Neutral Citation: 2017 ONFSCDRS 204 FSCO A12-006527

BETWEEN:

EMMANUEL IKPONMWONBA Applicant

and

INTACT INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Minor error on page 10 corrected on August 9, 2017 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedures Act.

Before: Arbitrator Morris J. Winer, Q.C.

Heard: In-person at ADR Chambers June 15, 2017 and by written submissions completed June 30, 2017

Appearances: Mr. Emmanuel Ikponmwonba participated Mr. Michael Krylov participated for Mr. Emmanuel Ikponmwonba Mr. Sean McGarry participated for Intact Insurance Company

Issues:

The Applicant, Mr. Emmanuel Ikponmwonba, was injured in a motor vehicle accident on August 29, 2010 and sought accident benefits from Intact Insurance Company (“Intact”), 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:

Was the Applicant involved in a motor vehicle accident as defined by the Schedule?²
Is either party entitled to its expenses of this proceeding?

Result:

The Applicant was involved in an accident as defined by the Schedule.
Should the parties be unable to agree on the expenses of this matter they may request an appointment before me to determine the expenses in accordance with Rules 75-79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Relevant Legislation

Section 268(10) of the Insurance Act:³

Every contract evidenced by a motor vehicle liability policy ... shall be deemed to provide for the statutory accident benefits set out in the Schedule ... subject to the terms, conditions, provisions, exclusions, and limits set out in the Schedule.

Statutory Accident Benefits Schedule:⁴

Section 2(1) In this Regulation,

“accident” means an incident in which the use or operation of an automobile directly causes an impairment ....

Decision

The evidence at the Hearing consisted of a Joint Brief containing written statements from the drivers and passengers of the two cars involved;⁵ a police report; field notes and statement of Officer Chung;⁶ Kodsi Engineering Report and CV of engineer Mr. Shady Attalla;⁷ statements and investigative reports of Ms. Susan Collings, the investigator for the Insurer, who also testified; and some civil and criminal court records. The driver of the car the Applicant was in, Mr. Bill Blocker, gave oral evidence having been summonsed by the Insurer, and Mr. Attalla gave expert oral evidence on behalf of the Insurer. The Applicant was present throughout but elected not to testify.

The collision occurred at night on August 29, 2010, on Victoria Park Avenue near the driveway of an apartment building, between an Oldsmobile driven by Mr. Khalid Said, exiting from the driveway with passenger Mr. Hadi Al-Kisadi, and a Chevrolet driven by Mr. Blocker with passengers Mr. Christopher Lyirhiaro, Mr. Godwin Asumadu, and the Applicant. Mr. Said was charged with failing to yield from a private drive,⁸ but the charge was withdrawn after the police were shown the Kodsi Engineering Report referred to later.

Mr. Blocker and his passengers were each later charged with fraud, and Mr. Blocker was also charged with dangerous driving. However, it appears all those charges were also withdrawn.⁹ Mr. Blocker and his passengers say they were injured when they were travelling north on Victoria Park in the Chevrolet, and the Oldsmobile quickly drove west out of the driveway, and the front of the Chevrolet struck the side of the Oldsmobile. They all say Mr. Blocker did not apply his brakes or stop before the collision. Mr. Blocker, they claim, was driving at a constant speed right up to the crash. The Applicant and the others in the Blocker car claimed that they were injured. They deny the presence or involvement of other cars and deny any staged collision. The Applicant says he was knocked unconscious, but Mr. Blocker says no one was unconscious. Mr. Blocker and the Applicant say the Oldsmobile did not stop prior to entry into Victoria Park, but Mr. Lyirhiaro is not sure. Mr. Asumadu says “I did see a car waiting at the end of the driveway.... I did see the car pull out onto Victoria Park. I think he was trying to make a south turn.... Actually, I don’t think the other car stopped at the end of the driveway before pulling out in front of us. I think he just drove thru [sic] without stopping.” The first part of Mr. Asumadu’s statement contradicts the second part.

Mr. Blocker testified that he did not know the others, but the Applicant and Mr. Lyirhiaro stated that they have known Mr. Blocker for two years. Mr. Blocker also said his seat belt was buckled, but the engineer’s report shows that his seat belt was unbuckled. He could not remember if he was driving at a steady speed, if he hit the brakes, if he swerved, how many car accidents he has had, what he told the police, or if he spoke to the insurance representative. I found, because of these convenient memory losses and the inconsistencies in the evidence, that his version of how the crash occurred is unreliable.

Mr. Said in his statement said he was stopped in his Oldsmobile at the end of the driveway of 2743 Victoria Park Avenue, with the left turn signal flashing about to make a left turn to go south on Victoria Park Avenue.¹⁰ They noticed three cars stopped facing north a few car lengths to the south. They saw no reason for them to be stopped, unless perhaps there had been some mishap. The road ahead was clear and straight. The lead car flashed its lights indicating permission for Mr. Said to make his turn. He hesitated because the Oldsmobile should have been moving forward. It flashed its lights again. Mr. Said then moved west onto Victoria Park. The lead car quickly moved north into the southbound lane blocking Mr. Said’s progress. The second car, the Chevrolet driven by Mr. Blocker, accelerated quickly screeching its wheels and struck the Oldsmobile on the driver’s side. The other cars took off. The police were called. Mr. Said gave a statement to the police at the scene,¹¹ and another to the Insurer on September 7, 2010.

Mr. Al-Kisadi, the passenger in the Oldsmobile, in his statement corroborates the evidence of Mr. Said and adds that he knew at the time this was a staged collision.¹² He saw one of the other two vehicles take off when Mr. Said approached it.

Mr. Shady Attalla is an engineer and accident reconstruction expert with impressive credentials.¹³ He was the lead engineer in over 700 reconstructions. He provided a report of his investigation for the Insurer.¹⁴ The Applicant’s counsel acknowledged the expertise of Mr. Attalla and there was minimal cross-examination. I found his evidence credible. He examined the Electronic Data Recorders (EDRs, or black boxes) of the Oldsmobile and the Chevrolet. The Oldsmobile was recorded to have reached a speed of 108 kph, but he concluded that this was earlier and unrelated to this accident. The Chevrolet had stopped, and in five seconds prior to the collision, it accelerated to 29 kph and possibly higher. It did not brake; it was accelerating at the crash. This is not typical. Most drivers, he says, apply the brakes before a crash.

The evidence of Mr. Attalla, which I accept, is contrary to that of Mr. Blocker and his passengers, who maintained that Mr. Blocker travelled at a constant speed right up to the crash. There is consistency between the evidence of Mr. Attalla with that of Mr. Said and Mr. Al-Kisadi. There is consistency between Mr. Said’s statements to the police officer at the time of the accident and his statement to the investigator months later. It is not likely that Mr. Said and Mr. Al-Kisadi could have concocted such an elaborate story so quickly at the time of the accident. This is not a criminal trial, and I am entitled to infer from the fact that the Applicant, who sat through the Hearing but elected not to give evidence, would not give helpful testimony to negate a contrived collision. There was no opposing expert evidence of how the crash happened. The fact that the Applicant’s statement supported the evidence of Mr. Blocker about the constant speed indicates complicity between Mr. Blocker and the Applicant. I prefer the evidence of Mr. Attalla, Mr. Said and Mr. Al-Kisadi over that of the Applicant and the occupants of the Blocker car regarding how the crash occurred.

The investigator who gathered the evidence for the Insurer, Ms. Susan Collings, testified to the effect that one cannot have an intentional accident in the same way that in ordinary parlance one would say “it wasn’t an accident; it was intentional”. She went on to say that the definition of “accident” in the Schedule doesn’t include a staged crash.

That is actually what I have to decide. The word “accident” is a defined term. The words are, “accident means”, in the definition. The Schedule is an accident benefits scheme, not one based on fault or negligence. To give effect to the Insurer’s contention in the present case that “accident” still retains its everyday or common law meaning, the definition would have to read something like this, “‘accident’ means an accident in which....”.

There are provisions in the Schedule available to an Insurer to deny benefits and obtain repayments as a result of nefarious activities, such as sections 30(2)(c)(i)(ii), 47(1)(a) and (b), and 48(1).¹⁵ An Insurer may pursue those remedies. I am only deciding the issue given to me.

The word “accident” has a special meaning; this Hearing is to determine whether an “accident” as defined occurred.

In Chisholm v. Liberty Mutual Group, the plaintiff was seriously injured when someone fired gunshots at his car. The Insurer refused to pay for benefits on the basis that the plaintiff was not in an “accident” as defined under s. 2(1) of the Schedule. Laskin J.A. agreed with the Insurer that gunshots were the cause of the impairment, not use or operation of the car, and stated:¹⁶

... Chisholm’s argument disregards s. 268(1) of the Insurance Act which makes entitlement to accident benefits ‘subject to the terms and conditions provisions exclusions and limits’ in the Schedule. By this provision the legislature intended that accident benefits coverage would be determined by regulation, and that the definitions in the schedule would prevail over the provisions of the Act.

Laskin J.A. also adopts a definition of “direct cause” from Black’s Law Dictionary.¹⁷ He says:

The motions judge and the Financial Services Commission have essentially adopted the same test of direct causation by relying on a definition of direct cause in Black’s Law Dictionary, ‘The active, efficient cause that sets in motion a train of events which brings about the result without the intervention of any force started and working actively from a new and independent source.’... Applying this definition ... the shooting constituted an intervening act, independent of the vehicle’s use or operation which clearly broke the chain of causation....

It appears that both Laskin J.A. and the trial judge applied only this test to determine direct cause.

The case Martin v. 2064324 Ontario Inc.¹⁸ also dealt with the meaning of the term “accident”. The plaintiff, Mr. Martin, was severely beaten by two men who attempted to rob him and steal his vehicle. He was pepper sprayed, pushed into the trunk of his car, and forced in to the front of the car to help shift the gears while being hit on the head. They forced him out of his vehicle and drove over his foot while driving off. The Court doubted that the Insured’s injuries, with the possible exception of the foot injuries, were directly caused by the use or operation of the automobile under s. 2(1) of the Regulation.

Cronk J.A. adopted a two-part test to apply to determine whether an “accident” occurs:¹⁹

Was the use or operation of the vehicle a cause of the injuries?

[If so], was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the ‘ordinary course of things’? (Emphasis added). In that sense, can it be said that the use or operation of the vehicle was a ‘direct cause’ of the injuries?

Cronk J.A. commented upon the cause of injuries and assaults inside and outside of the car. They were not directly caused by the use or operation of his car. The car was not the dominant feature in these assaults. The assaults, which were distinct acts independent from the use or operation of the vehicle, caused his injuries. It was not enough to show that an automobile was somehow involved in the incident giving rise to the injury. Forcibly placing a person into the trunk of a car was not the ‘ordinary course of things’ associated with the use of a vehicle. Even if the striking of Mr. Martin’s head on the trunk of his car involved the use of the car, that use was merely ancillary to the assaultive act of attempting to force him into the trunk which directly caused injury. Of significance to this case, she said:²⁰

I reach a different conclusion, however, concerning the alleged injury to Mr. Martin's right foot.

Based on the evidence before the motion judge, I think there is a strong argument that the injury sustained by Mr. Martin to his right foot was directly caused by the use or operation of his vehicle, that is, by an "accident" within the meaning of s. 2(1) of the 1996 Schedule. In contrast to Mr. Martin's other injuries, the direct cause of the injury to Mr. Martin's right foot was the operation of the car itself.

On this record, it is unclear whether the mishap with Mr. Martin's foot was inadvertent or deliberate. If deliberate, it may be open to Certas to argue that this injury also constituted an intervening, intentional tort that falls outside the reach of the "ordinary course of things" associated with the use or operation of a vehicle. It may also be open to Certas to contend that the renewed theft of Mr. Martin's vehicle in the second parking lot was itself an intervening event that broke the chain of causation between the use or operation of the vehicle and the foot injury. (Emphasis added).

There is, therefore, at the very least, a genuine issue requiring a trial to determine whether the injury to Mr. Martin's right foot was sustained in an "accident", in the sense contemplated by s. 2(1) of the 1996 Schedule. In respect of that injury and the SABs associated with it, I conclude [on this issue] that Certas is not entitled to summary judgment.

With respect, according to the test, I believe it must be an intervening act or acts that result in injuries and not motives or intent to use or operate a vehicle. If the use or operation of a vehicle directly causes impairment, an “accident” has occurred.

It does not appear that the decision of Vijeyekumar v. State Farm Mutual Automobile Insurance Company,²¹ a 1999 case involving an intentional act, was referred to in this obiter dictum comment in Martin about the foot injury by Cronk J.A., regarding the meaning of “accident” in s. 2(1) of the Schedule. In Vijeyekumar, the deceased Insured committed suicide having left the car running in a closed garage. His widow claimed death benefits which were payable if there was an “accident”, as defined in s. 2(1). Section 2(1) then had the words “directly or indirectly”, but otherwise it was the same as the present section. The Insurer argued that a deliberate act such as suicide was not included in the meaning of the word “incident”, and that the deceased’s death did not result from the “use or operation” of his car.

Laskin J.A. adopted the reasoning of the trial judge Molloy J. as follows:

(i) A statutory definition may expand the usual meaning of a word. Here the drafters …chose to define “accident” by using the broader and more neutral term “incident”. The word incident means an event or occurrence and can include…intentional events or occurrences. In interpreting… the court should assume that the legislature intended what it said…especially so in a definition section.

(vi) Interpreting the word “incident” to have the same meaning as “accident”, which is State Farm’s contention, would offend the presumption against tautology. Every word…is to have meaning… State Farm’s interpretation would render the word “incident” meaningless or redundant. The decision of Borins J. in Young v. Donway Ford Sales Ltd., (1995) 1995 CanLII 7245 (ON CTGD), 26 O.R. (3rd), 607…in which he held that the words “incident” and “accident” had the same meaning, should be distinguished. As Borins J. pointed out that was a “rare example” where different words should be interpreted as having the same meaning because of the rest of the wording in the section.

Laskin J.A. goes on to conclude that the use or operation of the car by leaving the car running with the doors closed in the garage, and piping the carbon monoxide into the car, directly caused the deceased’s death.

In the case at bar, using the test in Martin above, there were no separate intervening act or acts to the act of Mr. Blocker’s driving of the Chevrolet, even if the collision was deliberate; Mr. Blocker was driving—operating or using a car which directly caused injuries to the Applicant. The test used by Cronk J.A. in Martin spoke of acts, not motives or intentions.

Alternatively, using the definition of “direct cause” in Chisholm, the use or operation of the vehicle, even if deliberate, directly caused the impairment. The evidence before me indicates Mr. Blocker deliberately, with the complicity of the occupants, drove the vehicle for the specific purpose that it would crash into another vehicle, and thus, there were no intervening act or acts. There was no “intervention of any force started and working actively from a new and independent source.”

The Insured relies upon Agyemang and Pafco Insurance Company,²² which relies upon the Appeal decision Economical Mutual Insurance Company and J.E.²³ In J.E., Delegate Draper held the ordinary meaning of accident as a non-intentional act was preserved despite the use of the words, “accident means”. The Insurer also relied upon the Hearing Arbitrator’s decision in Madinei and Alizadeh-Ebadi and TD General Insurance Company,²⁴ in which the Arbitrator, who also relied upon J.E., stated, “the Applicants have the onus of proving on a balance of probabilities that the collision was an accident as defined in s. 2(1) of the Schedule. To fit the definition the collision must be accidental and not staged.”

The Insurer relies upon two appeal decisions of Delegate Evans, Elmi and State Farm Mutual Automobile Insurance Company²⁵ and Madinei and Alizadeh-Ebadi and TD General Insurance Company.²⁶ Both cases involved allegations of staged collisions. The Delegate in Elmi rejected the proposition that there can be a collision but no “accident”.

In Madinei and Alizadeh-Ebadi, Delegate Evans stated:

…J.E. is an old case, and the principles in it were expressly overruled by the Court of Appeal in Vijeyekumar v. State Farm Mutual Automobile Insurance Company.

Accordingly, pursuant to Vijeyekumar, the previous common law history is not relevant in light of the statutory definition, which in turn does not distinguish between intentional and non-intentional incidents now, and so, contrary to what was said in J.E., and the cases which follow it, an incident does not have to be “accidental” to meet the definition of “accident” under the SABS.

As for policy grounds to find otherwise, s. 53 of the 2010 SABS, [s. 48, 1996 SABS], provides that an insurer may terminate the payment of benefits to… an insured person if the person has willfully misrepresented material facts with respect to the application for benefits… s.53… is a powerful anti-fraud tool: it is intended to impose a penalty beyond repayment in cases of willful material misrepresentation, the penalty being denial of benefits, even if no benefits were ever paid.

Conclusion

Having reviewed the facts and the law, I conclude that the Applicant was involved in an accident as defined by the Schedule.

EXPENSES:

Should the parties be unable to agree on the expenses of this matter they may request an appointment before me to determine the expenses in accordance with Rules 75-79 of the Dispute Resolution Practice Code.

July 24, 2017

Morris J. Winer, Q. C. Arbitrator

Date

Financial Services Commission of Ontario