Neutral Citation: 2015 ONFSCDRS 110 FSCO A11-001755, A11-001757 and A11-001867

BETWEEN:

THEODORA AGYEMANG, AMA BOATENG and PRINCE ANOKYE Applicants

and

PAFCO INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Robert Bujold Heard: July 2, September 30, October 1 and 29, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jonathan Tkatch and Kwaku Bona for the Applicants Sean Brown for Pafco Insurance Company

Issues:

The Applicants claim to have been injured in a motor vehicle accident on December 5, 2009. They applied for statutory accident benefits from Pafco Insurance Company (“Pafco”), payable under the Schedule.¹ Pafco challenged the Applicants’ assertion that they were involved in an “accident” as defined in the Schedule. 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.

The parties agreed that the issue of whether the Applicants had been involved in an “accident” should proceed 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 subsection 2(1) of the Schedule?

Result:

The Applicants were involved in an “accident” as defined in subsection 2(1) of the Schedule.
The Applicants are entitled to their expenses of the preliminary issue hearing. If the parties are unable to agree on the quantum of expenses, any party may request a determination in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

The Issue Defined

In order to maintain their claims for accident benefits, the Applicants must establish that they were involved in an “accident” which is defined in subsection 2(1) of the Schedule as follows:

2(1) In this Regulation,

“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”)

The parties agreed that I did not need to consider whether the incident caused any “impairment,” even though it is a constituent element of an “accident.” Instead, Pafco’s challenge focuses on the Applicants’ version of events as they relate to the purported motor vehicle collision. Pafco puts the Applicants to the strict proof that a collision occurred “as reported.”

With respect to the significance of the Applicants’ report, Pafco accepts that there may be some inconsistencies in the Applicants’ evidence without it necessarily leading to a conclusion that they were not involved in a motor vehicle collision on the occasion in question or that any collision was staged. However, Pafco maintains that the Applicants’ evidence must be sufficient to not only satisfy me on a balance of probabilities that they were involved in a collision, but also that the collision was, as reported, “accidental.” Pafco maintains that it does not have to plead or establish fraud or material misrepresentation in order to trigger this requirement. Pafco submits that the requirement that the incident be “accidental” is inherent in the definition of “accident.”

In support of its position, Pafco referred to the appeal decision in Economical Mutual Insurance Company and J.E.² In that case, the Director's Delegate considered the definition of “accident.”³ Although a defined term, the Director’s Delegate noted that the term “accident” has a common law history that is not irrelevant. As he put it, “[t]he question is the extent to which the definition in section [2] alters its common law meaning.” As for its common law meaning, the Director's Delegate noted that “[t]he cases make it clear that it is the perspective of the insured person that is critical. It is not an accident if the injured person intentionally causes his or her own injuries.” He further noted, however, that “this does not mean that the injured person must be ‘blameless.’ An injury may be accidental even if the injured person acted recklessly, as long as he or she did not voluntarily ‘look for’ or ‘court’ the risk of that injury.” The Director’s Delegate then went on to consider whether the definition in the Schedule was “lexical” (where the definition corresponds to the normal usage of the word) or “stipulative” (where the definition is given a different meaning). After a lengthy analysis, the Director's Delegate concluded that the definition was lexical, and not intended to expand the scope of “accident” beyond its common law meaning.

I am satisfied that Pafco has correctly framed the onus on the Applicants. Apart from being bound by the Director’s Delegate’s decision, I find it persuasive that the definition of “accident” should be restricted to incidents which are “accidental” in nature, at least from the perspective of the person claiming accident benefits, and should not include incidents where the person intentionally looked to cause his or her own injuries. I agree, therefore, that the Applicants’ onus to establish that they were involved in an “accident” inherently includes establishing that the incident, in this case a collision, was accidental.

As a practical matter, however, few cases turn on the onus of proof. Whether it is an insured person’s onus to establish that an incident was accidental (ss.2(1)) or an insurer’s onus to establish that an insured person made a wilful misrepresentation for the purpose of terminating a benefit (ss.48(1)) or seeking repayment (ss.47(1)(a)), the preponderance of the evidence will usually weigh sufficiently on one side or the other to permit a determination without resort to who bore the onus.

In this case, I am satisfied for the reasons that follow that, on a weighing of all of the evidence, the Applicants have met their onus.

The Applicants’ Evidence

Mr. Anokye is a registered nurse who has worked at St. Michael’s Hospital since 2003. Mr. Anokye and Ms. Boateng have three children together (two at the time of the accident) although they are not married and do not live at the same residence. Ms. Boateng did not work outside the home at the time of the accident. Ms. Agyemang is a friend and relative of Ms. Boateng. Ms. Agyemang has worked as a warehouse associate at Holt Renfrew for the past 9 years. She has two children. At the time of the accident, Ms. Boateng and Ms. Agyemang resided at the same apartment building in Etobicoke.

Mr. Anokye, Ms. Boateng and Ms. Agyemang all testified at the hearing. The Applicants recounted versions of events that were substantially similar and largely consistent, although there were some discrepancies that I will discuss.

The Applicants testified that, on the evening of December 5, 2009, they attended a family gathering and dinner at Mr. Anokye’s parents’ house. They had arrived together in Mr. Anokye’s 2007 BMW 530i. After dinner, Ms. Agyemang received a call from a male friend, Mr. Kofi Osei, who asked if they would mind picking him up from a Seventh Day Adventist Church located on Attwell Drive just south of Highway 409. Being uncomfortable with asking Mr. Anokye directly, Ms. Boateng testified that she asked Ms. Agyemang to ask Mr. Anokye if it would be okay. Mr. Anokye agreed. Shortly thereafter, they left to pick up Mr. Osei.

The Applicants testified that, shortly before their destination,⁴ a vehicle came out from a driveway servicing a commercial building on the east side of Attwell and struck the BMW on the rear passenger side. The collision caused the BMW to spin somewhat clockwise and come to rest with the nose of the BMW over the curb on the east side of Attwell. The other vehicle, a 2007 Ford E250 van, proceeded across the 4 lanes of Attwell and struck a utility pole on the west side of the street. The driver of the Ford van fled and was not seen by the Applicants. It turned out that the Ford van was a stolen vehicle. The Applicants have been consistent that they did not see the Ford van prior to being struck.

Pafco takes issue with several aspects of the Applicants’ evidence.

Pafco notes that the Applicants had somewhat different estimates for when they left Mr. Anokye’s parents’ house to pick up Mr. Osei (varying between 8:00 and 8:15). They also had somewhat differing estimates of how long it took to drive from Mr. Anokye’s parents’ house to the location of the purported accident (varying between 20 to 30 minutes and 30 to 45 minutes). All of the estimates would have had the Applicants at the scene of the accident at least 15 to 30 minutes before the estimated time of the accident noted on the MVA report (21:15).

Pafco also notes that there is inconsistency regarding where Ms. Agyemang was sitting in the back of the BMW, and inconsistency related to which doors Ms. Agyemang and Ms. Boateng exited the BMW following the accident.

Finally, and perhaps most importantly, Pafco notes that the Applicants all had differing estimates for the speed of the BMW at the time of impact (varying from 10-25 km/hr to 50 km/hr), and those estimates all differ from the MVA report (40 km/hr).

While some of the inconsistencies were not insignificant, I did not find that overall they substantially impugned the Applicants’ credibility. Estimates of time, speed and distance are all matters where variance is common. In fact, too high a degree of consistency in regard to such matters can, in itself, raise suspicion that evidence has been fabricated and rehearsed.⁵

With respect to the estimates of time, I note that the officer who prepared the MVA report did not testify. As a result, it is not clear how or from whom the officer arrived at the estimate in the MVA report. In any event, I do not find the difference between the Applicants’ estimates and the estimate in the MVA report to be significant or material.

As for Ms. Agyemang’s location in the BMW, both she and Ms. Boateng have been consistent that she was sitting in the rear seat on the driver side.⁶ Mr. Anokye initially placed Ms. Agyemang in the back seat behind Ms. Boateng on the passenger side, but at the hearing he gave evidence that Ms. Agyemang was riding in the back seat behind him on the driver side. Mr. Anokye explained that, following the accident, he saw Ms. Agyemang try to exit the vehicle on the passenger side, so that is why he mixed up where she had been sitting during the drive before the collision. I find this explanation plausible. I also find that Mr. Anokye is the person likely to be paying the least attention to where Ms. Agyemang was sitting in the back seat, since his attention would have been on his driving.

As for the doors through which they exited, Ms. Boateng and Mr. Anokye testified that all of the Applicants exited through the driver side doors, as the car had been hit on the passenger side and a curtain-type side airbag had deployed. Ms. Agyemang, however, maintains that not only did she try to exit the vehicle by the passenger side door (as Mr. Anokye stated), but she testified that she was successful in exiting by that door. She testified that the side airbag only extended part way down from the top of the door and did not prevent her from exiting on the passenger side. She explained that she was intent on exiting by that door because she sensed that it would be safer to exit on the curb side of the car than it would to exit on the driver side.⁷ Ms. Agyemang testified that she believed Ms. Boateng had also exited on the passenger side.

I find the discrepancy between the evidence of Ms. Boateng and Mr. Anokye, on the one hand, and Ms. Agyemang, on the other, as to which doors the Applicants exited the vehicle to be minor and inconsequential. Further, I expect that, while they believe their evidence in this regard to be accurate, it was likely informed by their respective sense of what was reasonable for each of them to do in the circumstances. I was not persuaded by the specific questions and answers that they had specific recall.

Finally, with respect to the speed of the BMW at the time of impact, Mr. Anokye believes he may have told the investigating officer that he was not speeding, but he could not recall giving the officer an estimate of 40 km/hr as reflected in the MVA report. Nor does he recall giving the officer an estimate of the speed of the van that hit him, also estimated at 40 km/hr in the MVA report. Although Mr. Anokye believes that the Ford van was travelling fast based on the impact, Mr. Anokye was firm that he could not give an estimate of its speed. As noted above, the Applicants testified that they did not see the Ford van prior to impact.

At the hearing, Mr. Anokye maintained the speed estimate of 10 to 25 km/hr that he had provided to the Applicants’ accident reconstruction expert, Mr. Jason Bayley. Mr. Anokye testified that he wasn’t really sure how fast he was travelling, but he would put his estimate in that range because they were approaching the location of the church and he was looking for it. He confirmed that he was not using a navigation device to assist him locate the church.

I note that neither Ms. Boateng nor Ms. Agyemang appear to have been asked to provide an estimate of the BMW’s speed when they gave their statements in June 2010 or at their examinations under oath in June 2011. At the hearing, Ms. Boateng estimated that the BMW was travelling at a speed of 15 to 20 km/hr, squarely within the range provided by Mr. Anokye. Ms. Agyemang gave her first estimate at the hearing of 50 km/hr, although she also testified that they were not really moving that fast and, on re-direct, confirmed that they were all looking out for the church.

The Applicants’ evidence regarding the speed of the BMW is somewhat problematic but, again, I do not find that it impugns their credibility. The Applicants testified that they had never been to the church previously. I accept that they were looking for the church at the time of impact, and therefore travelling at a reduced speed that would be difficult for them to estimate with a good degree of reliability. Their attention would have been focussed on finding the church, not the speedometer. I also expect that Ms. Agyemang, being seated in the back, would be in the worse position to provide an accurate estimate of their speed.

Having addressed the inconsistencies noted by Pafco, I note that there were also many consistencies in the Applicants’ evidence, as well as circumstantial evidence, supporting the Applicants’ accounts as credible. For example, unlike estimates of speed, time and distance, one would expect a high degree of accuracy and consistency in recalling the events of the evening prior to the incident. In that regard, the Applicants’ accounts were internally consistent and consistent as amongst them. They exhibited good demeanour, provided their evidence in a straightforward manner, and their accounts seemed plausible.

The events following the incident are also relevant. The Applicants testified that, in addition to the deployed air bag, the OnStar automatic crash response was also activated. They also testified that an RCMP officer in an unmarked car happened on the scene within moments⁸ after the incident. Mr. Anokye believes the officer was travelling behind him, but he did not know whether the officer had witnessed anything. The officer did tell them to return to their vehicle, as they had exited the BMW and it was an “extremely” cold night. The officer then investigated the Ford van on her own, and returned to advise the Applicants that the occupant(s) of the van had fled.⁹ The local police had been called, and the RCMP officer remained at the scene until the police arrived. According to Mr. Anokye, when the local police arrived on the scene, they spoke to the RCMP officer before they spoke to him. He believes that she communicated to them what she saw (if anything), and told them that the incident appeared to be a hit and run.

As a result of the investigation at the scene, no charges were laid or cautions issued, and it appears that no accident reconstruction or other investigations were ever pursued. No officers were called to give evidence at the hearing.

As a result of the damage to the BMW, it was undriveable and had to be towed.

While clearly not determinative, the fact that an RCMP officer happened on the scene within moments of the incident, and that neither that officer nor the local police appear to have had any suspicions that an accident did not take place or that any collision was staged, is at least somewhat supportive of the Applicants’ claims that they were involved in an accidental collision. The fact that the BMW was undriveable and had to be towed would also suggest strongly that some sort of collision likely occurred at the scene. Certainly if the full extent of the damage to the BMW was pre-existing, it would beg the question of how the undriveable car got to the scene. It would also beg the question of how the OnStar system became activated.

I also find it pertinent to note that Mr. Anokye had only acquired the BMW earlier that same year. It was a vehicle that had been involved in a prior serious collision and had to be re-built. In short, it had been deemed a “write-off” by an insurer. Mr. Anokye paid $16,500 for the vehicle. In addition to the purchase price, Mr. Anokye spent considerable time and money repairing the car so it could be certified as roadworthy. The repairs took several months to complete, and Mr. Anokye estimated that perhaps $10,000 had been spent on the repairs and upgrades. The BMW had only been on the road and insured with Pafco since or about October 1, 2009 when the accident occurred on December 5, 2009. The fact that Mr. Anokye had invested so much time and money getting the BMW certified and on the road would seem to make it unlikely that he would use this vehicle to stage an accident.¹⁰ Further, I note that Mr. Anokye returned to work on modified duties a few weeks after the incident. Other than a claim for housekeeping, Mr. Anokye’s substantive claims in this arbitration are for the cost of examinations and medical treatments. At least for Mr. Anokye, the monetary motives of staging an accident with his newly rebuilt BMW are not readily apparent.

Certainly on the basis of the Applicants’ evidence and the circumstantial evidence, I found the Applicants’ claim that they were involved in an accidental collision on the evening of December 5, 2009 to be quite persuasive. Pafco maintains, however, that its expert accident reconstruction evidence should lead me to the opposite conclusion, even though, as noted, it does not have the onus to prove that a collision did not take place or that any collision was not accidental.

The Expert Evidence

Pafco relied on the accident reconstruction evidence of Mr. Sam Kodsi of Kodsi Engineering. The Applicants relied on the accident reconstruction evidence of Mr. Jason Bayley of Rochon Engineering.

Mr. Kodsi prepared an initial report dated June 30, 2010. Mr. Bayley was retained closer to the hearing to review and provide an opinion on the findings and conclusions in Mr. Kodsi’s report. Mr. Bayley’s initial report is dated March 28, 2014. Mr. Kodsi and Mr. Bayley then each prepared supplementary reports dated May 22, 2014 and June 2, 2014, respectively. In addition to these four reports, Mr. Kodsi and Mr. Bayley also testified at the hearing.

I did not find the accident reconstruction evidence to be particularly helpful or persuasive in this case.

Mr. Kodsi’s initial report in June 2010 concluded that “there was no evidence of contact between the vehicles.”¹¹ Responding to Mr. Bayley’s opinion in March 2014 that there was evidence to support a collision as reported, Mr. Kodsi’s supplementary report in May 2014 twice repeated the assertion that “there was no evidence of contact between the two vehicles.”¹² For the reasons already given, and for the reasons that follow, I do not accept this conclusion.

At the hearing, Mr. Kodsi attempted to clarify or amplify his opinion by stating that he was not saying that the vehicles did not come into contact, but simply that the damage in its entirety was not consistent with a collision between the two vehicles, as reported. Further, if a collision did take place, as reported, he would expect at least some of the damage to look very different. I accept that there is a reference in Mr. Kodsi’s May 2014 supplementary report that “the damage as a whole exhibited by the two vehicles did not correspond to the scenarios proposed by Mr. Bayley,”¹³ but this was in response to a specific observation made by Mr. Bayley in his March 2014 report. It would require a very generous interpretation, inconsistent with Mr. Kodsi’s repeated use of the phrase “no evidence of contact,” to find that the opinion provided by Mr. Kodsi in his written reports included the reasonable possibility of any collision between the BMW and the Ford van. As well, if Mr. Kodsi’s opinion did include the possibility that some of the damage may have been caused by contact between those two vehicles, I would expect his evidence to have been more direct in identifying the consistencies as well as the inconsistencies, which it was not. As a result, I found Mr. Kodsi’s evidence on the likelihood of any contact between the vehicles to be somewhat confusing and vague.

Notwithstanding my concern regarding the issue of any evidence of contact, Mr. Kodsi did raise some genuine concerns regarding the relative heights, widths and profiles of the damage on the two vehicles, as well as the reported sequence of events. However, for the reasons that follow, I find that Mr. Bayley’s responses to these concerns were sufficient to counter the proposition that the accident could not have occurred as reported (even though I also find that the crash simulations generated by both Mr. Bayley and Mr. Kodsi were generally unhelpful).¹⁴

Regarding the height and width of the range of damage on the two vehicles, Mr. Kodsi found that they did not correspond. On that point, I note that neither Mr. Kodsi nor Mr. Bayley had the opportunity to inspect the Ford van.¹⁵ I agree with Mr. Bayley’s observation that photos of the van appear to show some damage toward the center of the bumper that would extend the range of damage to the Ford van considerably beyond the width estimate in Mr. Kodsi’s report.¹⁶ I note that, in cross-examination, Mr. Kodsi did not dispute that the photos of the Ford van may show damage to its bumper closer to the center.

As for the height of the damage, Mr. Bayley opined that, while there was some apparent difference, it could be accounted for in different ways. The uppermost damage on the BMW corresponds with the hood of the Ford van. Although the photos of the Ford van don’t seem to show damage in that area, it cannot be ruled out. As well, Mr. Bayley opined that some of the damage in that area (referred to by Pafco as the “bowl”) could be “induced” damage, meaning that it could be buckling secondary to and outside the area of “contact” damage. Mr. Bayley noted that the extensive prior repairs to the BMW could account for some aberrations in the way the damage might manifest. He also noted that there did not appear to be scuffs in the area of the “bowl,” as he observed in other areas of contact damage. I accept Mr. Bayley’s opinion that, as a result of some combination of the above factors, the upper damage to the BMW could be explained by a collision consistent the Applicants’ report.

With respect to the height of the main horizontal damage on the BMW (a fairly narrow dent running for approximately 113 cm along its rear passenger side), I note that Mr. Kodsi agreed with the observation I put to him that this mid-height damage appeared to generally correspond with the height of the bumper on the Ford van.

As for the lowermost damage to the BMW, Mr. Bayley opined that the lower portion of the Ford van structure, visible on photos below the bumper, could have come into contact with the BMW during the wheel well denting at maximum engagement. Again, this is something that is difficult to discern with any degree of certainty from the photos of the Ford van, but it does appear that the structure below the bumper may also be damaged.

I should also mention that, regarding a comparison of the height of the damage on the two vehicles, I was not persuaded that the fact that the BMW had low profile tires (something Mr. Bayley did not recall being aware of) was a sufficiently significant fact as to render Mr. Bayley’s opinion unreliable. I accept that, while the slope of the driveway that the Ford van exited was estimated to be modest, the combination of the slope and any braking by the driver of the Ford van just prior to impact could cause some pitching and affect a comparison of damage heights.

Regarding the profile of the damage, Mr. Bayley emphasized his opinion that the damage to the BMW was likely a combination of contact and induced damage. He also opined that the collision may very well have had a sliding component, or rotation as a result of certain structures on the vehicles snagging or catching during impact, especially possible in this case in the area of the BMW’s wheel well. This could cause a continuous or long-duration impact, where the damage to the BMW would not be caused all at the same moment, and therefore not line up perfectly with the vertical profile of the Ford van. Mr. Bayley proffered this explanation in response to Mr. Kodsi’s criticism that the “damage as a whole” could not be explained by Mr. Bayley’s analysis.

In short, Mr. Bayley found that the overall damage heights and widths did sufficiently match when considering the different types of damage, contact and induced, and that he was able to match and identify specific structures on the Ford van corresponding to the observable damage on the BMW.¹⁷ I accept Mr. Bayley’s conclusions in that regard. Certainly from an unsophisticated examination of the photos, the damage appears to generally line up.

Regarding the sequence of events, Mr. Kodsi opined that, contrary to the Applicants’ report, the damage to the BMW suggested that it was stopped when it was hit. This was based, in part, on what Pafco characterized as the “bulge.” According to Mr. Kodsi’s analysis, there is a bulge to the right of the main horizontal damage to the BMW that evidences a direction of force from back to front. The direction should be from front to back, if the BMW was moving forward at the point of impact, as reported.

Mr. Bayley questioned whether the damage truly reflected a back to front force. He opined that the bulge, as with some of the other damage, could be induced damage, noting again that the area of contact had been the subject of extensive prior repairs which could have affected the way in which the metal deformed. A sliding component to the impact, as a result of the vehicles getting caught up with each other, could also result in some lateral forces contributing to the damage. Mr. Bayley also noted that the existence of horizontal scratches on the BMW suggested that it was moving at the point of impact. He noted that, if the BMW had been stopped, he would have expected the presence of vertical scratches, as one would be likely to observe in a rear-end type collision. Mr. Kodsi, on the other hand, not only found that the BMW was in all likelihood stationary when it was struck, but also that “the striking vehicle was likely at a near-perpendicular angle.”¹⁸ I did not find that the horizontal scratches, and Mr. Kodsi’s opinion that the damage exhibited a forward direction of force, were well explained by his scenario of a stopped vehicle being struck at a near-perpendicular angle. While I accept that the Applicants may have been travelling quite slowly at the time of impact, I am not persuaded that the BMW was likely stopped when it was struck.

Mr. Kodsi also took issue with the crash simulations conducted by Mr. Bayley. Mr. Bayley had conducted many simulations using PC Crash Software in order to see if he could reproduce results that were generally consistent with a collision, as reported. Mr. Bayley noted that the primary goal of these simulations was to determine whether an impact to the right rear of the BMW could cause the vehicle to turn in an easterly (clockwise) rotation and mount the east curb of Attwell Drive. Mr. Bayley was able to find at least one set of inputs that generated the scenario he was looking for, but Mr. Kodsi criticized the approach as simply an exercise in manipulating input variables until you get the desired result. Even Mr. Bayley admitted that “with so many settings, almost anything is possible to simulate in the PC Crash software.”¹⁹ For this and other reasons outlined below, I found the PC Crash simulations in this case to be of limited value.

Much of Mr. Kodsi’s specific criticism regarding Mr. Bayley’s use of the PC Crash simulation software related to his placement of the “contact plane” in his simulations.²⁰ Mr. Kodsi testified that Mr. Bayley had misplaced the contact plane with the result that all of his simulations generated unrealistic and even nonsensical post-impact movements. Mr. Kodsi noted that if the contact plane were properly placed, the simulations resulted in very different movements and speed changes for the two vehicles.

Mr. Bayley responded that, in full or “rough” type impacts, as demonstrated by Mr. Kodsi’s simulations, the contact plane is of no significance according to the PC Crash manual. However, the collision in this case may have had a sliding component resulting in both rough and sliding impacts, and the contact plane used by him represented the direction of the slide. Mr. Bayley conceded though that, while PC Crash simulation software does a good job of simulating what may be referred to as fairly straightforward collisions, especially where most inputs are known, it is unable to simulate for both rough and sliding impacts in the same simulation.

While I did not find Mr. Bayley’s explanation for the angle of the contact plane he used to be entirely satisfactory, the simulations conducted by both Mr. Bayley and Mr. Kodsi suffer from a greater concern. Many inputs regarding the accident, used by PC Crash to calculate post-impact motion, are unknown or unaccounted for in the simulations, including: actual impact speeds of both vehicles; actual impact angle; driver pre and post-impact steering inputs; driver pre and post-impact braking inputs; and, driver pre and post-impact accelerator pedal inputs. Given that the Ford van was stolen, it would not be surprising to find that the driver of the Ford van was driving erratically, both pre and post-impact. The fact that the Ford van ended up against a utility pole on the far side of the four lane road following the impact with the BMW would seem to support this proposition. This is just one set of inputs that are unknown. Without a sufficient number of reasonably reliable inputs, it seems to me that the simulations are speculative, easily manipulated and of limited value.

Another problem with the simulations is that they were used, at least in part, to see if it were possible for the BMW to mount the east curb of Attwell, as both Mr. Bayley and Mr. Kodsi initially understood to be the case. While the Applicants’ evidence may have given this impression, it appears that only the front end of the BMW “mounted” (or extended over) the curb. The wheels apparently did not mount the curb.²¹ So, in addition to all the pre and post-impact inputs that are not known or accounted for in the simulations, even the result that the software was used to try to simulate was not accurate.

Conclusion

While it is clear that some of the damage to the BMW and the Ford van was atypical or unexpected given the physical evidence and the Applicants’ report, Mr. Kodsi agreed in cross-examination that it is not especially unusual to see damage that is not expected. Accidents, and resultant damage, may occur in unexpected ways as a result of a confluence of many variables, some of which may be unknown. I believe that is likely the case here. I find that most of the damage was consistent with a collision between the two vehicles, and the atypical or unexpected damage can be reasonably explained by a likely combination of several variables including, but not limited to: a possible snagging of the two vehicles during the collision; the existence of extensive prior damage and repairs to the BMW; induced damage; and, the probable erratic driving by the driver of the Ford van. Other unknown variables may have also been at play.

For the reasons noted, I have found the Applicants credible, the circumstantial evidence largely corroborative of the Applicants’ account, and much of the expert evidence problematic and/or far from conclusive. Having considered and weighed the evidence as a whole, I am satisfied that the Applicants have met their onus of establishing, on a balance of probabilities, that they were involved in an “accident” as defined in subsection 2(1) of the Schedule.

EXPENSES:

I exercise my discretion to award the Applicants their expenses of the preliminary issue hearing. If the parties are unable to agree upon the quantum of expenses, any party may request a determination in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 26, 2015

Robert Bujold Arbitrator

Date

Financial Services Commission of Ontario