Neutral Citation: 2015 ONFSCDRS 35 FSCO A12-000757

BETWEEN:

JOHN OSARO Applicant

and

PAFCO INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Jessica Kowalski Heard: September 29, 30 and October 1, 2014, in Hamilton, Ontario. Written submissions were received on October 31, 2014.

Appearances: Michael W. Kelly for Mr. Osaro Daniel J. Rosenkrantz for Pafco Insurance Company

Issues:

The Applicant, John Osaro, claims he was injured in a motor vehicle accident on May 30, 2010. He applied for statutory accident benefits from Pafco Insurance Company (“Pafco”), in accordance with the Schedule.¹ Pafco alleges that Mr. Osaro was not involved in an accident as defined by the Schedule, and that Mr. Osaro is therefore not entitled to claim accident benefits as a result. The parties were unable to resolve their disputes through mediation, and Mr. Osaro applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issue:

The preliminary issue is:

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

Result:

Mr. Osaro was not involved in an “accident” on May 30, 2010, as defined in section 2(1) of the Schedule. The application for arbitration is therefore dismissed.

Background

Mr. Osaro claims that he was involved in a motor vehicle accident on the evening of May 30, 2010 while visiting Toronto from Hamilton. He claims he was driving his white 1999 Oldsmobile Silhouette van (the “Oldsmobile”) when he crossed an intersection and struck a maroon Acura MDX SUV (the “Acura”) as it attempted a left turn from a plaza and drove into his path, causing a t-bone style collision.

Pafco submits that Mr. Osaro has misrepresented that a collision occurred between the Oldsmobile and the Acura or that, if the two vehicles did make contact with each other, it was not in the manner that Mr. Osaro described.

EVIDENCE and ANALYSIS

On the evidence before me, I find that the physical damage is not consistent with a collision between these two vehicles as reported. Although it is apparent that both the Oldsmobile and the Acura sustained damage in some sort of collisions, I am not persuaded that they collided or came into contact with each other, as Mr. Osaro alleged.

I find that there are inconsistencies within Mr. Osaro’s evidence and discrepancies between his evidence and that of his witnesses. While on their own I find that these discrepancies might be easily explained, considered as a whole I find that they cast doubt on the credibility of Mr. Osaro’s account.

With respect to experts, for reasons set out below I have preferred the evidence of Rob Seaton, an accident reconstructionist who prepared a report at Pafco’s request over that of Raffi Engeian, an engineer who prepared a report for Mr. Osaro.

The lay witnesses

Mr. Osaro’s evidence was that he travelled from Hamilton to Toronto on May 30, 2010 to talk to his cousin and her husband, with whom she was having difficulties.

He testified that he intended to bring along for support Emanuel Emarenona, a friend of his in Toronto. While he was en route to Mr. Emarenona’s house, Mr. Osaro’s cousin’s husband called Mr. Osaro on his cell phone to say that he would not be home. Mr. Osaro continued to Mr. Emarenona’s house anyway, where he met Mr. Emarenona and two of Mr. Emarenona’s friends, Desmond Amufua and an unnamed female. The four set off in the Oldsmobile with Mr. Osaro driving, Mr. Emarenona in the front passenger seat, and Mr. Amufua and the female passenger in the rear.

Of the four occupants of the Oldsmobile, Mr. Osaro and Mr. Emarenona testified at the hearing. I find that their evidence is not credible, beginning with their reasons for being on the road at that time in the first place. Their evidence is at odds about what they were doing and why, and I find that the inconsistencies cast an aura of improbability about the incident and whether an accident happened as they say.

Mr. Osaro and Mr. Emarenona each gave different reasons for being on the road. Mr. Osaro testified that they were going to a mall to shop. According to Mr. Emarenona, they were going to drive around and look for a place to “hang out and chill”, and that they decided to look for a movie theatre.

Each gave conflicting evidence about how they would get to their destination. Mr. Osaro testified that he did not know Toronto and was relying on Mr. Emarenona for directions. Meanwhile, Mr. Emarenona testified that he was unfamiliar with the area and did not know where they were going.

Along the way, Mr. Osaro testified that he made a brief stop to meet with his cousin’s husband while his passengers stayed in the vehicle. In contrast, in statements they each signed on July 9, 2010, both Mr. Emarenona and Mr. Amufua stated that they made no stops between Mr. Emarenona’s apartment and the alleged accident. According to Mr. Emarenona’s statement, “[w]e made no stops between leaving my place and the accident.” Similarly, Mr. Amafua’s statement reads, “[w]e made no stops between leaving Emmanuel’s and the accident.”

Finally, the evidence of all three (including Mr. Osaro’s testimony and his August 31, 2010 statement to Pafco) varies by up to three hours with respect to the time that Mr. Osaro arrived at Mr. Emarenona’s apartment and the time that they left, and none accounted for a lengthy gap between their departure from the apartment and the accident. Mr. Emarenona’s apartment at the time was in Toronto; neither witness explained why they would look for a mall, movie theatre, or a place to hang out in Vaughan, almost 30 km away, where the incident occurred.²

As noted above, I find that each of these inconsistencies could on their own be easily explained. Together, however, they cast doubt on the credibility of Mr. Osaro’s version of the events of that evening.

The alleged collision

Mr. Osaro testified that he was travelling with the flow of traffic, at approximately 40-50 km/hour.³ Approximately 10-15 feet after he crossed the intersection of Keele and Major Mackenzie, he says his Oldsmobile struck the Acura as the Acura exited a plaza to make a left turn through Mr. Osaro’s path. Mr. Osaro testified that he did not have time to brake to avoid a collision. The Oldsmobile struck the Acura on the driver’s side between the front and rear driver’s side doors.

I find that there are a number of inconsistencies in Mr. Osaro’s evidence immediately following the alleged collision:

i. In his August 31, 2010 statement to Pafco, Mr. Osaro said that “[n]o one called police.” During the hearing, he testified that he called 911, told the operator that no one was hurt, argued with the driver of the Acura and unilaterally terminated the call.

ii. In his August 31, 2010 statement, Mr. Osaro stated that he did not know if there were any passengers in the Acura. During the hearing, he testified that the Acura’s front seat passenger had to exit the Acura before the driver could exit through the passenger door (because the Oldsmobile was blocking the driver’s side door).

iii. In his July 9, 2010 statement, Mr. Emarenona stated that the driver of the Acura was alone.

iv. In his July 9, 2010 statement, Mr. Aimufua (the passenger in the Oldsmobile who gave a statement but did not testify) stated that he did not know how many people were in the Acura other than the male driver.

Finally, in his August 31, 2010 statement, Mr. Osaro stated that he did not go to the hospital after the accident. At the hearing, however, he testified that after the accident, he took a taxi back to Mr. Emarenona’s apartment, then to his cousin’s home, and then to the hospital. He testified that he called a friend from Hamilton to pick him up at the hospital and take him home, before he returned to Toronto the next day to report the alleged collision.

I find it troubling that Mr. Osaro would deny going to the hospital immediately following the accident but be able to provide a detailed account of his trip to the hospital by the time of the hearing. I also find it improbable that the three direct witnesses to the accident (Mr. Osaro, Mr. Emarenona and Mr. Aimufua in his statement) would not agree whether there were any passengers in the Acura apart from the driver.

Vehicle damage

Mr. Osaro testified that he bought the Oldsmobile in late 2009 to replace a vehicle damaged in a 2008 accident. He testified that there was no damage to the Oldsmobile when he bought it and that it was in good condition, apart from some minor scratches from two “little accidents” that Mr. Osaro and his ex-wife each had before March 31, 2010.

Mr. Osaro says that, aside from a small dent above the bumper or fender, all of the damage to the Oldsmobile and the Acura was caused in the alleged May 30, 2010 collision. The damage alleged to have occurred in the prior “little” accidents, however, is in the same general area that Mr. Osaro says was damaged when he struck the Acura.

According to Mr. Osaro, the accident resulted in the following damage to the vehicles.

On the Oldsmobile:

i. detached front bumper with scratches, scuffs, dents, and maroon/burgundy paint transfer

ii. missing right headlight

iii. displaced right fog light and missing left fog light

iv. slightly buckled hood and broken plastic bug deflector

v. scratches, dents, and blue paint transfer on the leading right corner of the hood and on the leading edge of the right fender

vi. right front fender deformed rearward at its front and buckled at its rear

vii. some metal components deformed rearward under the front bumper.

On the Acura:

i. left side doors were crushed inward and misaligned. They had scratches, scuffs and blue and white paint transfers

ii. dented, gouged and deformed left side steel running board.

The expert evidence

Mr. Rob Seaton prepared an accident reconstruction report for Pafco dated August 9, 2010 in which he concluded that the profile, elevation and extent of damage on the frontal aspect of the Oldsmobile was not consistent with the profile, elevation and extent of damage on the left side of the Acura and not consistent with the collision sequence of events as reported. He concluded that the evidence that does exist indicates that the two vehicles did not collide with one another as reported.

Mr. Raffi Engeian prepared an accident reconstruction report for Mr. Osaro dated September 13, 2013. As noted above, he did not examine either the Oldsmobile or the Acura. He reconstructed the accident using information provided by Mr. Osaro and photographs taken by Mr. Seaton to conclude that the collision occurred in a manner “similar” to what was reported.

For the reasons that follow, I preferred Mr. Seaton’s evidence. Mr. Seaton examined the vehicles first hand, and his conclusions simply made sense.

Mr. Seaton

I agree with Mr. Seaton’s evidence that based on the level of crush damage to the Acura’s steel running board and metal components, there should be corresponding damage to the front of the Oldsmobile. I also find it reasonable that, in an accident that resulted in significant crush damage to the side of the Acura, the parts of the Oldsmobile that protruded the most should have corresponding damage. They do not.

In examining the Acura, Mr. Seaton noted significant intrusion damage to the driver’s side rear passenger door and bending of the strong metal running board which would require a collision at significant speed. This, he testified, is inconsistent with the lack of air bag deployment (in either vehicle). There were also no horizontal lines in the damage to the Acura which he testified he would have expected had it been in motion when struck, as alleged.

There is no dispute that the Oldsmobile’s airbags did not deploy. According to Mr. Seaton, that meant that the Oldsmobile would have been travelling at less than 23 km/hour. The fact that the black foam behind the front bumper cover was intact and without any damage whatsoever also suggested a very low speed impact for that vehicle.

According to Mr. Seaton, the Oldsmobile’s bumper cover is made of material which has an elastic component designed to withstand impacts of less than 8 km/hour without showing damage beyond minor abrasions. In this circumstance, since the bumper cover showed only isolated superficial abrasion damage (a conclusion with which Mr. Engeian agreed), the Oldsmobile would have been travelling at less than 8 km/hour – which was not the case according to Mr. Osaro or any of his witnesses, all of whom say he was going with the flow of traffic or 40-50 km/hour.

I have also preferred Mr. Seaton’s evidence regarding the profile and elevation of the damage. ⁴

Mr. Seaton testified that when he first saw the Oldsmobile, the bumper cover was not on the vehicle and the reinforcement bar, held on horizontal mounts, was in place with the foam covering on top of that reinforcement bar.⁵ The black foam was intact and undamaged.

Behind and below the reinforcement bar of the bumper on the Oldsmobile is an air conditioning condenser made of soft materials formed into coils which was significantly corroded. Mr. Seaton concluded that had the two vehicles come together to cause the damage noted on the Acura, there would have been crush damage to the condenser, as well as longitudinal damage. There was none.

Mr. Seaton also opined that there would have been some corrosion particulate transfer from the condenser onto the Acura. There was none.

According to Mr. Seaton, given the amount of indentation to the Acura’s driver’s side rear passenger door, the condenser must have overridden the Acura’s running board. There was no evidence, however, of any damage from the Acura’s running board to the soft condenser coils, and there was no evidence of particulate matter from the Oldsmobile’s condenser on the Acura’s running board.

Mr. Seaton did find evidence of an impact to the Oldsmobile’s passenger side front corner consistent with it impacting a blue object. He concluded, however, that it was not consistent with a perpendicular motion of another vehicle, such as the Acura (which, incidentally, was not blue). He opined that it would have occurred when the Oldsmobile was either stopped and struck by something blue, or driven into a stopped or stationary blue object.

The plastic black bug deflector screen was missing on the right front passenger side of the Oldsmobile but there was no corresponding crush damage from it to the front grill or bumper cover, both of which protrude farther forward than the bug deflector.

Both experts noted that the fog light, notably lighter and more easily damaged than the metal of the Acura’s running board, although hanging down, was intact and not damaged. According to Mr. Seaton, had the vehicles collided as Mr. Osaro alleges, the fog light should have been crushed or not present at all. Further, since the fog light sits in front of the air conditioner condenser, that condenser ought to have been damaged from the fog light being pushed back against it. It was not.

The Oldsmobile’s front grill (above the bumper) was intact. Since the bumper cover protrudes farther from the vehicle and would be the first point of contact with another vehicle, there ought to have been some crush damage on the bumper cover. As noted above, there was none.

There was also a significant absence of damage on the Oldsmobile that, according to Mr. Seaton, was inconsistent with a collision between it and the Acura:

The door pillar and door on the Acura should have left a demarcation and vertical line on the Oldsmobile’s front bumper cover
There should have been horizontal abrasions from the Acura on the bumper cover which would have travelled across the bumper cover as the Acura travelled across the Oldsmobile’s path
A red transfer mark on the lower part of the Oldsmobile’s right front bumper cover was not consistent with the colour of the Acura
Mr. Seaton noted a dark coloured paint transfer on the Oldsmobile’s front bumper cover that was not consistent with the profile nor elevation of damage to the Acura.

Finally, According to Mr. Seaton’s evidence, the Acura had damage to it consistent with two prior impacts, one when at a complete stop and one consistent with it being in some motion and that vertical and horizontal abrasions on its side made up 48 inches of damage that did not correspond to the damage on the front bumper cover of the Oldsmobile.

Mr. Raffi Engeian

I find that Mr. Engeneian did not provide a persuasive explanation for why the parts of the Oldsmobile that struck the Acura first had only minor or superficial damage compared to the relatively significant crush damage to the Acura’s hard, reinforced steel metal running board.

Mr. Engeian also testified that:

i. there “appears” to be white paint transfer on the Acura’s left side door that matched the colour of the Oldsmobile;

ii. blue paint transfer on the Acura’s left front door matched the colour of the Oldsmobile’s front license plate and appeared consistent with the letter “B”, the first letter of Mr. Osaro’s license plate;

iii. there were “gouges and deformation” on the Acura’s running board and that a second metal component some 25 centimetres to the left “appeared to correspond” to a gouge in the Acura’s running board.

I find this evidence unpersuasive:

i. there is only one white paint transfer on the entire Acura;

ii. Mr. Engeian testified that he saw the “B” clearly when he digitally enhanced the photograph, but he did not include that digitally enhanced photograph in his report or make it available at the hearing;

iii. Mr. Engeian identified only a single indent or gouge on the Oldsmobile’s plastic front bumper cover that he said is consistent with a “narrow vertical metal component with a similar shape” behind the bumper cover which “appears” to have caused the indent on the bumper cover. I find that the “narrow vertical component” with the “similar shape” to the dent in the running board bears no resemblance whatsoever to the “slit” on the bumper cover through which the narrow vertical component must have passed twice, once on impact while the Acura was allegedly still in motion, and again when the bumper cover fell off.

According to Mr. Engeian, an unidentified “metal component” some 23 to 25 centimetres to the left caused a gouge in the Acura’s running board without causing any corresponding damage whatsoever to the plastic bumper cover of the Oldsmobile. I am not persuaded on the evidence before me that a metal component that sits behind the plastic bumper cover and foam covering could “gouge” the Acura’s steel running board but cause no corresponding damage to the Oldsmobile’s bumper or foam.

That metal component also shows significant corrosion and rust particulate. No rust transfer was visible in the photographs, and Mr. Seaton, who saw the vehicles firsthand, did not see any.

For the reasons set out above, I find that the evidence of physical damage is not consistent with a collision between Mr. Osaro’s Oldsmobile and the Acura as reported. I therefore find that Mr. Osaro was not involved in an accident within the meaning of the Schedule. Accordingly, the application for arbitration is dismissed.

EXPENSES:

The parties made no submissions with respect to expenses. I recommend that the parties resolve the issue of expenses between themselves. In the event that they are unable to do so, they may bring the matter before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

February 26, 2015

Jessica Kowalski Arbitrator

Date

Financial Services Commission of Ontario