Hassan Id v. Unifund Assurance Company, 2014 ONFSCDRS 44

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 44

FSCO A12-005163

BETWEEN:

HASSAN ID

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Stuart Mutch

Heard: December 16, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Vic Purewal for Mr. Id

Sharla Bandoquillo for Unifund Assurance Company

Issue:

The Applicant, Hassan Id, alleges that he was injured as a result of a motor vehicle accident that took place on June 21, 2010. He applied for caregiving, attendant care and housekeeping benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Id applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Unifund raised the issue of whether Mr. Id was involved in an accident pursuant to section 2 of the Schedule. That issue is the subject of this hearing.

Issue

The preliminary issue to be determined is:

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

Result

Mr. Id was not involved in an “accident” as defined in section 2(1) of the Schedule.

Statutory Framework

The Statutory Accident Benefits Schedule (“the Schedule”) provides for, inter alia, income replacement and medical and rehabilitation benefits for persons who sustain impairments as a result of an accident.

“Accident” is defined in the applicable Schedule as follows:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device; (“accident”)

Positions of the Parties

Mr. Id claims that he was injured when a parked van, of which he was allegedly an occupant, was struck in the rear by a car. The van was owned by his friend Shuiab Mohammed. Mr. Id alleges that Mr. Mohammed and another friend, Dahir Dore, were in the van at the time of the impact.

Unifund alleges that Mr. Id was not occupying the van at the time of the impact, nor did he have any contact with the van or the aforementioned car at the time of the impact.

The Applicant has the burden of proof. He must demonstrate, on a balance of probabilities, that it is more likely than not that he was involved in an incident in which the use or operation of an automobile directly caused an impairment.

EVIDENCE AND ANALYSIS:

Five witnesses gave oral evidence at the hearing of this preliminary issue.

Three witnesses alleged that Mr. Id was occupying the van at the time of the impact:

Hassan Id, the applicant and an alleged occupant of the van
Shuiab Mohammed, the owner of the vehicle and an alleged occupant of the van
Dahir Dore, an alleged occupant of the van

Two witnesses alleged that Mr. Id was not occupying the van at the time of the impact:

Barbara Spyropoulos, co-owner of JFS Restaurant Equipment (“JFS”)
Rajendra Singh, Police Constable

It is not disputed that the van in which Mr. Id claims to have been seated at the time of the impact was struck in the rear by a car, driven by a 14 year old youth, while parked in front of JFS Restaurant Equipment, Unit 18, 2009 Lawrence Avenue West, Toronto (“JFS”). It is not disputed that the van was pushed forward as a result of the collision. It struck and damaged the concrete wall underneath a plate glass window. I will refer to the impact and its aftermath as “the incident”.

In both their written statements and oral testimony, Messrs. Id, Mohammed and Dore, (“the three alleged occupants”) were consistent in their description of their positions in the van. They were consistent in their evidence that they were parked in front of JFS because they planned to go to the Banadir Restaurant at 2007 Lawrence Avenue West, which is across the plaza from JFS. Mr. Id testified they didn’t immediately exit the vehicle upon arrival at JFS because they wanted to smoke and smoking was not permitted in the restaurant.

From there, there are considerable divergences in the evidence given. The evidence of the three alleged occupants conflicts with the evidence of Ms. Spyropoulos and Constable Singh. The oral evidence of the three alleged occupants also conflicts with prior statements given by them. There are substantial inconsistencies in their accounts of the events leading up to the impact. The result is that I find the account of the incident, and the events leading up to it, as given by the three alleged occupants to be not credible. I prefer the evidence of Ms. Spyropoulos and Constable Singh.

Events Leading up to the Impact

Testimony of Mr. Id

Mr. Id’s testimony conflicted with previous statements made by him. He testified that, on the day of the incident, Mr. Mohammed picked him up outside the Istar restaurant at Dixon Road and Islington Avenue, with the intention of going to the Banadir Restaurant. All three of the alleged occupants of the van testified that Mr. Id and Mr. Mohammed spotted Mr. Dore at the intersection of Weston Road and Lawrence Avenue and invited him to join them in their journey to the Banadir Restaurant and that he entered the back seat of the van at that point.

However, at his Examination Under Oath, (“the EUO”) referred to above and conducted on September 13, 2012, Mr. Id indicated that he and Mr. Dore were at Istar restaurant and that Mr. Mohammed picked them up there.² At the same examination he stated that he and Mr. Dore had arrived at the Istar restaurant by taxi. When confronted with the contradiction between the testimony given at the EUO and the testimony given at the hearing, Mr. Id stated that at the EUO he was referring a journey by taxi that he took with Mr. Dore when they left the scene after the impact. He denied owning a vehicle at the time of the incident. However in the record of the Personal Interview conducted one month after the EUO³, Mr. Id indicated that he and his wife had one vehicle, a 2002 Dodge Caravan and that on the date of the incident he left this vehicle at the plaza at Dixon Road and Islington Avenue. Nevertheless, in his testimony he insisted that he and his wife were separated at the time of the incident and that he did not have access to a vehicle and that he travelled to the Istar restaurant by bus. Mr. Id has presented, at different times, three different versions of how he arrived at the Istar Restaurant.

Testimony of Mr. Dore

Mr. Dore’s testimony conflicted with previous statements made by him. Mr. Dore stated that he was picked up by Mr. Id and Mr. Mohammed at the intersection of Weston Road and Lawrence Avenue. However in an Insurer’s Examination report dated November 3, 2010⁴, the examiner indicates that Mr. Dore reported that “he met some acquaintances sitting in a parked car in a parking lot. The evaluee [Mr. Dore] entered the rear of the vehicle. As he was about to put his seatbelt on, a third-party vehicle rear-ended the vehicle”.⁵

When confronted with this discrepancy, Mr. Dore claimed he did not remember telling the examiner how the impact happened.

Mr. Dore’s account of his meeting up with the others, as reported by the Insurer Examination report, could be said to be hearsay. One of the reasons for the exclusion of hearsay is that the reliability of the evidence cannot be tested through cross-examination. That is not the case here. As the maker of the statement, Mr. Dore was present for cross-examination. However, his testimony that he cannot remember making the statement effectively thwarts cross-examination. Yet this evidence is not being proffered as to the truth of the facts in the statement. The fact is that this account of the events leading up to the accident varies to a striking degree from the account given by him in his Personal Interview and in his testimony. His inability to provide a consistent narrative goes to his credibility.

Events after the Impact

The testimony and prior statements of the three alleged occupants are completely at odds with that of Barbara Spyropoulos, the co-owner of the JFS, in front of which the van was parked, and Constable Singh who attended the scene at the request of the property manager.

All three of the alleged occupants indicated that they felt the impact and got out of the vehicle. They variously estimated that they left the vehicle immediately or about two minutes after the impact. Mr. Id testified that there were “lots of Somali people” standing in groups in the plaza and that about ten of them came to the van to see if they were OK. Mr. Mohammed recalled that there were “lots of people” in the plaza after the impact. Mr. Dore testified that there were “over 50” Somalis there.

In his Personal Interview Mr. Id stated:

The vehicle that hit us was a small vehicle. There was a woman in it and she had a young son. I think the son hit the gas pedal and the car hit us. I am not sure what exactly happened. The impact to the other vehicle was to the front end. I got out on my own right away. I saw the woman yelling at her son. There were people all around. The young boy tried to run away. At the time I felt fine. I had another friend come over and drive me to my van and I drove home.

In his testimony Mr. Id stated that there was no woman in the car. He said he didn’t know if the boy ran or not. He denied making the above statement. The statement above also contradicts his testimony that he did not own a vehicle at the time of the incident.

Mr. Dore also stated in his Personal Interview that “the young boy tried to run away”. Under cross-examination at the hearing Mr. Dore persistently denied making that statement.

Ms. Spyropoulos testified that she was at work in the office of JFS in the afternoon of June 21, 2010. She indicated that the office area was at the back of the store and was separated from the front of the store by a showroom. She estimated that the distance from the office to the front door is about 30 feet. She testified that sometime after 5 p.m. she heard a bang and that she immediately went to investigate. She testified that before coming to the hearing she timed how long it would take her to leave her office, cross the showroom and exit the store and that the result was 11 to 12 seconds. She estimated that on the day of the incident it took her 8 to 9 seconds because “I’m a fast walker” and in any case she was confident it did not take her more than 11 seconds. On leaving the store she saw two vehicles, the van and a car with “a kid” in the driver’s seat “clutching” the steering wheel. In contrast to the testimony of the three alleged occupants, she indicated that there was no one in the van and the van’s doors were closed. She also testified that no one else was in the area until a woman she took to be the driver’s mother exited the Banadir Restaurant and headed towards the car, followed by “two or three guys”. She testified that the woman extricated the youth from the car and Ms. Spyropoulos asked if he was OK. She indicated that at the same time she saw a man walking towards them and she assumed he was the owner of the van. She later confirmed with him that he was the owner of the van. She indicated that he was “perfectly fluent” in English. She stated that she had a discussion with the youth, the woman and the owner of the van and that she invited them to use the JFS photocopier to copy their documents to facilitate the exchange of information. This conflicts with testimony given by Mr. Mohammed. According to Mr. Mohammed he and the youth’s mother wrote out their particulars by hand. He also testified that no one came out of the JFS business establishment after the impact.

Constable Singh testified that he attended at JFS at 19:48 hours or 7:48 p.m. in response to a request relayed through a dispatcher. Constable Singh testified that he took notes, which he identified as being reproduced.⁶ He testified that he took a statement from Mr. Mohammed after advising him that he didn’t have to say anything and that Mr. Mohammed signed the statement, a copy of which is contained in the notebook. In his testimony Mr. Mohammed acknowledged that the signature appearing in Constable Singh’s notebook was his. He indicated that he conversed with Mr. Mohammed in English and that Mr. Mohammed did not seem to have any difficulty understanding him. Constable Singh testified that Mr. Mohammed told him that he (Mr. Mohammed) was at the other end of the plaza talking to a friend when the impact happened. This is reflected in Constable Singh’s notes.

Constable Singh also testified that he completed a Motor Vehicle Accident Report on July 7, 2010.⁷ At box 45, on the right side of the report, Constable Singh recorded the impact type as a “06”, or “SMV unattended vehicle”.⁸ Section 2 of the Report, which provides for a driver’s name and address, had been left blank by Constable Singh. There is a line drawn through that section and the words “Parked Auto” are printed there.

In an affidavit sworn April 26, 2013, Mr. Mohammed deposes that: “[He] didn’t inform the police officer that there were passengers in my vehicle, because I was not asked. The police officer’s notes…are not an accurate reflection of what took place that day”.

Analysis

The testimony of Ms. Spyropoulos and Constable Singh regarding the aftermath of the impact varies significantly from the testimonies of the three alleged occupants. Neither Ms. Spyropoulos nor Constable Singh witnessed the impact. However, Ms. Spyropoulos testified that she attended the scene within eleven seconds of the impact. There is no reason to doubt her testimony that she immediately went to investigate the source of the noise. She was very clear in her testimony that there was no one in the van.

Evidence was introduced that Ms. Spyropoulos has been the Chair of the Community Police Liaison for Division 12 of Toronto Police Services and that she knew Constable Singh on a casual basis from her work with the Division and that at one point, while both were at the station, Constable Singh had identified her as a witness to the aftermath of the incident and that they had a brief conversation about the incident. Counsel for Mr. Id, in his submissions, suggested that as a result, their recollection of events has been tainted and clouded with the opinions of the other. However, Constable Singh was not present at the immediate aftermath of the impact, as Ms. Spyropoulos was. It is difficult to understand how he could taint her evidence in that regard. Certainly Ms. Spyropoulos’s observations could have no impact on the statement made by Mr. Mohammed to Constable Singh. There is insufficient evidence to conclude that Constable Singh and Ms. Spyropoulos have “tainted” each other’s recollections or that they have somehow colluded in the presentation of their evidence.

Constable Singh took a signed statement from Mr. Mohammed within an estimated three hours of the impact. At that time Mr. Mohammed indicated that he was on the other side of the plaza, speaking to a friend when the impact happened. There is little reason to question the veracity of Constable Singh’s recollection or the accuracy of his notes, which Mr. Mohammed admits endorsing at the time. Mr. Mohammed swore in an affidavit⁹ that he did not refer to there being passengers in the van because “[he] was not asked”. However this statement does not address the question of his occupancy or non-occupancy in the van and why he indicated to Constable Singh that he was on the other side of the plaza at the time of the impact.

There are substantial discrepancies among the accounts of the three alleged occupants as to how they came to be in the van and the aftermath of the impact It is impossible to reconcile these accounts. The factual variation among them is so wide that it cannot be attributed to the fact that none of the alleged occupants’ first language is English. There is nothing to suggest that any of the alleged occupants have seriously deficiencies in English such as to lead to misunderstandings and inconsistencies. While three and one-half years have passed since the incident, the passage of time should not change the alleged occupants’ recollections to such a degree.

Neither Constable Singh nor Ms. Spyropoulos have any interest in the outcome of this arbitration. Their evidence was internally consistent and consistent with each other. The evidence of the alleged occupants was markedly less so. I prefer the evidence of Ms. Spyropoulos and Constable Singh. I find that none of Mr. Id, Mr. Mohammed or Mr. Dore were occupying the van at the time of the impact, nor were they in any contact with it when the impact happened. Any impairment suffered by Mr. Id was not the result of an incident involving the use or operation of a motor vehicle and therefore does not meet the definition of an accident as set out in section 2(1) of the Schedule.

In her submissions, counsel for Unifund has asked that Mr. Id’s claim for Accident Benefits be dismissed. A hearing to decide the outstanding “substantive” claims as set out in the pre-hearing letter dated June 13, 2013, including a claim by TD for repayment of benefits paid, is set for April 28, 29, 30 and May 1, 2014 at the offices of the Financial Services Commission. I leave it to the hearing arbitrator to make the final determination regarding Mr. Id’s claims and the claim for repayment of benefits.

March 24, 2014

Stuart J. Mutch

Arbitrator

Date