Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 160
FSCO A13-009976
BETWEEN:
QAMAR ABDULLAHI
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Arbitrator Barry S. Arbus, Q.C.
Heard: In person at ADR Chambers on April 26 and April 27, 2017 and by written submissions completed on May 19, 2017
Appearances: Ms. Qamar Abdullahi participated Mr. Ryan Kirshenblatt participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ms. Qamar Abdullahi, was involved in an incident (the “incident”) on March 10, 2011 that gives rise to the dispute between the parties. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 The parties were unable to resolve their dispute through mediation and the Applicant, through her 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 parties requested that this Hearing be restricted to one preliminary issue and that the hearing of all other issues be postponed until determination of the preliminary issue.
The issue in this Preliminary Issue Hearing is:
- Was the Applicant involved in an accident as defined by Section 3(1) of the Schedule?
Result:
- The Applicant was not involved in an accident as defined by Section 3(1) of the Schedule.
EVIDENCE AND ANALYSIS:
Background
On March 10, 2011, the Applicant was driving her 1998 Acura motor vehicle southbound on Callowhill Drive near the intersection of Clement Road in Toronto. The Applicant alleges she was stopped at the stop sign where Callowhill meets Clement and was rear-ended by a 2002 Ford Explorer driven by a third party. The Applicant called 911, and a fire truck, ambulance and police officers arrived at the scene. The Applicant was subsequently taken by ambulance to the hospital for medical attention. At the time of the incident, the Applicant had two passengers with her, neither of whom appeared to have been seriously injured. Both cars were subsequently towed from the scene of the incident and examined for damage afterwards.
The Applicant’s Position
Section 3(1) of the Schedule reads, “Accident means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, dentures, hearing aid, prosthesis or other medical or dental device.” In order to satisfy the definition of an accident, it is well-settled law that there are two tests that must be met as stated by the Court of Appeal in Greenhalgh v. ING Halifax.2 First: did the incident arise out of the use or operation of an automobile (the “purpose test”), and second, did the use or operation of the automobile directly cause the impairment (the “causation test”)? The Applicant argues that both tests have been met in that the incident arose out of the ordinary and well-known activities to which automobiles are put and, secondly, the impairment suffered by the Applicant resulted as a direct link of causation and that the incident in question was the direct cause of the impairment suffered by the Applicant.
To support her position, the Applicant’s evidence was that she had driven the vehicle, picked up her two passengers, was rear-ended by the other car and gave evidence to substantiate her claim.
The Insurer’s Position
The Insurer takes the position that an accident did not occur. The Insurer claims that the evidence itself does not support the Applicant’s position. The Insurer claims that the evidence of the Applicant was not conclusive enough to discharge the onus upon her to establish that an accident, in fact, had occurred. In support of the Insurer’s position, the Insurer produced two witnesses, Mr. Sam Kodsi, who is an expert in accident reconstruction, and PC Hans Schafhauser with the Toronto Police, who has 15 years’ experience attending collision scenes and is familiar with the intersection in question.
The Insurer’s position is that the failure of the Applicant to produce the additional witnesses to corroborate her version of the facts, together with the evidence of Mr. Kodsi and PC Schafhauser, are not enough for the Applicant to satisfy the onus to prove that the accident in fact had occurred.
Summary
It is indeed unfortunate that the Applicant was unable to produce any witnesses to corroborate her version of what transpired on the night of March 10, 2011. As was stated by David R. Draper in the TTC and Wooten3 decision, “the law in Ontario is that on a claim for payment under an insurance policy, the claimant has the burden of proving that he or she