Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 68

FSCO A13-007600

BETWEEN:

HIWAD BATOOR

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator H. Michael Kelly, Q.C.

Heard: In person at ADR Chambers on June 22, 2015; August 7, 2015 and October 2, 2015 and by written submissions completed on November 30, 2015

Appearances: Mr. Hiwad Batoor participated Mr. Kevin Wolf and Ms. Marla Pecchia participated for Mr. Hiwad Batoor Ms. Shirline Apiou participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Hiwad Batoor, was injured in a motor vehicle accident on July 11, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his 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. Is Mr. Hiwad Batoor excluded by s. 31(1)(a)(i) of the Schedule from claiming income replacement benefits; non-earner benefits or a benefit under sections 21, 22, or 23 of the Schedule?

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

Result:

1. Mr. Hiwad Batoor is not excluded by s. 31(1)(a)(i) of the Schedule from claiming income replacement benefits; non-earner benefits or a benefit under sections 21, 22, or 23 of the Schedule.

2. 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.

EVIDENCE AND ANALYSIS:

BACKGROUND

On July 11, 2011, at approximately 5:30 p.m., the Applicant, Hiwad, while operating a motorcycle, in the parking lot behind his apartment building, lost control of the motorcycle. The motorcycle left the paved parking lot, climbed a grass-covered hill, crashed through a fence and ended up on the adjacent roadway. The Applicant suffered a brain injury that has been accepted as a catastrophic (“CAT”) impairment under the Schedule by State Farm. This Preliminary Issue Hearing ("PIH") proceeded on the agreed basis that the motorcycle was not insured at the time of the accident, as set out in the police reports filed as exhibits. While much of the Hearing concerned who, if anyone, had purchased the vehicle from Mr. Feredon Yousufi on the date of the accident, there was no dispute that Feredon was the registered owner of the motorcycle at the time of the accident.

State Farm, on the date of the accident, insured two cars owned by the Applicant's brother, Mr. Roshan Batoor. The Applicant's claim against State Farm in this Arbitration (not addressed in this PIH) is based upon his assertion that he was, at the material time, financially dependent upon his brother, and accordingly, was covered by his brother's motor vehicle insurance policy with State Farm. That issue of whether he was covered under his brother’s policy (the "priority issue") is currently being addressed in a separate private Arbitration to determine priority as between State Farm and the Motor Vehicle Accident Claims Fund, pursuant to the Insurance Act. The priority issue will determine which Insurer must address the substantive claims in this Arbitration. The within PIH deals with the potential exclusion of entitlement to certain statutory accident benefits based upon s. 31(1)(a)(i) of the Schedule.

THE POSITIONS OF THE PARTIES

State Farm asserts that the Applicant purchased the motorcycle earlier that same day from Feredon, and therefore knew, or ought reasonably to have known, that the motorcycle was not insured when he operated it, as the Applicant had insufficient time to arrange insurance. Alternatively, State Farm contends that, even had the Applicant not purchased the motorcycle that day, the circumstances preceding his operation of the motorcycle had informed him, or ought reasonably to have informed him, that the motorcycle was not insured when he operated it. State Farm therefore takes the position that, in either case, pursuant to s. 31(1)(a)(i) of the Schedule, the Applicant is excluded from entitlement to certain benefits.

In support of State Farm's contention that Hiwad was the purchaser, State Farm relies upon the testimony of Mr. Khamchand Somwaru,² an independent eye-witness to the events in the parking lot that preceded Hiwad's operation of the motorcycle and continued through to the accident. As well, State Farm relies upon the contents of the police report³ and the testimony of Ms. Natalie Farro, an accident benefits adjuster at State Farm, who testified as to the contents of State Farm's log notes showing the investigation flow, and particularly the content of a telephone communication between State Farm's Special Investigations Unit ("SIU”) and Police Constable ("P.C.") Paul Thompson, on November 11, 2011. Neither P.C. Thompson, nor Feredon, was called as a witness by either party.

Hiwad defended on the basis that he had not purchased the motorcycle, and that the whole of the evidence would confirm that he did not know, nor have reason to know, that the motorcycle was uninsured. Hiwad testified that he, as a result of his head injury, had no recall as to the events

that took place on the date of the accident. He had been told by his cousin, Mr. Pameer Aziz, that Pameer had met with Feredon, in Hiwad's presence, earlier that day to arrange for the purchase, by Pameer, of the motorcycle. Pameer also testified to that effect. State Farm objected to the admission of Pameer's testimony on the basis that although Pameer was identified as a witness in compliance with the requisite timeframe prior to the PIH, the Applicant had resisted the attempts by State Farm to acquire from the Applicant a "will-say statement" of Pameer, before the Hearing, and that consequently State Farm was, unfairly, taken by complete surprise with respect to his testimony. In that regard, State Farm relied upon s. 33(1) of the Schedule.

State Farm takes the position that, even if the testimony of Pameer is accepted, the facts support its assertion that Hiwad knew or ought reasonably to have known that the motorcycle was uninsured when he operated it. Hiwad denies that the facts support that conclusion.

THE LAW: The Schedule’s Exclusion Provision

Section 31(1)(a)(i) of the Schedule states:

Circumstances in which certain benefits are not payable:

31. (1) The insurer is not required to pay an income replacement benefit, a non-earner benefit, or a benefit under section 21, 22, or 23,

(a) in respect of a person who was the driver of an automobile at the time of the accident,

(i) if this driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy.

THE EVIDENCE

Testimony of Ms. Natalie Farro

Ms. Natalie Farro was present during most of the PIH on behalf of State Farm, and also testified. She has been an accident benefits claims adjuster at State Farm since approximately mid-2000. She reviewed certain State Farm log notes, which are contained in Exhibits 1(A) and 1(B). She testified that the priority issue was State Farm's initial focus, and that State Farm's log notes confirm State Farm's diligent investigative efforts to address the priority issue during the fall of 2011. As well, State Farm issued an Explanation of Benefits (OCF-9 Form), dated October 12, 2011, advising the Applicant of a potential exclusion of benefits pursuant to s. 31(1)(a)(i) of the Schedule.⁴ As State Farm's investigation continued during the fall of 2011, the possibility of the s. 31(1) exclusion was given renewed attention. The SIU at State Farm was involved. Ms. Leanne Stultz of the SIU made notes of a November 11, 2011 telephone contact she had with P.C. Paul Thompson, who had investigated the accident.⁵ The text of the log note is precisely as follows:

ACTIVITY LOG NUMBER 99

SIU - received callback this morning from officer paul thompson, he suggested that we meet to discuss the file further and to provide more info if needed or that I could meet with the detective in charge of the case, he is going to call me - he did advise that the m/c in fact belongs (sic) to Hiwad, the ownership is not in his name but it was a cash deal and it was his, he advised that he was not properly licensed (no M license) and had no insurance, no plate on bike, charges have been laid, he said that he was on private property and came off of it and hit an ebike, the ebike rider was in no way at fault, i/s was not wearing a helmet, they don't know what to do with the bike as ownership was not in i/s name and it has changed owners a couple of times by cash deal without changing the ownership

• it is clear that there is no coverage avail under the motorcycle.

I set out above the full text of the log note, as it was the foundation of State Farm's position on the issue before me, and State Farm intended before the Hearing got underway to call P.C. Thompson to provide firsthand evidence in that regard. However, neither Ms. Stultz nor P.C. Thompson testified, and the log notes of that contact made by Ms. Stultz were essentially hearsay, and did not disclose the source(s) of the information allegedly obtained by police. Importantly the full police report (Exhibit 4) did not contain any notes or references recording the information or sources of information, or confirming the conclusions of P.C. Thompson contained in State Farm Log Note 99.

Ms. Farro continued. As a result of that contact between Ms. Schultz and P.C. Thompson, State Farm, in January 2012, communicated the exclusion defence to the Applicant. The initial formal police reports⁶ stated that the registered owner of the motorcycle was Feredon, and that the motorcycle was not insured and was not plated when the accident occurred. The report of P.C. Thompson indicated that "D1 charges pending"; the companion report of P.C. J. Vonnest stated "No charges". The field notes contained in Exhibit 4 (the full police report obtained after the first date of Hearing) states that no charges were laid. Exhibit 4 contains the statement of two witnesses, one of whom was called to testify by State Farm, viz. Mr. Somwaru. Under cross-examination, Ms. Farro confirmed that State Farm did not, after communicating to the Applicant, in early 2012, its intention to rely upon s. 31(1)(a)(i) of the Schedule, request from Hiwad or Roshan, or Hiwad's legal representative, information as to the ownership of the motorcycle at the time of the accident. On November 2, 2011, the SIU had been advised by Hiwad's legal representative, Mr. Ciraku, LL.B., that neither he, nor Hiwad himself (because of his brain injury), had information as to the ownership of the motorcycle.⁷ The SIU focus at that time was the priority issue.

Testimony of Mr. Hiwad Batoor

The Applicant, Hiwad, testified that because of his brain injury, he had no memory of the accident or of the events that occurred on that day prior to the accident. State Farm has accepted that he was catastrophically impaired by the brain injury he suffered in the accident, and did not challenge the veracity of his assertion of memory impairment.

Hiwad stated that what he knows about the motorcycle and the accident is simply what he has been told by his cousins, Pameer and Zahir, and as a result, came to believe that his cousin Pameer had purchased the motorcycle. He stated that he does not know Feredon, and has no memory of meeting him, or of attending at Feredon's home. He stated that he had no memory of the motorcycle, or whether or not it was plated.

Hiwad was born on August 28, 1989, and from prior to the accident to the present, he continues to reside with his parents and brother, Roshan, at their apartment building in North York, Ontario, when he is not in school in Hamilton, Ontario. He was off school for the summer in 2011, and consequently was living at the apartment on the date of the accident. He received his driver's licence to operate a car when he was 17, but never had a licence to operate a motorcycle. He stated that he never had any interest in acquiring or riding a motorcycle, and never had lessons on the operation of a motorcycle. He stated that he did not, in July 2011, have the financial ability to purchase a motorcycle. When he was asked whether or not he had any information, one way or the other, as to whether or not the motorcycle was insured, he answered "No clue". He testified that he would not have driven the motorcycle had he known that it was not insured.

Under cross-examination, he confirmed that during the school year prior to the accident, he was enrolled in the first year of a two-year course at Mohawk College in Hamilton. He was studying Automotive Engineering, in anticipation of entry into McMaster University for a final two years.

He received OSAP financial assistance. He maintained a bank account that he used regularly to cover his expenses. In Hamilton, he lived in a near-campus apartment, sharing the expenses with a roommate. He often returned to Toronto on weekends and used the GO Train to get back and forth between Toronto and Hamilton. His brother, Roshan, owned a Pizza Pizza restaurant and Hiwad would, on a casual basis, attend the restaurant to "just help around". He was not officially employed or on payroll. During the school year, he would often return to Toronto on weekends, and on those occasions generally would attend at the Pizza Pizza to help out. When he did go to the restaurant, he would go and return home with his brother - so the day was for the most part a full work day. In return, his brother gifted him with cash from time to time to help him cover his expenses.

He was told after the accident that his cousin, Pameer, was going to buy the motorcycle, but he did not know whether or not Pameer paid for it.

In the continuing cross-examination, he recounted what he had been told by his cousins, as follows: On the day of the accident, he was hanging out with his cousin, Mr. Zahir Aziz, who was visiting from Montreal. Pameer phoned him to advise that Pameer wanted to "check out a bike" that Pameer was intending to purchase. Hiwad and Zahir picked up Pameer, and drove him to the vendor's home. Hiwad and his two cousins returned to Hiwad's apartment. The owner of the bike then drove it to Hiwad's apartment building.

In answer to a question from me, he confirmed that he had no memory of going to Feredon's home.

Under re-examination, he stated that he had not been charged with any offence arising from this accident.

Testimony of Mr. Roshan Batoor

Mr. Roshan Batoor, born in 1984, is the older brother of Hiwad, and lives with Hiwad and their parents at the aforesaid apartment. Roshan has an Ontario driver's licence (Full G). He has never had a licence to operate a motorcycle. He has never owned a motorcycle, nor does he know how to ride one. He never received training to ride one. His brother, Hiwad, also had no knowledge about motorcycles.

He owned two cars, a 2006 BMW and a 2006 Honda Accord, both of which were insured with State Farm. On rare occasions ("once in a blue moon"), Hiwad would drive the Honda, with permission from Roshan. Hiwad never inquired of him as to whether or not the Honda was insured. Hiwad had never discussed with him an intention to buy either a car or motorcycle. Hiwad has never owned a motor vehicle. Hiwad did not have the financial resources to acquire a motorcycle. To his knowledge, Hiwad never paid for the damages to the motorcycle, or the purchase price.

He was not with Hiwad at any point on July 11, 2011, prior to the accident. He received a phone call at work, advising him of the accident, and he thereupon attended at the hospital while Hiwad was undergoing surgery. He was told by the cousins that they had left the motorcycle with Hiwad, and that Hiwad lost control, resulting in the crash. He had the impression that Pameer wanted to leave the motorcycle underground for a few days, but as his memory of the discussion was not clear, he suggested that counsel ask Pameer directly, when he testifies.

Roshan testified that he had never met, nor spoken to Feredon, and did not know who owned the motorcycle. He denied that he had any information that Hiwad had purchased the motorcycle, or whether or not it was insured. He had never been contacted directly by either State Farm, or the police, concerning the accident. He stated that Hiwad was smart and careful, and not a risk-taker.

Under cross-examination, he confirmed that Hiwad had never discussed with him an intention to buy a motorcycle.

Testimony of Mr. Pameer Aziz

Pameer was 18 years old at the time of the accident. In early 2011, he expressed to a friend his interest in acquiring a motorcycle. He had received an Ontario motorcycle licence in either 2010 or 2011, but it had expired before the date of the accident. He obtained his Ontario licence to drive a car subsequent to the accident. The friend referred him to a man, described by Pameer as "Feredon" (he never knew his last name). He contacted Feredon, and in the period of April to May 2011 approximately, he attended at Feredon's residence on two or three occasions to discuss the purchase of Feredon's motorcycle, and to take instruction on its operation.

On July 11, 2011, he phoned his cousin Hiwad to advise that he was interested in buying the motorcycle that day and wanted Hiwad to accompany him. Hiwad advised him that he wanted to go for a haircut first. Hiwad, accompanied by cousin Zahir, picked him up with the 2006 Honda owned by Roshan. The three cousins went for the haircut appointment, and then drove to Feredon's residence. In the basement of Feredon's home, in the presence of Hiwad and Zahir, Pameer negotiated the purchase price ($2,300.00) with Feredon, and took further motorcycle operation instructions from Feredon. Whether or not the motorcycle was insured was not discussed. Pameer did not have funds at that time to pay the purchase price, but intended to acquire the funds in the following two months. Feredon stated to Pameer that the motorcycle was "good to go" but that he would not transfer the ownership to Pameer until he had received full payment of the purchase price. Pameer's Ontario licence to operate a motorcycle had expired by then, and its re-instatement was intended by Pameer. Pameer had decided that he would store the motorcycle in the basement parking facility at Hiwad's apartment, and requested that Feredon drive it there (a fifteen minute drive). Pameer thought that the motorcycle was insured because Feredon was still the owner, and because Feredon was driving it on a public road to get to the Batoor family apartment. Pameer, Hiwad and Zahir returned to the apartment in the Honda, driven by Hiwad. Feredon followed behind, driving the motorcycle. The motorcycle was licence-plated both at Feredon's residence and on his arrival at the apartment. Pameer did not witness any removal of the plate(s) at any time. The police report indicates that no licence plate was found on the motorcycle by the police upon their arrival at the scene of the accident.

Zahir's motor vehicle was parked in the apartment parking lot. It was decided that Zahir, accompanied by Pameer, would drive Feredon back to his residence. Feredon shook everyone's hands and the three entered Zahir's car, to affect Feredon's return home. Before entering Zahir's car, Pameer placed the motorcycle keys in Roshan's Honda. Hiwad asked his permission to take the motorcycle for a spin in the parking lot, before placing it in the basement storage of the apartment. Pameer gave that permission. On his return from dropping off Feredon, he learned of the accident. Pameer testified that Feredon, after receiving word that the motorcycle had been involved in an accident, attended at Pameer's mother's home, in Pameer's absence, to demand immediate full payment, failing which Pameer would suffer severe physical injury at Feredon's hands. Pameer's mother paid the purchase price in cash. Pameer never saw the motorcycle again. He assumed that Feredon had picked it up as he was still the registered owner.

At no time has he been contacted by police or by State Farm.

Testimony of Mr. Khamchand Somwaru

On July 11, 2011, Mr. Somwaru, born in 1980, was standing on the eighth-floor balcony of the apartment building referred to herein, facing east, overlooking the parking lot at the rear of the building, having a cigarette. His hand was resting on the railing.

He observed a yellow motorcycle enter the parking lot, followed by a silver four-door sedan occupied by two men. The vehicles stopped and the occupants of the silver car exited the vehicle. He saw Hiwad standing in the parking lot when the said vehicles arrived. The helmet-clad motorcycle operator, a man who appeared to be in his late 20s or early 30s, stopped the motorcycle in the parking lot approximately 50 feet east of the building, got off, and immediately removed its licence plate. In answer to a leading question from Ms. Apiou, Mr. Somwaru stated that all four men (Hiwad, the two men from the silver car, and the motorcycle operator) were standing in close proximity to the motorcycle when the licence plate was removed. In less than two minutes, the motorcycle operator shook hands with Hiwad and immediately left the parking lot, in the silver sedan, with the two men who had arrived in the silver sedan.

Hiwad then mounted the motorcycle. Hiwad was not wearing a helmet or any clothing or other equipment or gear normally related to operation of a motorcycle. Mr. Somwaru believed that Hiwad had been clad in a T-shirt and track pants. "A split second after"⁸ Hiwad mounted the motorcycle, the motor revved loudly and the motorcycle careened across the clear parking lot, soared onto a grassy hill, and went through a fence. Hiwad flew from the bike and his body struck a bicyclist on the far side of the adjacent roadway. Mr. Somwaru opined that Hiwad appeared to "have no idea how to ride a bike". He acknowledged the accuracy of his statement to police that the speed of the motorcycle was estimated at 80 km per hour.

All events described above occurred within the time that Mr. Somwaru was smoking one cigarette.

Mr. Somwaru extinguished his cigarette, called 911, and went to the roadway where Hiwad was lying unconscious, and gave a statement to police⁹ who had arrived at the scene shortly after the accident.

He did not know Hiwad personally, but had seen him from time to time in the apartment building, "just hi and hello, that's it". He did not know any of the other men in the parking lot.

Mr. Somwaru testified that he believed that the accident had occurred between 1 p.m. and 2 p.m., but when, under cross-examination, he was advised that the police report recorded the accident as having occurred at 5:30 p.m., he conceded that his memory as to the time could have been inaccurate. However, in all other respects, he stated that his memory was clear. I note that his statement to P.C. Craig Inglis on July 11, 2011, advised that the accident occurred at 5:30 p.m.¹⁰

Between whom and timing of the handshake

In his testimony, Mr. Somwaru consistently stated that the handshake was only between Hiwad and the person who removed the licence plate (i.e. Feredon), and occurred after the licence plate was removed. However, in his statement to P.C. Craig Inglis, dated July 11, 2011, the following words appear: "...3 guys brought this bike - motorcycle to the back of the building at [the apartment].¹¹ The 3 guys (emphasis added) shook hands and gave the guy the keys. The three guys left the other guy with the bike. He then went to his car that was parked at the rear of [the apartment]. He put something in the trunk, then he hop onto the bike”.¹² At p. 49 of the October 2, 2015 transcript of the PIH, lines 8-21, it appeared that Mr. Somwaru might be saying that the handshake occurred prior to the plate removal.

DECISION

The parties agree, and I accept, that State Farm in this PIH has the onus of proving, on a balance of probabilities, that when Hiwad operated the motorcycle, he knew, or ought reasonably to have known, that the motorcycle was not insured.

The primary thrust of State Farm's position is its contention that Hiwad purchased the motorcycle on the day of the accident before the motorcycle was brought to the parking lot at the rear of the apartment, and accordingly, he knew that it was not insured, as he had insufficient time to place insurance, and no evidence was called to suggest that steps were taken by him, or anyone on his behalf, to place insurance. State Farm, armed with the telephone communication, on November 11, 2011, between Ms. Stultz and P.C. Thompson referred to above, intended to call P.C. Thompson as a witness on the first day of the Hearing, i.e. June 22, 2015, to detail his information and sources. As P.C. Thompson advised counsel shortly before the Hearing’s commencement, that he was not available to attend on the first day, State Farm was successful in obtaining an order from me, adjourning the continuation of the PIH until August 7, 2015, to allow for P.C. Thompson's attendance. After Ms. Farro's testimony was completed on June 22, 2015, both parties agreed to proceed with the further two witnesses, Hiwad and Pameer, also on June 22, 2015.¹³

As mentioned above, Hiwad did not contest, for the purposes of the PIH, State Farm's position that the vehicle was uninsured at the time of the accident, as supported by the police reports. Hiwad denies that he knew, or reasonably ought to have known, that the motorcycle was not insured when he operated it. Hiwad denied that he had purchased the motorcycle. He relied on the evidence of his cousin Pameer, who testified that he, Pameer, was the intended purchaser. I use the term "intended". because, if the evidence of Pameer is accepted, that evidence does not necessarily support the conclusion that the purchase was consummated to the degree necessary to achieve legal finality, as Feredon retained the vehicle ownership document, pending receipt of payment in full. Pameer testified that he thought that insurance was still in place, an understanding supported by his observation of Feredon operating the vehicle on public roadways on his way to the apartment, on July 11, 2011.

Alternatively, State Farm takes the position that, even if the Arbitrator is not satisfied on a balance of probabilities, that Hiwad was the purchaser, Hiwad knew or ought reasonably to have known, on the basis of all of the proven facts, that the motorcycle was not insured at the time he operated it.

Should the testimony of Mr. Pameer Aziz be excluded?

State Farm, in the exchange of written closing submissions, asserts that the Arbitrator should exclude Pameer's testimony, because Hiwad, had at no time prior to the PIH, disclosed to State Farm the content of Pameer's anticipated testimony, and had resisted attempts by State Farm to obtain a "will-say" statement with respect to Pameer. Alternatively, given this failure to disclose, State Farm asserts that the Arbitrator should give little weight to Pameer's testimony. The potential evidence of Pameer was not revealed to State Farm until Mr. Wolf, Hiwad's counsel, addressed State Farm's motion to exclude Pameer, at the beginning of the PIH.¹⁴

Mr. Wolf argues, in closing written submissions, that Ms. Apiou's concession to have Pameer's evidence heard on June 22, 2015 was not in any way qualified by any undertaking of the Arbitrator to render a decision on its admissibility at a later time, and the exclusion of Pameer's evidence, sought by State Farm in final submissions, would be improper, unfair, and prejudicial to the integrity of the PIH.

Ms. Apiou, in her closing written submissions, contends that her concession to have Pameer's evidence received on June 22, 2015, was conditional upon or subject to, a ruling by me in due course, as to its admissibility, i.e. protocol - “hear it now, decide admissibility later”, and was made for purpose of expediency. The transcript does not support that assumption. However, I am prepared to concede that, in the exchange of argument on the procedural and admissibility issues that took place at the commencement of the PIH, Ms. Apiou may have reasonably thought, though erroneously, that the said protocol applied to the testimony of Pameer.¹⁵ The exchange was as follows.

At the commencement of the PIH, the parties raised the following procedural issues: (a) the Applicant objected to the admittance into evidence of the transcript of the examinations of Hiwad and Roshan obtained by State Farm in the priority Arbitration proceeding, citing the implied undertaking principle; (b) the Applicant opposed the adjournment of the PIH requested by State Farm to accommodate the attendance of P.C. Thompson who was unavailable on June 22, 2015; and (c) State Farm sought an Order excluding the evidence of Hiwad and Pameer, on the basis that State Farm had not received from the Applicant disclosure of the anticipated evidence of those intended witnesses. With respect to (a), I ruled that the said transcript would be admitted into evidence, subject to my later ruling on its admissibility, after I had opportunity to review the case law presented. With respect to (b), Ms. Apiou suggested that the evidence of the witnesses that were present on June 22, 2015 (Ms. Farro, Hiwad, Pameer and Roshan) be heard that day,¹⁶ and that the PIH be adjourned to resume on August 7, 2015 to accommodate P.C. Thompson's appearance. Mr. Wolf opposed the adjournment. After a brief recess, I stated “Okay, let's get started with the evidence today. And when we get to that touchy point, I will make a ruling at that time". After the evidence was presented on June 22, 2015, I granted the adjournment of the PIH to resume on August 7, 2015.

Counsel proceeded to opening submissions on the substantive issue. Ms. Apiou went first. Mr. Wolf then gave his address detailing the anticipated evidence of his witnesses. Upon hearing the contents of the anticipated evidence, Ms. Apiou submitted that Pameer's evidence should be excluded for reasons of non-disclosure. Then, after exchange of submissions, Ms. Apiou suggested that State Farm would call Ms. Farro, Pameer, and Roshan as its witnesses.¹⁷ That proposed procedure was addressed, without resolution, and Ms. Apiou requested a five minute recess. On return, Ms. Apiou advised that she was calling Ms. Farro. Ms. Farro then testified.

After Ms. Farro's testimony was completed, counsel again addressed the adjournment to accommodate P.C. Thompson's attendance. Mr. Wolf opposed the adjournment. We took the lunch break. On resuming, Ms. Apiou suggested that the PIH proceed, and receive the evidence of Hiwad, Roshan and Pameer, and then be adjourned to resume at a later date.¹⁸ Mr. Wolf opposed the splitting of the evidence, and submitted that, if I were going to order an adjournment, all further testimony should be adjourned to the new date. Ms. Apiou responded, suggesting that the witnesses "who are here today" be heard, and that the PIH be adjourned to hear the evidence of P.C. Thompson. I suggested that I should hear the evidence of the witnesses that were present at that time and then "I am going to make some evidentiary rulings."¹⁹ Mr. Wolf made further submissions and Ms. Apiou stated: "I am prepared to proceed today. I mean, obviously we have had no notice of this evidence, Pameer, but I am prepared to allow counsel to call him as a witness since we will be adjourning to call Officer Thompson".²⁰ Mr. Wolf acceded to that result.

In summary, before any ruling concerning the exclusion of Pameer was made or specifically requested, the parties agreed to have Hiwad's, Pameer's, and Roshan's testimony heard on June 22, 2015, and to have P.C. Thompson's testimony heard on the agreed resumption date of August 7, 2015.

When both counsel agreed to have the evidence of Hiwad, Roshan and Pameer heard on June 22, 2015, perhaps I should have, at that point, specifically enquired of Ms. Apiou as to whether or not she was then indicating her intention to waive her objection to the admissibility of Pameer's testimony. Pameer's testimony was in fact called on June 22, 2015, without any understanding on my part that a decision on its admissibility would be addressed by me in due course. I was requested on August 7, 2015 to make a ruling with respect to the admissibility of the newly-acquired full police report and of Mr. Somwaru's intended evidence and I rendered my decision in that regard in writing on September 17, 2015. I had reserved, until now, my decision with respect to the admissibility of the transcript of the examinations of Hiwad and Roshan obtained in the related priority Arbitration and have rendered it herein.

Perhaps, if Ms. Apiou had made it clear on the record that she believed that the Arbitrator had agreed to hear Pameer's evidence on June 22, 2015, but rule on its admissibility later, then Mr. Wolf could have considered requesting that Pameer's evidence not be heard until August 7, 2015, the date set for resumption to accommodate P.C. Thompson's attendance on behalf of State Farm, and to have considered undertaking to immediately furnish a "will-say" to avoid having to address the possibility of having Pameer's evidence excluded.

I do not intend to exclude Pameer's evidence. He was called without any directly requested or recorded reservation. However, in the event that I am mistaken in that regard, I have reached the same decision, for the following reasons.

Ms. Apiou contends, inter alia, that Hiwad, in failing to provide the will-say, failed in his duty to State Farm, pursuant to s. 33(1) of the Schedule, to provide, in response to a request from State Farm, information reasonably required to assist the Insurer in determining Hiwad's entitlement to a benefit. The request was the request for the "will-say", but also included reference to the effort of State Farm in the fall of 2011 to obtain the Applicant's information concerning ownership of, and insurance covering, the motorcycle. Mr. Wolf, on behalf of Hiwad, responded to the effect that s. 33 has no application to the PIH as non-compliance with s. 33 was never raised as an issue prior to the PIH, and that, in any event, s. 33 has no relevance to an issue where an exclusion is sought, before any request for information is made by the Insurer to the Applicant. Further, Mr. Wolf points out that Hiwad had completed the State Farm questionnaire,²¹ dated September 11, 2011, wherein he advised that he had a driver's licence to operate a car, but did not own an automobile, and was not named as a listed driver in anyone's automobile insurance policy. He was not specifically asked, in the questionnaire or at the priority discovery, about who owned the motorcycle at the time of the accident.

Ms. Apiou, in support of her argument challenging admissibility of Pameer's testimony, at the PIH on June 22, 2015, provided to me and to opposing counsel, a brief entitled "Correspondence" containing copies of correspondence and messages between counsel concerning, inter alia, her request for the will-say. It does not appear that the brief was formally filed as an exhibit, but I have treated it as if it had been. Pameer was identified as a potential witness on April 22, 2015, but not at the November 2014 Pre-Hearing. Ms. Apiou requested a will-say, without result. On May 19, 2015, Ms. Apiou contacted the Pre-Hearing Arbitrator, Ms. Janet Davies, to request a Pre-Hearing resumption to address her request for the will-say. Arbitrator Davies responded, suggesting that counsel review applicable rules and attempt a resolution focussed on the principle of achieving a fair Hearing, before a resumption be sought. Hiwad's legal representative, Mr. Ciraku (Mr. Wolf was retained solely as counsel for the PIH) resisted on the basis that there was no specific requirement under the Dispute Resolution Practice Code compelling the production of will-says - and on the basis that State Farm could have attempted to contact the witness directly, if it had so chosen. On May 21, 2015, Mr. Ciraku advised Ms. Apiou that Pameer would not be called at the Hearing, as he was unavailable, and that Hiwad's other cousin, Zahir, would be called instead. Mr. Ciraku requested a will-say of Ms. Farro, and Ms. Apiou responded that Ms. Farro's evidence is contained in the log notes already provided. On June 19, 2015, Mr. Ciraku e-mailed Ms. Apiou to advise that Pameer would be attending instead of Zahir on the first date of the Hearing, June 22, 2015.

In deciding the admissibility of Pameer's evidence, I am guided by the paramount goal that the Hearing must seek to achieve a just and fair decision. Thus, my analysis begins with a review of the procedural background.

State Farm's initial focus, in the fall of 2011, was the priority issue. It was satisfied that the motorcycle was not insured. Hiwad responded to State Farm's initial questionnaire that addressed the priority issue. State Farm recognized that Hiwad had memory impairment as a result of his brain injury, and consequently did not seek from him a plenary description of the facts surrounding his involvement with the motorcycle, or why he was operating it. However, as early as October 12, 2011,²² State Farm had identified a potential defence pursuant to s. 31 of the Schedule, and notified the Applicant of that potential defence. It appears that it had not yet received the police report. It contacted Hiwad's legal representative, Mr. Ciraku, to request information as to the ownership of, and the insurance on, the motorcycle, but only received the response that Hiwad was unable to provide any information in that regard because of his brain injury, and that Mr. Ciraku was unable to furnish any useful information in that regard.²³ State Farm’s SIU became involved and Ms. Stultz recorded the call from P.C. Thompson. That call should have provoked further investigation to obtain disclosure of the sources of information that supported P.C. Thompson's disclosure and conclusions. I do not see that that was done.

At that point, State Farm decided that it had a valid defence pursuant to s. 31(1)(a)(i), based upon the position that Hiwad purchased the motorcycle on the date of the accident. I have no evidence that State Farm sought information from Feredon, the registered owner who was identified in the police reports, to support its contention. Feredon was not called as a witness, and the evidence does not disclose what efforts were made by State Farm to contact Feredon. It appears that State Farm simply decided to call P.C. Thompson to testify as to the evidence that it was relying upon, not anticipating the possibility that evidence might be called on behalf of Hiwad to refute P.C. Thompson's conclusions concerning ownership at the time of the accident. State Farm did not request, after the call from P.C. Thompson, a specific response from Hiwad pursuant to s. 33(1) of the Schedule concerning the ownership issue, nor seek a s. 33(2) examination with respect to that issue. Hiwad and Roshan had willingly attended an Examination Under Oath in the priority Arbitration proceeding. Granted, State Farm may have thought that Hiwad's memory was impaired to the point that a s. 33(2) examination would not be productive, with respect to the issues before me. If State Farm had followed up with P.C. Thompson, early on, it is probable that further investigation of the ownership issue would have resulted. Indeed, it was not until shortly before the PIH began that Ms. Apiou learned that the police had not provided its full report. P.C. Thompson failed to attend the first day of the PIH, and Ms. Apiou requested an adjournment to secure the attendance of P.C. Thompson, and, on August 7, 2015, a further opposed adjournment to secure the attendance of a previously undisclosed witness, i.e. Mr. Somwaru. I granted leave to State Farm to call Mr. Somwaru, by my interlocutory Order dated September 17, 2015.

The governing principle is the achievement of a just and fair Hearing. A Hearing would not be fair if a party, at the hands of the opponent, has suffered procedural detriment that would compromise the integrity of the PIH. State Farm was put at a disadvantage by the late disclosure of Pameer's anticipated evidence. Given the testimony of Roshan and Pameer at the PIH, I am concerned that Mr. Ciraku did not, early on, in response to State Farm's request for disclosure of information concerning ownership of, and insurance coverage on, the motorcycle, disclose that information. Since Roshan testified that he spoke to Pameer at the hospital on July 11, 2011, Roshan knew the alleged involvement of Pameer, and as Roshan was communicating with Mr. Ciraku on Hiwad's behalf, it is likely that Mr. Ciraku was apprised of that information when, or shortly after, the s. 31(1)(a)(i) potential defence was raised.

However, in the particular circumstances of this case, and in the exercise of my discretion, I find that the achievement of a just and fair Hearing would be potentially more significantly compromised, if I exclude Pameer's evidence. The Applicant was brain injured and had no memory of the event. The late disclosure may be a factor when the issue of costs is addressed in due course.

I applied the same analysis in my decision, dated September 17, 2015, wherein I permitted State Farm to call witness Somwaru, who had not been identified as a potential witness for State Farm until shortly before the August 7, 2015 resumption of the PIH. As well, I permitted State Farm to file the full police report that was not obtained until early August 2015. I am of course cognizant of the principle that no party has property in a witness, and that each party has the opportunity to investigate and identify a potential witness and to take steps to secure the attendance of that witness at the Hearing.

By the combination of s. 5.4(1) of the Statutory Powers Procedure Act²⁴ and s. 41.3(b) of the Dispute Resolution Practice Code, the Arbitrator has discretion to make such order as is just, with respect to the exclusion of a witness. Section 41.1 requires the identification of a witness at least 30 days before commencement of the PIH but does not specifically require disclosure of the anticipated evidence of a non-expert witness. However in some cases, non-disclosure of an identified witness' anticipated evidence would be unfair. In my view, notwithstanding that State Farm was seeking an exclusion, and had the onus of proof, the deliberate decision to withhold disclosure of Pameer's anticipated evidence caused me concern. However, in the interest of having a full, fair and just Hearing,²⁵ I am satisfied that Pameer's evidence should not be excluded.

Ironically, Pameer's evidence, for reasons that I have given below in my analysis, assists State Farm's position, as I have found that Mr. Somwaru's evidence alone would be incapable of supporting the conclusion, on balance of probabilities, that a sale of the motorcycle to anyone had taken place, let alone a sale to Hiwad.

The State Farm log note recording the November 11, 2011 telephone message from P.C. Thompson is insufficient to support the conclusion that a sale to Hiwad had taken place. It does not record the source(s) of the information, nor the basis for the conclusion.

I therefore find that the evidence of Pameer shall not be excluded.

Admissibility of the Discovery Transcript from the Priority Arbitration

On the same principle, I find that the transcript of the discovery in the priority dispute²⁶ shall also be admitted, over the objection of Mr. Wolf. Mr. Wolf, early in the PIH, objected to its admission on the basis that the common law “implied undertaking rule”, recognized as law in Ontario, and codified for court proceedings in Rule 30(1) of the Ontario Rules of Civil Procedure,²⁷ is applicable to potentially protect Hiwad and Roshan from use of the transcript in this PIH. The implied undertaking rule imposes upon a party in a litigious proceeding, who receives documentary or discovery disclosure from an opposite party in that proceeding, an undertaking to the trier of fact in that proceeding to not use the information or documentation so received, for any purpose other than its use in the said proceeding. Mr. Wolf provided a very helpful Brief of Authorities addressing that issue. I admitted the transcript, subject to a ruling I would make in due course, after having an opportunity to review the authorities. The authorities dealt with the raison d'etre for the rule; the issue of the jurisdiction, or lack thereof, of the FSCO Arbitrator; and the scope of the jurisdiction; and the relative prejudice considerations applicable to both sides, arising from admittance or rejection.²⁸ I am not sufficiently satisfied that the implied undertaking rule as discussed in the authorities applies in this case, where State Farm is a party in the priority dispute, arising out of the same incident, notwithstanding that it is adverse in interest to Hiwad in both proceedings.

The testimony recorded in the priority discovery addresses primarily the family relations in the Batoor household, and Hiwad's relevant financial position, and is consistent with the evidence in that regard given at the PIH. The transcript did not directly address the issue of ownership or insurance coverage or Hiwad's knowledge with respect to that. The transcript was not used to any meaningful extent in the cross-examination of Hiwad and Roshan at the PIH. And neither party addressed the admissibility issue in oral or written final submissions. It appears it really became a non-issue. However, in exercising my discretion, I have decided that it should be admitted. I do not see that Hiwad was in any way prejudiced by its admission.

Did Hiwad know, or should he reasonably have known, that the motorcycle was uninsured? Did Hiwad purchase the motorcycle?

State Farm relies primarily on the evidence of witness Mr. Somwaru, and specifically his evidence of the handshake; the removal of the licence plate; and the leaving of the motorcycle with Hiwad, to support, on a balance of probabilities, the conclusion that Hiwad had purchased the motorcycle prior to operating it. In my view, the evidence of the handshake (even if the handshake was solely between Feredon and Hiwad) and removal of the licence plate, and the leaving of the motorcycle in the parking lot, would not, standing alone, be sufficient to prove, on balance of probabilities, that a sale to Hiwad had taken place. Khamchand's evidence places Hiwad in the parking lot when the motorcycle arrived. Hence, without Pameer's evidence, we have no evidence that Hiwad had even met Feredon earlier that day or at any time before the meeting in the parking lot.

In Mr. Somwaru’s statement to P.C. Craig Inglis, the following words appear: "...3 guys brought this bike - motorcycle to the back of the building at [address]. The 3 guys shook hands and gave the guy the keys..."(emphasis added). The removal of the plate could be consistent with a number of logical scenarios that can be consistent with a non-sale situation, and inconsistent with the conclusion that Hiwad was the buyer. The alleged handshake between Hiwad and Feredon, that took place just before Feredon left the parking lot, is consistent with a goodbye gesture, since Feredon was leaving for home. Neither P.C. Thompson nor Feredon was called as a witness by State Farm.

Without the testimony of Pameer, there would have been insufficient evidence that the motorcycle had, in fact, been sold to anyone. The record of the phone call between P.C. Thompson and Ms. Stultz of State Farm SIU was hearsay, and did not disclose the source(s) of information relied upon by P.C. Thompson in support of his conclusions. And, as I noted above, P.C. Thompson was not called to testify, nor was Feredon. State Farm has the onus of proof, and the evidence does not provide any evidence of State Farm's efforts to contact Feredon, or any reason for State Farm's failure to call Feredon as a witness at the PIH. Nor was any reason given for State Farm's decision to not call P.C. Thompson on August 7, 2015, although the adjournment to that date was granted to enable his attendance. Likewise, Ms. Stultz was not called as a witness, and I received no information as to her availability or lack thereof. I, consequently, can give very little weight to the log note entry recording the telephone contact between Ms. Stultz and P.C. Thompson, referred to in the testimony of Ms. Farro. I note that the police report²⁹ does not make any reference to any information, or its source, supporting the communication between Ms. Stultz and P.C. Thompson on November 11, 2011, or the conclusions reached by P.C. Thompson.

Pameer testified that he was the intended purchaser of the motorcycle. Because of the late disclosure, I took care in analyzing his credibility. I accept the evidence of Pameer. He gave his evidence in straightforward fashion, responsively, and without evasion. Pameer was previously licensed to operate a motorcycle (a first-stage licence). I accept his evidence that a friend referred him to Feredon, and that he attended at Feredon's residence on two or three occasions during the spring of 2011 to view the motorcycle, and to receive instruction on its operation. I noted the evidence, given by Pameer, that subsequent to the accident, and in his absence, his mother paid, in cash, the purchase price demanded by Feredon. No documentary proof of payment was tendered in evidence. Pameer's mother was not called as a witness. This evidence was hearsay and was not persuasive to the decision I had to make. I accept Pameer's evidence that Feredon, before leaving the parking lot, gave the keys of the motorcycle to Pameer, not to Hiwad, and that Pameer then placed them in the Honda.

I accept as well the evidence of Khamchand, where it does not conflict with Pameer's testimony, or with Khamchand's statement to police. Khamchand was an independent witness, and presented his evidence in straightforward fashion. I believe that inconsistency between his statement to police and his testimony can be explained by passage of time. I accept the evidence of Hiwad and Roshan that Hiwad had no interest in buying a motorcycle, had insufficient financial resources to buy one, and was not licensed to operate one on a highway. I note their testimony that Hiwad was not a risk-taker, and so would unlikely operate a motor vehicle he knew to be uninsured. In closing written submissions, Ms. Apiou made reference to the police records that disclosed that Hiwad had been twice convicted of speeding, and once convicted of driving while holding a hand-held device, to refute the contention that Hiwad was not a risk-taker. Hiwad struck me as an intelligent, articulate young man, of forthright demeanor. I accept Khamchand's evidence that Hiwad appeared to not know what he was doing when he put the motorcycle in motion.

The evidence supports the conclusion that Hiwad was not the owner, or prospective owner of the motorcycle, when he operated it, and I so find.

What did Hiwad know, or ought reasonably to have known?

Pameer's evidence places Hiwad in the basement of Feredon's residence on July 11, 2011 during the sale negotiations. That evidence is relevant to the assessment of what Hiwad knew, or ought reasonably to have known, concerning the insurance coverage on the motorcycle. Pameer testified that he, Pameer, prior to July 11, 2011, had shown interest in acquiring a motorcycle. Pameer had acquired a motorcycle driver's licence (though expired at the time). A friend pointed him to Feredon. He visited Feredon's residence two or three times prior to July 11, 2011 to check out the motorcycle, and to receive operating instructions. He called Hiwad to ask him to accompany him to Feredon's place to check out the motorcycle, before he committed to its purchase. The haircut detour evidence lends credibility to his account - extraneous detail can often have that effect. Hiwad was there at Feredon's residence and was close enough to witness the achievement of the agreed price, and importantly, Pameer's statement to Feredon that he did not have the purchase money with him that day, and the responding assertion by Feredon that he would not transfer the ownership to Pameer, until he was paid in full. That does not look like a sale - it looks like an intended sale that was not as yet completed. The motorcycle was plated when Hiwad was at Feredon's place, and, by all evidence, the plate was still on the motorcycle while Feredon was driving the motorcycle on public roadways on the way to the parking lot at the apartment. Pameer testified that he thought that the motorcycle continued to be insured. Pameer stated that it was his intention to store the bike in the basement at Hiwad's apartment. The removal of the plate could reasonably be consistent with an intention by Feredon to ensure that the motorcycle was not operated, until payment was received and ownership was officially transferred. Or it could be consistent with a sale having been affected. No evidence was elicited as to the reason the plate was removed. Feredon was never called as a witness.

Pameer testified that, after the meeting at Feredon's residence, Hiwad, Zahir, and he returned to the parking lot in Roshan's silver-coloured car, with Feredon following behind on the motorcycle. This does not agree with the evidence of Khamchand who stated that Hiwad was waiting in the parking lot, when the silver car and motorcycle arrived. Pameer said that the three men (Feredon, Zahir and Pameer) left the parking lot in Zahir's vehicle that had been parked in the parking lot (Zahir was visiting from Montreal), and not in the silver car, as Khamchand had stated. That would make sense, since all the evidence confirms that Hiwad remained in the parking lot, and it is unlikely that someone other than Hiwad would drive Roshan's car. And importantly, Khamchand had testified that the silver-coloured vehicle was the vehicle that entered the parking lot, accompanied by the motorcycle. The only evidence describing the silver colour of a vehicle was the evidence that the Honda, Rohan's car, was silver-coloured. Khamchand testified that Hiwad was not driving the Honda when it entered the parking lot, as Hiwad was waiting in the parking lot when the Honda arrived. It is unlikely that either Pameer or Zahir had Roshan's permission to drive his car.

The handshake between Hiwad and Feredon is much less indicative of a sale, than it is indicative of a goodbye, since everyone but Hiwad was leaving the parking lot, and Pameer and Zahir were relatives whose return was imminent.

When there is no direct evidence of the knowledge of the Applicant as to the insurance coverage on the vehicle, the test in s. 31(1)(a)(i) of the Schedule becomes an objective test. Because of his injuries, the Applicant was unable to testify as to what he knew on July 11, 2011, concerning insurance coverage on the motorcycle when he operated it. In final written submissions, Ms. Apiou challenged the degree of memory impairment alleged by Hiwad, citing his very responsive deportment in answering questions addressed to him during the PIH. I am satisfied on the evidence before me that Hiwad has no memory of the events of July 11, 2011. There was no medical or psychiatric evidence, or any evidence, called by State Farm to refute that assessment.

I must therefore assess what an ordinary rational person, of the age, education, and background of the Applicant, in the circumstances he encountered that day, ought reasonably to have known about the insurance coverage on the motorcycle.³⁰ Note that s. 31(a)(i) does not use the words "...could reasonably have known....". The plain language of the test does not require the Applicant to find out, or investigate, the insurance coverage. It simply explores what he knew, by applying the test of what an ordinary rational person, in the circumstances revealed by the evidence, would reasonably be expected to have known. In the face of denial of knowledge or, as here, no memory as to knowledge, the test measures the reasonable likelihood of knowledge, or lack thereof. Arbitrator Wacyk pointed out in Nwakwesi that s. 31(1)(a)(i) was put in place predominantly to deal with Insureds who have let their policies lapse, or had them cancelled, and then subsequently presented claims. The Insurer's paper trail would protect the Insurer in that scenario. The section was not designed to "cast a broad net" to trap the unwary.

There was no evidence that Hiwad had intended to drive the motorcycle prior to its arrival at the parking lot. There was no evidence as to what, if any, discussion took place among the three cousins during the trip from Feredon's place to the apartment building.

On the evidence, I am inclined to believe that Hiwad, on balance of probability, did not direct his mind to the issue of coverage at all when he hopped onto the motorcycle. There was no evidence that he had intended to drive the bike, before its arrival at the parking lot. He was probably curious about the bike, and decided, on the spot (less time than the time Khamchand took to smoke a cigarette) to take it for a short spin in the parking lot. That conclusion is supported by the testimony of Pameer that Hiwad, in the parking lot, asked Pameer's permission to take the vehicle for a short spin in the parking lot. However as soon as Hiwad turned on the motor, the vehicle took off, and he was unable to stop it, or did not know how to stop it. As that conclusion as to last-minute impulse is basically intuition, it does not play a role in my assessment of the issue before me.

I have found that State Farm has not proven on a balance of probabilities that Hiwad purchased the motorcycle, before operating it, and therefore would know it was not insured. I accept Pameer's evidence that he was the intended purchaser. I find as well that State Farm has failed to prove, on a balance of probabilities, that an ordinary rational person in Hiwad's position that day, ought reasonably to have known that the motorcycle was uninsured. Insurance was not discussed at Feredon's residence. Particularly given that this vehicle was driven on the street by Feredon, a normal rational person would normally expect or assume that there was coverage on the motorcycle. The sale to Pameer was not completed in normal fashion (i.e. payment of purchase price and transfer of ownership). The removal of the plate is as consistent with Feredon's desire to continue having control over the use of the motorcycle pending payment and completion of the deal, as it is with the inference that the deal with Pameer was completed. There is simply insufficient evidence before me to satisfy me that, on balance of probabilities, our ordinary person in these circumstances would likely have known that the motorcycle was uninsured.

I therefore find that the evidence is insufficient, on a balance of probabilities, to satisfy me that Hiwad knew, or reasonably ought to have known, that the motorcycle was uninsured at the time he operated it. State Farm has failed to satisfy its onus of proof in that regard.

CONCLUSION

Hiwad is not excluded by s. 31(1)(a)(i) of the Schedule from claiming income replacement benefits; non-earner benefits or a benefit under sections 21, 22 or 23 of the Schedule.

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.

February 29, 2016

H. Michael Kelly, Q.C. Arbitrator

Date

ARBITRATION ORDER

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

1. Mr. Hiwad Batoor is not excluded by s. 31(1)(a)(i) of the Schedule from claiming income replacement benefits; non-earner benefits or a benefit under sections 21, 22 or 23 of the Schedule.

2. 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.

February 29, 2016

H. Michael Kelly, Q.C. Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Counsel in their written submissions described this witness as "Somwaru Khamchand". However in his testimony (Transcript, October 2, 2015, p. 4), he stated that his last name was "Somwaru." I noted that in his statement to police (contained in Exhibit 4) there is a comma between Somwaru and Khamchand, suggesting that Somwaru is his last name, and Khamchand his first name.
3. 3Exhibit 4.
4. 4Exhibit 1A, Tab 18.
5. 5See Exhibit 1B, Insurer's Document Brief, Volume 1B, Tab 22, p. 121.
6. 6Insurer's Document Brief, Volume 1 of 2, Exhibit 1A, Tab 6.
7. 7Exhibit 1B, Tab 22, p. 127, Log Note 76.
8. 8Transcript, October 2, 2015, p. 21.
9. 9Exhibit 4.
10. 10Exhibit 4, p. 17.
11. 11Exhibit 1B - Insurer's document Brief Volume 2, Tab 21, first 4 pages.
12. 12Exhibit 4, p. 16.
13. 13Transcript, June 22, 2015, pp. 174 and 177.
14. 14Transcript, June 22, 2015, pp. 58-61.
15. 15Transcript, June 22, 2015, pp. 174-177.
16. 16Transcript, June 22, 2015, p. 44.
17. 17Transcript, June 22, 2015, pp. 67-68.
18. 18Transcript, June 22, 2015, p. 163.
19. 19Transcript, June 22, 2015, p. 175.
20. 20Transcript, June 22, 2015, p. 177.
21. 21Exhibit 1B, Insurer's Document Brief, Volume 2, Tab 21, first 4 pages.
22. 22Explanation of Benefits, dated October 12, 2011, Exhibit 1A, Tab 18.
23. 23State Farm Log Notes, Exhibit 1B, Tab 22, pp. 141 (Log Note 13); 133 (Log Note 44); 127 (Log Note 76); and 122 (Log Note 94).
24. 24R.S.O. 1990 c. S.22
25. 25Hurmz and Wawanesa Mutual Insurance Company (FSCO Appeal P13-00022, February 11, 2014).
26. 26Insurer's Supplementary Document Brief, Exhibit 3.
27. 27R.R.O.1990 Reg. 194 (under the Courts of Justice Act, R.S.O. 1990, c.43)
28. 28Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 37 C.P.C. (3d) 181 (Ont. C.A.); Gocan and State Farm Mutual Automobile Insurance Company (FSCO A01 B 000799, December 31, 2001); Sandhu and CAA Insurance Company (Ontario) (FSCO Appeal P01 00044, January 18, 2002); Majer and Kingsway General Insurance Company (FSCO A03 B 00466, July 10, 2003); Pellerine and Dominion of Canada General Insurance Company (FSCO A07 002404, July 24, 2008).
29. 29Exhibit 4.
30. 30Jacobs and Economical Mutual Insurance Company (FSCO A-004393, June 16, 1994); Nwakwesi and Security National Insurance Company/Monnex (FSCO A00-000607, January 8, 2001)