Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 123

FSCO A13-002910 and A13-002912

BETWEEN:

ROSEMARY USENGBUWA and EMMANUEL USENGBUWA

Applicants

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Lynda Tanaka

Heard: In person at Hamilton on November 24 and 25, 2015 and by written submissions completed on February 1, 2016

Appearances:

Mrs. Rosemary Usengbuwa and Mr. Emmanuel Usengbuwa participated

Ms. Samia M. Alam and Mr. Nicholas Greer, counsel, participated for Mrs. Rosemary Usengbuwa and Mr. Emmanuel Usengbuwa

Mr. Kevin Griffiths, counsel, participated for Personal Insurance Company of Canada

Issues:

The Applicants, Mrs. Rosemary Usengbuwa ("Applicant RU") and Mr. Emmanuel Usengbuwa ("Applicant EU"), alleged that they were injured in a motor vehicle accident on June 3, 2010 and sought accident benefits from Personal Insurance Company of Canada ("Personal"), payable under the old SABS.¹ The parties were unable to resolve their disputes through mediation, and Applicant RU and Applicant EU (jointly "Applicants"), through their representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Preliminary Issue Hearing are:

1. Was Applicant RU involved in a motor vehicle accident that would give rise to accident benefit claims within the meaning of the old SABS?

2. Was Applicant EU involved in a motor vehicle accident that would give rise to accident benefit claims within the meaning of the old SABS?

3. Is either party entitled to its expenses of the Preliminary Issue Hearing?

Result:

1. Applicant RU was not involved in a motor vehicle accident that would give rise to accident benefit claims within the meaning of the old SABS.

2. Applicant EU was not involved in a motor vehicle accident that would give rise to accident benefit claims within the meaning of the old SABS.

3. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

PRELIMINARY MATTERS

At the outset of the Preliminary Issue Hearing, a number of issues were raised with respect to the conduct of the Hearing itself. The parties agreed that there was no dispute that the expert witnesses to be called were qualified to provide opinion evidence in this matter. The parties also agreed that certain documents were being admitted for "other than the truth of their contents". For Personal, those documents were Tabs 1, 2 and 11 of the Arbitration Brief of the Insurer² and for Applicant RU and Applicant EU, the Tabs were in the Preliminary Issue Hearing Document Brief of the Applicants³ at Tabs 24, 25, 29, 30, 33 and 34.⁴ I note that Personal's Tab 1 is the same document as the Applicants' Tab 33 and Personal's Tab 2 is the same as the Applicants' Tab 34, being statements under oath by the Applicants, dated July 20, 2011.

Personal brought a motion orally that Applicant RU be excluded from the Hearing room when Applicant EU was testifying. Since both Applicants are parties and are spouses, the request was unusual. I granted the motion because the preliminary issue determination depends on an assessment of credibility and if the discrepancies between the two versions of the events were not serious, the testimony of Applicant RU might be more credible if she did not hear what her husband said. Also, I agreed that I would not use the evidence of one spouse against the other. While Personal's closing submissions focussed on the discrepancies, I have based my decision not on those discrepancies between the evidence of the two Applicants but on the evidence of the individual Applicants as individuals, the documents and the evidence of the other witnesses.

EVIDENCE AND ANALYSIS:

Applicant RU and Applicant EU are husband and wife who made claims for benefits under their automobile insurance policy under the old SABS. They allege that an accident occurred on Highway 27 in the southbound lanes north of Rutherford Road at the access to a gas station on the west side of the highway. There were two other people in the vehicle, in the back seat of their gold Acura MDX ("Acura"). Applicant EU testified that he was travelling over 70 km/h when a white Ford Freestar van ("Freestar") pulled out of the gas station into the curb southbound lane in front of his Acura. He tried to brake but there was only one vehicle length between the two cars when the Freestar pulled out into his lane. His vehicle hit the Freestar at the driver's side door and forward of that. The two vehicles came to rest with the Freestar pointing south-east and his own car pointing south-west. There were four people in his vehicle: himself, Applicant RU, a friend and the friend's girlfriend. The Applicants made claims under the old SABS including medical benefits as well as housekeeping and caregiver benefits which were denied.

Applicant EU testified that he did not call the police or an ambulance at the time of the accident. The occupants of both vehicles were not hurt such as to require the ambulance, and the driver of the Freestar did not want him to call the police because he (the other driver) had a bad record and he did not want the police on the scene. The other driver was okay with exchanging driver's licence and insurance information. Applicant EU speculated that the other driver's licence might have been suspended.

The two rear seat passengers of Applicant EU's car left the scene about 15 minutes after the accident, apparently crossing the four lane highway to the east (northbound) lanes and Applicant EU had no idea how they left the scene.

In January 2011, Personal received information from State Farm Mutual Automobile Insurance Company ("State Farm") that it was investigating a suspected staged accident.⁵ It had received claims by the driver of the Freestar who had reported the accident under a State Farm policy.⁶ State Farm had examined the driver and the passenger under oath and, at the conclusion of that process, the two individuals had confessed that the accident report was false and the accident was fake. The Applicants' files were reviewed by a new adjuster at Personal, and Personal terminated the Applicants' benefits and placed the files under investigation in March 2011. In July 2011, both Applicants were examined under oath by counsel for Personal. In February 2012, coverage was denied on the basis that Applicant EU had willfully misrepresented material facts.⁷

Seven witnesses testified:

1. Applicant EU;

2. Applicant RU;

3. Darren Rodrigues, the adjuster at Personal;

4. Gulam Mahaiddin Akbari ("GMA") who, as the driver of the Freestar, had reported an accident with Applicant EU's Acura;

5. Waisuddin Akbari (brother of GMA) ("WA") who was reportedly the passenger of the Freestar at the time of the accident;

6. Ed McCarron, an expert in accident reconstruction; and

7. Robert Seaton, an expert in accident reconstruction.

The Applicants testified first, setting out what they said occurred on June 3, 2010, and, in the case of Applicant EU, his evidence as to the reporting of the accident.

Darren Rodrigues was called to testify by counsel for the Applicants. He is an experienced adjuster with a designation of Chartered Insurance Professional completed in 2009/10. That designation is based on education and training including training in identification of material misrepresentation and fraud. When he took over the files, he identified the following issues:

A. The third party Insurer, State Farm, had been told by its Insured that the accident had been staged;

B. There were elements to the accident itself that raised concerns, including:

i. the fact that the Freestar's driver's airbag had deployed on a side impact collision;

ii. the number of occupants in the two vehicles;

iii. the time of loss (late at night);

iv. the lack of independent witnesses;

v. the lack of police or ambulance reports;

vi. the type of injuries as compared to the relatively minimal damage to the vehicles;

vii. the fact that there were multiple injuries;

viii. the location of the vehicle after the accident with a towing company which had connections to a physiotherapy and rehabilitation clinic; and

C. Personal had received from the Applicants claims for housekeeping benefits by two different service providers to clean the same house at least three times per week.

Mr. Rodrigues was also responsible for adjusting the files for the two rear seat passengers in the Applicants' Acura. Examinations Under Oath were conducted of the service providers for the claims submitted by the Applicants and of one of the passengers. In addition, he took statements from the driver and passenger of the Freestar. He testified that the two rear seat passengers of the Applicants' Acura subsequently withdrew their claims for benefits.

Each of the parties called an expert in accident reconstruction. Because the accident occurred in 2010 and the investigation occurred starting in 2011, the vehicles had been destroyed and could not be examined by either expert.

Both experts, Mr. McCarron and Mr. Seaton, agreed on the basic elements of the damage to the vehicles. The Applicants' Acura had damage in the centre front and Mr. McCarron said there was some deformation on the right side. The Freestar had damage to the forward left side (driver's side) of the vehicle with damage on the wheel. Both experts were hampered in their investigation because the vehicles had been destroyed, the airbag modules were no longer available to be downloaded for their information on the impact, and there was neither a police report nor notes of police officers. Also any estimate of change of speed had to be based on the photographs and could not be as precise as if there were full information available. In addition, there was a lack of continuity in the vehicles themselves, even in the photographs, as we cannot know what damage was pre-existing, what occurred as a result of the impact, and what may have occurred after the impact. Neither driver nor any passengers took photographs at the scene of the accident. The photographs that were available had pixel resolution that was not good.

Most of Mr. McCarron's evidence focused on his two reports, one dated May 14, 2015 ("May 2015 Report") prepared for counsel⁸ and an Addendum Report ("Addendum Report") in response to a report of Mr. Seaton, dated October 25, 2015 ("Seaton 2015 Report").⁹ Mr. McCarron had been given the transcripts of the Examinations Under Oath of the Applicants describing the accident and photographs of the vehicles. In the case of the Acura, he had been given the photographs which had been taken by the estimator determining the cost to repair, and he had that estimate of repair costs.¹⁰ He had no estimate of repair costs for the Freestar but he had the photographs taken by State Farm.¹¹ Mr. McCarron also looked at exemplar vehicles, both of the Acura and the Freestar, to compare size and height.

He concluded in his May 2015 Report that "the damage to the two vehicles would generally be consistent with them sustaining a single mutual impact, generally consistent with the vehicle contact suggested in the accident circumstances..."¹² of the Applicants. He concluded that the damage was consistent with them sustaining an approximately perpendicular impact with the front licence plate area of the Acura contacting the Freestar's left front wheel area. He concluded that based on the damage to the Acura, the front of that vehicle experienced an impact with a speed change magnitude slightly above the limit of the front bumper system, with a speed change of about 14 to 18 km/h. Based on that speed change magnitude, the Acura was going 35 to 40 km/h at the time of impact. He testified and concluded in his report that there must have been some braking by the Acura driver, based on his analysis, for about 1 to 1 ½ seconds before the impact. He testified that if a vehicle travelling at 75 km/h had hit the Freestar, it would have been a startling sensation to those in the vehicle and a person who was asleep in the vehicle would tend to wake up because of the noticeable motion rearward caused by the impact.

He was asked to comment on the evidence of Applicant EU, in which he testified that he was going 65 to 75 km/h as he drove down the road and that the Freestar was one car length away when it pulled into the lane, leaving him no time to brake. Mr. McCarron testified that the inconsistency between what the driver says about the accident events and what the evidence in the vehicles' damage says is not unusual. He said that the evidence of Applicant EU was not consistent with the damage to the vehicles. His calculations and conclusions were that there was a full one to one and a half seconds of full emergency braking for 23 metres (three to five car lengths) before impact. When he was asked how confident he was that the two vehicles impacted each other, he said that from the layout of the damage, it seemed consistent with such impact.

He concluded in his report that the Freestar airbag deployment would not normally be expected because the impact was mostly to the side of the vehicle.

Mr. Robert Seaton also testified as an expert in accident reconstruction. Mr. Seaton produced two reports, one in February 2012, while he was an independent consultant and the other in October 2015, when he was on the cusp of starting as an employee with Personal. The Applicants' counsel brought a motion that Mr. Seaton's report which he prepared in October 2015 not be admissible because of bias. Even though they had agreed that Mr. Seaton was qualified as an expert witness, they changed their position during the Hearing because Mr. Seaton had started work as an employee of Personal on November 2, 2015. This fact was not revealed until the Hearing was underway. It was agreed that the simple fact of employment was not sufficient to disqualify him as an expert. I ruled that I would receive the evidence but the Applicants were free to argue in the written submissions at the end of the Hearing that his opinion should not be relied on because he was not independent.

In their written closing submissions, the Applicants took the position that both the Seaton 2012 Report and the Seaton 2015 Report should be excluded and only his oral testimony should be admitted. I have determined that the Seaton 2012 Report, prepared at the time of the initial investigation, has the essential hallmarks of independence and the application of expertise in arriving at the conclusions expressed in it. It is not in my view tainted by the later employment situation and should be admitted. I also have rejected the argument that the Seaton 2015 Report should be excluded but, for the reasons below, I give it little weight.

The Applicants' counsel also sought to undermine Mr. Seaton's independence because Mr. Seaton spoke at the Annual Toronto Fraud Forum in 2010 as a presenter at 10:20 a.m. and the person at Personal who retained him to do his report spoke to the gathering just before him at the conference. I find no basis in such professional relationships to attack the independence of an expert and especially when the conference occurred two years prior to the retainer.

On review of the Seaton 2012 Report, I cannot conclude that he has taken on the role of advocate despite some elements that give me concern. He was given summaries of testimony under oath prepared by counsel for Personal rather than the transcripts themselves. The original evidence could have been provided if the intent was that he rely on the statements in the testimony. If the intent was that he rely on the statements of the advocate in the summaries, it was inappropriate. The task of determining the independence of Mr. Seaton and his conclusions is also complicated by some elements of the report that are more consistent with a brief for counsel than a report by an expert. Mr. Seaton's expertise is in drawing conclusions from the physical evidence of the vehicles and the statements of Applicant EU, but he includes in his Conclusions at page 49 and 50, as items 2, 3 and 5, references to the report by counsel for State Farm and on the statements of third parties.

For my purposes in determining the preliminary issue, the Seaton 2012 Report sets out the observations of Mr. Seaton as an expert in this field, well-illustrated with photographs and clearly expressed comments, and his conclusions from the physical evidence. He has included a summary of the information available at the time from various sources and his conclusions on the physical evidence and the contrast with the statements of the driver. The fact that Mr. Seaton includes items 2, 3 and 5 (much of which is third hand information) as part of his "Conclusions" is in my view inappropriate and I have disregarded the statements there.

I have given little weight to the Seaton 2015 Report which is essentially a review of Mr. McCarron's report. Mr. Seaton remains a probationary employee for one year after his hiring on November 2, 2015 and, while I am prepared to find his 2012 work has the requisite hallmarks of independence, I am not prepared to do so for the 2015 work with the added issue of employment in this case.

As requested by counsel for the Applicants, my main focus has been on Mr. Seaton's oral evidence which, in chief, solely addressed the photographs and what could be concluded from a review of them. He was asked in evidence to comment on the differences between the two sets of conclusions, his and Mr. McCarron's.

One of the differences between the experts was the weight to be given to the blue paint seen in the photograph on the Freestar wheel area that Mr. McCarron attributed to a paint transfer from the licence plate of the Acura. Mr. Seaton disagreed with this conclusion because, in a collision at the reported speed, he thought there would be more impact that he could see and more paint transfer. Mr. McCarron justified the lack of paint transfer on the fact that the Acura had a clear coat on top of its paint which would tend to prevent gold paint transfer. What is not shown in the photographs is the front of the licence plate which would have allowed us to see any signs of scraping.

Mr. Seaton was certain that the Freestar was hit by a vehicle at least once, but the absence of damage to the Acura's front rebars and other front bumper structure was not consistent, in his view, with the damage to the side of the Freestar. Mr. McCarron was satisfied that the damage was consistent with the impact based on the assumptions he used and he relied on the very high rating that the Acura's bumper system has earned.

Mr. Seaton concluded from the photographs that the damage to the Freestar is consistent with a perpendicular impact. He concluded that, if there had been a collision as described by the parties, he would have expected the licence plate holder on the Acura to be shattered, crushed or displaced, not just bent back as shown in the photographs, and the left front tire of the Freestar to be deflated. He found there was no evidence of damage to the flange or bead of the tire – even the wheel cover which is notoriously prone to shattering under very little stress was intact. He testified that the licence plate cover could have been bent backwards as the photographs showed by the vehicle hitting a curb at an earlier time. He said that, if there were an accident at the reported speed, there would be more damage. In particular, the front head lights would have shown some damage and they appeared to be intact in all aspects. If the vehicles did collide, it was at a speed under 15 km/h.

One of the main elements of the attack on Mr. Seaton's opinion is that he expressed his opinion in his 2012 report as follows:¹³

The profile elevation and extent of damage on the frontal aspect of the Acura MDX are not consistent with the profile, elevation and extent of damage on the left side of the Ford Freestar and the damage to both vehicles is not consistent with the collision sequence of events as reported. The physical evidence that does exist indicates that these vehicles did not collide with one another.

The Applicants' counsel says that Mr. Seaton has changed his opinion. His opinion as expressed in the evidence is different – he now says that if they did collide, it was at a speed under 15 km/h.

In item 4 on page 50 of the Seaton 2012 Report, Mr. Seaton discusses the evidence of Applicant EU as it had been conveyed to him in a summary. The most important elements are the speed of travel at 65 to 75 km/h and the one to one and a half car lengths distance between the Acura and the Freestar pulling in front of the Acura.¹⁴ Mr. Seaton concluded that there would have been insufficient time for the driver to apply the brakes prior to the collision and,

[a] very significant collision between the frontal aspect of the Acura and the left side of the Ford would have resulted from this...sequence of events, resulting in extensive damage to both vehicles. Moreover, a completely different profile, elevation and extent of damage to both vehicles would have resulted than was the case. The existing profile, elevation and extent of damage on both vehicles are not consistent with the collision sequence of events as reported.¹⁵

Neither expert can say that there is consistency between the evidence of Applicant EU and the physical evidence shown in the photographs of the vehicles. Mr. McCarron's evidence gives the strongest support for the Applicants' case, but there is too large a gap between the version of events given by the Applicants and the conclusions of the expert to find the necessary consistency and probability. While the Applicants argue that Mr. Seaton's change of conclusion means his evidence should be disregarded, the evidence as a whole supports my giving more weight to his evidence than to Mr. McCarron's evidence.

In his Addendum Report in November 2015, Mr. McCarron dismisses the observations of Mr. Seaton that the source of the blue paint transfer was unknown, that there was minimal damage to the outer right aspect of the front bumper reinforcement bar of the Acura and there was no geometric profile or impression damage from a vehicle component or licence plate to state with certainty that the vehicles collided.¹⁶ Mr. McCarron summarizes his estimated contact orientation and identifies what he regards as the deformations and horizontal dent marks that correspond with the Acura and Freestar structure heights. He reiterates that his 35 to 40 km/h impact speed is based on the analysis of the damage and his likely impact configuration. He relies on the fact that there is no damage that is inconsistent with the impact scenario.

I am persuaded by Mr. Seaton's conclusion, despite the weaknesses in his reports. Applicant EU described the events leading up to the collision. He was not slowing down to turn into the gas station. He describes the obstacle of the Freestar pulling out into his lane as a total surprise, giving him little or no chance to apply the brakes prior to the collision because there was only one car length between them. Despite what must have been a serious collision on this recital, the headlights of the Acura remained fully intact. However strong the front bumper system of the Acura, the speeds of contact identified in the safety analysis provided by Mr. McCarron are well below the speed identified by Applicant EU and I do not accept that the Acura bumper structure would have been so little marked by the collision.

There is no good explanation given for the front airbag of the Freestar deploying in the collision as described by Mr. McCarron. Mr. McCarron described the deployment as possible, but it remains a vivid reminder that Mr. McCarron's assumptions were not proven in the evidence of the Applicants. At its strongest, Mr. McCarron has proven that the damage is consistent with the vehicles coming into contact but the impact speed he determines from the damage is not consistent with the description of the accident.

Personal called two third party witnesses, one of whom had filed the first accident report on June 5, 2010 as the driver of the Freestar, two days after the alleged accident. Neither he nor the other witness, his younger brother, had ever been involved in an accident before. Both had submitted claims for medical benefits on the basis of the accident report filed and following Examinations Under Oath, they had resiled from their sworn testimony and told their Insurer, State Farm, that it had been a fake accident.

The brothers, GMA and WA, testified before me as to a train of events involving unknown persons approaching GMA at a social event, a barbecue, and proposing a scheme to him to make some money. He was to pick up a vehicle registered in his name (the Freestar), drive it for a couple of days and then report an accident, without having seen the vehicle actually damaged and without driving it on the day of the accident. Both brothers testified that WA, the younger brother, was asked by GMA to agree to be shown as the passenger in the Freestar, and that WA initially resisted being involved at all. WA tried to convince GMA not to agree to his name being used on the Freestar ownership or to report a fake accident. Both also testified that GMA told WA that "you will no longer be my brother", a threat that overcame the younger brother's resistance to the scheme.

GMA made a Collision Report identifying himself as the driver of the Freestar and he was paid $1,500.00 out of the proceeds of the sale of the Freestar. GMA indicated some fear at not doing what he had been told by the unknown persons.

Both brothers were adamant that, having perjured themselves once, they would not do it again. Both clearly had some difficulties understanding English in their testimony, but they had declined an Afghani interpreter.

As pointed out by counsel for Personal, it is difficult to understand what motivation there would be for confessing to a criminal act if it were not true. But, as pointed out by Applicants' counsel, the protestations that they would not lie again have to be carefully assessed because at least one lied again in denying that he received money to testify even though he had been paid his attendance money. If he clearly understood that his attendance money was paid, whatever he said in the witness stand, his answer was truthful if understood to mean that he was not paid to testify in a particular way. That may have been his meaning in his answer. But on a literal meaning of the question, "Did you receive money to testify," he was not truthful when he said that he had not - every summonsed witness is paid and receives conduct money to testify. My perception of his evidence was that he just wanted this whole experience to be over, that he was uncomfortable with every part of his involvement, and that the faking of the accident, as they characterized it, had put severe pressures on the relationship between the two brothers. My impression from their overall testimony was that they did not want to be seen as colouring their testimony in return for money and that the evidence they gave in the Hearing was truthful.

It is correct, however, to observe that these two witnesses could not testify that a collision never occurred between these two vehicles; at most, one can conclude that GMA reported a sequence of events in which he had not been involved at all and certainly not in the role he set out in the Collision Report. He could not know whether or not the events had occurred at all or as he had reported it. If one describes the "accident" for the purposes of the old SABS as the one particularly set out in the Collision Report, with GMA as the driver of a Freestar, at a particular location at a particular time and with Applicant EU as the driver of an Acura at the same location and at the same time, then the testimony of the two brothers is unequivocal that that particular accident did not occur.

The two Collision Reports, the one filed by GMA and the one filed by Applicant EU, do not differ substantially, except that the report of GMA included a reference to a right turn signal showing on the Acura indicating it intended to turn into the gas station, and there is no such reference in the report by Applicant EU. The dates, times and location are more or less the same.

The onus is on the Applicants to prove that they were involved in an accident on the balance of probabilities. The defence raised by Personal is that the accident did not occur and that the Applicants have made material misrepresentations in their claims for benefits.

In determining the credibility of the witnesses, I considered all the evidence concerning the actions of the Applicants and the context both before and after the events to which they have testified. Both parties have referred me to the British Columbia Court of Appeal decision in Farnya v. Chorny:¹⁷

The evidence of Applicant RU is of little assistance in establishing the fact of the accident as she was asleep during the accident events as described in the Collision Reports, and the collision woke her up. She testified that the front of the Acura made contact with the side of the Freestar on the driver's side. She has no idea who called for the tow truck or the cab that took them home. She did not speak to the driver of the other car and gave only the vaguest of descriptions of the driver or passenger.

Personal's counsel cross-examined Applicant RU at length, trying to determine the answer to the basic question of why she and her husband were on Highway 27 at that time and on that day. None of the information she provided was persuasive. In every way she was a passenger, going where he husband wanted to go, apparently without question. She admitted that she could not give a straight answer to a simple question when confronted with inconsistencies in both her evidence at the Hearing and at the Examination Under Oath. She denied receiving social assistance benefits but her income tax return information clearly shows that she did and for several years.¹⁸ She was offered the opportunity in cross-examination to explain the claims for housekeeping benefits from two different service providers for the same house as identified by Mr. Rodrigues and she provided no credible response. In the end, she was not able to corroborate much of her husband's evidence and I give little weight to any of her testimony concerning the alleged accident. I find that Personal has established that the claims for accident benefits by Applicant RU for attendant care, housekeeping and caregiver benefits were based on a false statement as to her residence address. The parties testified that at the time of the accident they were separated with the wife living on Dunsmuir and the husband on Emerald. But the wife's claims for benefits are all for the Emerald address. The issue of her receiving any benefits from an accident at all depends on her husband's testimony.

I do not accept the evidence of Applicant EU that an accident occurred for several reasons.

First, he testified that, when the vehicles came to rest after colliding, his was pointing south-west which would have had his left front bumper closest to the Freestar, which he said was pointed south-east. But Mr. McCarron testified that the collision would have resulted in both vehicles pointing south-east, with the right front bumper of the Acura showing most of the damage. Also, the damage analysis by Mr. McCarron and his conclusions as to the impact speed and distance the Acura travelled with hard braking immediately before the collision are not supported by the Applicants' evidence. While Mr. McCarron points out that discrepancies in perception by a driver are not unusual, such discrepancies cannot be ignored in this case where the case of the Applicants is so riddled with inconsistencies.

Also, Applicant EU was, at the time of the alleged accident, a professional truck driver and now is a dispatcher. He testified that he first went to a police station in Hamilton to report the accident and was told he had to go to Vaughan to the Collision Reporting Centre. He testified he went there and reported the accident within three days of it occurring. The problem with this testimony is that the only Collision Report he has produced is dated September 1, 2010, some 89 days after the accident.¹⁹ It is not probable that a professional truck driver, driving a commercial operator's truck, would not know the process for reporting an accident or that he would come away from the Collision Reporting Centre without a copy of the Collision Report in hand. Also, he had some familiarity with the system of reporting damage to his vehicle as his vehicle had previously been vandalized. He certainly knew he had to have a claim number but that comes from the Insurer and is different than the collision reporting number.²⁰

Also, in response to the questions by counsel for Personal to establish why the Applicants were on Highway 27 in that location at that time, Applicant EU testified to a series of events culminating with a trip on a route between Vaughan Mills Shopping Centre and the address on Finch of the home of one of the passengers. He testified that he drove from Hamilton to Toronto's west end to pick up a computer part. He could not give any reason why that part would not be available in Hamilton or why he particularly wanted to buy it in Toronto. He testified that he and his three passengers had window shopped at the shopping centre and he was driving his friend and the friend's girlfriend to the friend's home. He said he was just following the instructions of his friend as to the route to follow between the shopping centre and the man's home. But the road pattern as seen on the map in Exhibit 4, Tab 3²¹ shows that the most direct route between those two points is directly south on Highway 400 and there are a number of options for north/south travel parallel to Highway 400 if an alternative was needed, much closer than Highway 27, the route he says he took.

If, as he says, his friend directed him to the location of the alleged accident, then perhaps the friend was the one who set up the accident, but since the Applicants did not summons the friend to testify, that proposition could not be put to him. This proposition, that the friend knowingly directed the Applicants into a staged accident, is difficult to regard as reasonable as the passenger was taking a terrible risk of injury. He could not know with any certainty that Applicant EU, the driver of the car he was in, would not be speeding or at least proceeding at the speed limit, or the timing of the other car leaving the gas station, or that Applicant EU would agree not to call the police. He could not know with any certainty that a staged accident would not result in his own injuries.

The absence of independent witnesses is particularly telling in this case. No independent witnesses at the gas station were identified at the time of the accident and none has been produced here. The Applicants apparently had no ability to record the accident in photographs. Applicant EU testified that a friend went with him to the Collision Reporting Centre to report the accident but that witness was not called to testify either.

Since 2012, Personal has clearly challenged the Applicants' version of the events prior to the accident and after the accident to establish that there was no rational reason for the Applicants to be at the location identified in the Collision Reports. There was no corroboration of any part of the Applicants' testimony as to how they got to where they said they were, though the passage of time since 2012 should have given them the time to find some.

Applicant EU had trouble testifying as to basic information. Even giving his current home address was a challenge. When asked where he currently lives, he gave his wife's address in Edmonton even though they have been separated for years. If theirs was a recent separation and the wife was still in the matrimonial home, such a slip might well be meaningless and due to nervousness in testifying, but not in this context. As noted above, when they lived in Hamilton, the parties were separated with the wife living on Dunsmuir and the husband on Emerald. But the wife's claims for benefits are all for the Emerald address. She followed him in his move out to Edmonton with their four children where they have shown separate addresses, at least on the income tax returns information.²²

Even the issue of having a cell phone that could have been used to call for the tow truck or call for the cab that drove the Applicants home is not straight forward. Indeed neither Applicant could give me any satisfactory answer as to how the tow trucks showed up. Personal wrote to the Applicants in 2012, asking for their cell phone records.²³ The records have never been produced and no effort seems to have been made to get them. Applicant EU said the letter from Personal was sent to his lawyer and he does not know what happened to it. The letter was in fact addressed to him personally and it is not helpful to their case that the request seems to have fallen on deaf ears. The records could have served as useful corroboration for the timing of the events and the sequence. Absent those records, I have nothing to support their version of events.

Also, I find the description of the two backseat passengers of the Acura leaving the scene after the collision particularly improbable. The collision allegedly occurred at one of the entrances to a gas station. Applicant EU testified that the two passengers crossed the four lane highway at dusk to the northbound or east side of the highway and got transportation from there. In my view, it would be much more reasonable for them to have gone into the gas station. They could wait there in safety for a cab which could be directed to that particular location with certainty, and, even if they had no cell phone to call a cab, someone would help them there. Instead they chose to go to the side of the road away from the gas station where there are no buildings or access points, and the traffic would be heading away from the passengers' home, not towards it.

GMA and WA testified that they had never seen the Applicants before. It was open to the Applicants to testify in reply that GMA and WA were in fact the driver and passenger of the Freestar or that they were not, but the Applicants did not testify in reply. I am entitled to draw the inference that they could not testify to either of those alternatives.

Counsel for Personal relies heavily in argument on this failure to testify in reply. He argues that the Applicants must be taking one of two positions: either the brothers are perjuring themselves at this Hearing or someone impersonated them at the accident. I have dealt with the allegations that the brothers were perjuring themselves in their testimony at the Hearing. With respect to the other option, that unknown persons impersonated GMA as the driver of the Freestar, it is possible since GMA gave his driver's licence to be photocopied by the unknown persons he met at the barbecue and it is possible that the copy could have been used to create false identification. But I am persuaded by the submissions of counsel for Personal that this is an improbable theory since there was a terrible risk of injury as well as the police being called, and of the impersonation easily being found out in that option.

The Reply submissions on behalf of the Applicants address these two options by pointing out that whether I believe the brothers or not, there is no evidence linking the Applicants to a conspiracy. The position is that they are the innocent dupes. This response does not address the issue of the risks if the only people knowingly participating in the faked accident are those in the Freestar. There were just too many variables that would make the success of the scheme uncertain unless Applicant EU was involved in the scheme. For instance, how were those in the Freestar, assuming they were imposters, to know that Applicant EU would agree to not call the police as he says he did? If someone were hurt so badly they needed an ambulance, the scheme again would be in danger. The impersonation would only work reliably if the only people who had to accept it as truth were the Applicants, hence the timing of the accident reported to be at dusk, on a highway with little adjacent development, no police, no ambulance and no independent witnesses.

The response of the Applicants to the allegation that this accident was faked was that the husband would not endanger the wife of his four children and the wife would not endanger herself with four children left at home. If the cars collided, but at a very reduced speed, just enough to damage the front of the Acura and dent the side of the Ford, then the only risk is if the Applicants were in the vehicles when it happened and even that risk is minimized if the impact is reduced from the description given by the Applicants in evidence to align better with the conclusions of Mr. McCarron. The Applicants have good reason to exaggerate the impact, in order to obtain the housekeeping, caregiver and attendant care benefits on the basis that they were so severely injured they could not live a normal life.

I find, based on the totality of the evidence, that the accident reported at the Collision Reporting Centre as set out in Exhibit 2, Tabs 1 and 2, did not occur. It is inherent in my finding that the Applicants have made claims for benefits to which they are not entitled and made material misrepresentations to their Insurer.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

April 25, 2016

Lynda Tanaka Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 123

FSCO A13-002910 and A13-002912

BETWEEN:

ROSEMARY USENGBUWA AND EMMANUEL USENGBUWA

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:

1. Applicant RU was not involved in a motor vehicle accident that would give rise to accident benefit claims within the meaning of the old SABS.

2. Applicant EU was not involved in a motor vehicle accident that would give rise to accident benefit claims within the meaning of the old SABS.

3. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

April 25, 2016

Lynda Tanaka Arbitrator

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "new SABS") came into force. The transition rules in the new SABS provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the "old SABS") shall be paid under the new SABS, but in amounts determined under the old SABS.
2. 2Exhibit 2.
3. 3Exhibits 1A, 1B and 1C. Note that at the end of the Hearing, these exhibits were reduced in size to eliminate Exhibit 1C and to reduce Exhibit 1A to Tabs 1 to 5 inclusive and 17, 18, 24 to 32 inclusive. In addition, I was given a better copy of Tab 37, Exhibit 1B for the record.
4. 4Tabs 24 and 25 are transcripts of Examinations Under Oath of third parties. Tabs 29 and 30 are statements taken from service providers for the Applicants.
5. 5Exhibit 6, Request for Information, State Farm Secure Messaging Centre to Richard Muir, Personal.
6. 6Exhibit 2, Tab 6, Collision Report 10-150939 by Ghulammahaiddin (sic) Akbari of collision with vehicle driven by Applicant EU.
7. 7Exhibit 2, Tab 15, correspondence from Personal to Applicant EU, February 28, 2012.
8. 8Exhibit 1B, Tab 37.
9. 9Exhibit 1B, Tab 38.
10. 10Exhibit 1A, Tab 3, Certas Insurance Property Damage Documents including Appraisal Report and Photographs of Usengbuwa Acura.
11. 11Exhibit 1A, Tab 5, State Farm Insurance Damage Appraisal photographs of Akbari Ford.
12. 12Exhibit 1B, Tab 37, p. 13.
13. 13Exhibit 1, Tab 3, p. 29.
14. 14This information is the same as was provided in the testimony of Applicant EU.
15. 15Exhibit 2, Tab 3, p. 30.
16. 16Exhibit 1B, Tab 38, p. 2.
17. 17[1951] B.C.C.J. No. 152 (C.A.) at para. 11.
18. 18Exhibit 1B, Tab 41, Income Tax Return information for Applicant RU for tax year 2007, 2008, 2011 and 2012.
19. 19Exhibit 1A, Tab 2, Self-Reporting Collision Report.
20. 20The collision reporting number of Exhibit 1A, Tab 2 is 10-150797. The claim number of the insurance letters and forms is P2961468. The latter number is filled in on forms completed before September 2010.
21. 21Exhibit 4, Map Brief.
22. 22Exhibit 1B, Tabs 40 and 41.
23. 23Exhibit 2, Tabs 14 and 19, letters from Personal to the Applicants, dated June 4, 2011.