three times that the dark sedan went straight: “[i]t just kind of went really fast in front of us and just went westbound, straight, his straight, basically. He just kept going straight.” This is in marked contrast to Ms. Lee-Law’s evidence that the dark sedan had to swerve into the gas station driveway to avoid hitting her.

Finally, Ms. Lee-Law testified that after the accident, she approached Mr. Balasubramaniam’s car to see if the matter could be settled between them but that Mr. Balasubramaniam did not talk to her at all and that he called the police. She waited in a tow truck for the police to arrive because it was too cold to stay outside. She recalled that it was the tow truck driver told her that the whole thing looked strange and that the accident looked staged, although she could not recall whether he used the word “staged” because they spoke mostly in Chinese.

Kodsi Engineering Report

TD retained Kodsi Engineering to complete an accident reconstruction report. Mr. Kodsi gave evidence at the hearing. He testified that both scenarios described by the parties were possible. He concluded that Ms. Lee-Law’s version was more likely on the basis that, if Mr. Balasubramaniam’s account were to be believed, either the impact would not have occurred (meaning Mr. Balasubramaniam had enough time to stop), or he would have struck a part of the Honda closer to the middle or front, rather than at the back end.

Mr. Kodsi concluded that the sequence of events reported by Ms. Lee-Law was plausible, but that the reported actions of the westbound vehicles, including the Toyota minivan, were unusual and unexpected. As noted above, his report is compromised to the extent that it makes conclusions based on hypothetical scenarios using information from Ms. Lee-Law and Ms. Lee that I find to be unreliable.

Mr. Balasubramaniam’s history and his purchase of the minivan

Mr. Rakesh Sharma, a TD investigator, testified that he was called to investigate the accident following the property damage appraisal report that disclosed that the minivan had prior damage inconsistent with the current accident. His investigation disclosed that the minivan was in a previous accident in December 2009 and was written off by the then-insurer as a total loss. Six months later, in June 2010, Mr. Balasubramaniam bought the car for cash. His annual premium was close to $4,000.00, set up for monthly payments, and he had defaulted on the first two installments.

Mr. Sharma’s investigation also disclosed a gap in coverage from October 2004 to June 2010. He also saw that Mr. Balasubramaniam had made a claim to Nordic Insurance Company for a February 2003 accident and that he made two claims for the same accident under two different policies, both with the same insurer.

Mr. Balasubramaniam bought the Toyota minivan in June of 2010. According to Mr. Sharma, Mr. Balasubramaniam bought the minivan for $18,000.00 or $19,000.00 (based on a VIN report). Mr. Balasubramaniam testified that he paid between $13,000 and $14,000.00. He paid the first $10,000.00 of the purchase price using his wife’s line of credit and paid the balance in installments.

Mr. Balasubramaniam testified that he did make an accident benefits claim as a result of the 2003 accident. He denied that he made two claims to the same insurer on two policies (his and another insured’s). However, the insurer, Nordic, did not flag this and apparently paid him benefits on both ($14,000.00 on one, and $9,000.00 on the other). Mr. Balasubramaniam appeared confused when confronted with the fact of two claims. He testified that he had a lawyer at the time. Although suspicious, this fact was not explored during the hearing. Absent further information, and given that Mr. Balasubramaniam had a lawyer at the time and that the claims were made to the same insurer, I can make no findings. I do find, however, that in the circumstances, this is not evidence of a pattern of conduct that would convince me to conclude that Mr. Balasubramaniam staged the 2010 accident on the limited evidence before me. I have insufficient evidence to find that the two claims were the result of an intention by Mr. Balasubramaniam to defraud an insurer and not inadvertent, or part of a pattern of misrepresentation, especially given that he had counsel at the time.

Finally, Mr. Balasubramaniam’s evidence that he bought the minivan from a dealer called Milan Auto. I heard no evidence that the dealer was suspect, that Mr. Balasubramaniam did not buy the car in good faith or that he knew that it had been written off by another insurer six months before. I find that, in his circumstances, with a family and another child on the way, a minivan made sense. He needed a vehicle, used his wife’s line of credit to buy it, and struggled with payments. I find it unlikely that he would pay a significant amount for a vehicle he knew was salvaged or for a vehicle he intended to drive for four months so he could crash it and take his chances on an insurance payment that neither was nor is guaranteed or to engage in legal proceedings that are not without risk. Absent further details, I find that the circumstances of Mr. Balasubramaniam’s purchase of the minivan and his accident of 10 years before are not evidence of misrepresentation in the current case.

Conclusion

On a balance of probabilities, on all of the evidence before me, I find that Ms. Lee Law simply made a bad left hand turn. The fact that Mr. Balasubramaniam hit her as a result and where, by Mr. Kodsi’s evidence, he had time to stop and avoid her car is, in my view, not evidence of a planned and deliberate accident but, on balance, errors on the part of both drivers. I find nothing nefarious in the evidence before me to persuade me otherwise. Accordingly, for the reasons set out above, I find that the applicants were involved in an accident within the meaning of the Schedule and may proceed with their applications for arbitration.

EXPENSES

The parties made no submissions on the issue of expenses. In the event that they are unable to resolve this issue on their own, they may bring the matter before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

December 2, 2014

Jessica Kowalski Arbitrator

Date

Financial Services Commission of Ontario