Peter Dziuba v. TD General Insurance Company, 2017 ONFSCDRS 242

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 242

FSCO A15-002421

BETWEEN:

PETER DZIUBA

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Kimberly Parish

Heard:

In person at ADR Chambers on July 24, 2017, and by written submissions completed on July 26, 2017

Appearances:

Mr. Peter Dziuba participated

Mr. Stefan Juzkiw for Mr. Peter Dziuba

Mr. Jason Anand and Ms. Aida Gregorian for TD General Insurance Company

Issues:

The Applicant, Mr. Peter Dziuba (“Mr. Dziuba”), claimed he was injured in a motor vehicle accident on August 17, 2014 and sought accident benefits from TD General Insurance Company (“TD General”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Dziuba, 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 there a motor vehicle accident within the meaning of the Schedule?
Is either party entitled to its expenses of the Preliminary Issue Hearing?

Result:

There was no “accident” within the meaning of the Schedule.
No expenses were requested with respect to this hearing. 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 within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

On August 17, 2014, Mr. Dziuba was riding his bicycle northbound on Neyagawa Blvd., south of Burnhamthorpe Rd. in Oakville. It is Mr. Dziuba’s position that a white sport utility vehicle (“SUV”) was driving in the paved lane and then made a wide turn and impacted Mr. Dziuba on his bicycle. This caused Mr. Dziuba to run off the road onto the gravel shoulder, and Mr. Dziuba sustained injuries as a result.

The Insurer’s position is that the incident between Mr. Dziuba and the SUV does not constitute an “accident”. The Insurer submitted there was no physical contact between the SUV and Mr. Dziuba. The police report of the incident on August 17, 2014 noted no contact between them. However, there was a verbal and physical altercation between Mr. Dziuba and the SUV driver. The Insurer stated any injuries sustained by Mr. Dziuba were a result of this altercation, and not a motor vehicle accident as defined by the Schedule.

Testimony of Mr. Dziuba

In the late afternoon of August 17, 2014, Mr. Dziuba was on a 2-hour round-trip on his Tour de France replica bicycle. He was wearing a helmet, protective lens eyeglasses, protective shoes (which snap into the pedals of the bicycle), protective gloves, and reflective cycling clothes. There was a flashing light on both the front and back of the bicycle. Mr. Dziuba stated he was riding northbound on Neyagawa Blvd. and traffic was minimal. There was no paved shoulder, only gravel. Mr. Dziuba had a Garmin GPS attached to his bicycle and a heart-rate monitor attached to himself.

Mr. Dziuba was riding in the centre lane at the intersection of Burnhamthorpe Rd. and Neyagawa Blvd. when an SUV driving in the left lane came close to him when it cut across the centre lane to get to the right turn lane. Mr. Dziuba moved to the right while still on his bicycle and yelled at the driver of the SUV for almost hitting him. Mr. Dziuba tried to get around the SUV, but the SUV started reversing. Mr. Dziuba’s shoes were clipped onto the bicycle; he grabbed the rear windshield wiper of the SUV in an attempt to get around it. The SUV allegedly hit Mr. Dziuba’s right leg and right shoulder. To get away from the SUV, Mr. Dziuba rode quickly northbound on Neyagawa Blvd. Mr. Dziuba stated there were drainage ditches at the side of the road, and the SUV, driving in the left lane, caught up to him and ran him off the road into a ditch. Mr. Dziuba stated this was when the second impact with the SUV occurred. Mr. Dziuba stated the SUV’s passenger side mirror hit his left shoulder and the back of his neck, and the bicycle chain went into his right leg when the bicycle hit the ground.

Mr. Dziuba referred to GPS images of the incident and his travelled path by bicycle, which he had downloaded from his Garmin unit.² Mr. Dziuba had drawn illustrations on these images depicting how the impacts with the SUV occurred.

Mr. Dziuba stated the police were called by the SUV driver, and he was not allowed to leave the scene to seek medical attention until he gave a statement to the police. Mr. Dziuba stated he was sitting at the side of the road on the gravel and gave police a statement explaining what happened; he felt dizzy and hot. Mr. Dziuba stated the police officer told him he could add more details to the report at a later date, and to report what he could recall at that time. Mr. Dziuba then rode his damaged bicycle home and went to Halton Healthcare Services Emergency Department to seek treatment for his injuries. He sustained cuts to both legs and an abrasion on his forehead, and a tetanus shot was administered for cuts to his legs from the bicycle chain.

Mr. Dziuba stated he went to the police station the following day to provide further information and to see a copy of the police report. Mr. Dziuba was advised by the police that he could not add to the report and he could obtain a copy of the report through a Freedom of Information request. Mr. Dziuba stated he had to obtain a court order to obtain a copy of the police officer’s notes and the Halton Regional Police Report of August 17, 2014 (“police report”).³ Mr. Dziuba testified the police incorrectly noted the SUV was in the right lane, and the report did not note all of his injuries.

Mr. Dziuba stated as a result of the accident, his right glove and shoe were torn, the titanium rail on his bicycle seat was broken, the lenses of his cycling glasses were scratched, and his helmet was damaged. Pictures were provided at the hearing which showed the damage to these items.⁴

Cross-examination of Mr. Dziuba

The Insurer’s counsel, Mr. Anand, provided Mr. Dziuba with a copy of his signed statement given to the police (“signed statement”) on August 17, 2014. Mr. Anand asked Mr. Dziuba “Would it surprise you that in your signed statement to the police there is no mention of an impact from a vehicle?” This question was put to Mr. Dziuba three times, and Mr. Dziuba never provided an answer to this question. Mr. Anand put to Mr. Dziuba that the only reference within the signed statement to an SUV coming into contact with him was on page 1.⁵ Mr. Dziuba agreed with this statement, and further stated the SUV backed up into him. Mr. Anand put to Mr. Dziuba that the signed statement did not note there were two impacts. Mr. Dziuba agreed. Mr. Anand put to Mr. Dziuba that nowhere in his signed statement did it state that he was knocked into a ditch by a vehicle and did he agree? This question had to be put to Mr. Dziuba four times, and Mr. Dziuba did not provide an answer. Mr. Anand further put to Mr. Dziuba that nowhere in his signed statement did it mention that Mr. Dziuba fell into a ditch and did he agree? This question was put to Mr. Dziuba three times; he stated he did not remember falling into a ditch, he remembered getting out of a ditch.

Mr. Anand referred Mr. Dziuba to a copy of the police report, which stated “The cyclist does admit during his interview that the SUV did not make contact with him when he was moved off the road but stated he felt he would have, if he didn’t comply by pulling over and stopping.”⁶ Mr. Dziuba responded he had no opportunity to dispute what the police officer noted in the police report. Mr. Dziuba stated he provided an e-mail to his prior counsel dated September 17, 2014,⁷ which included GPS data plots from his Garmin unit showing his bicycle’s position and travel pattern. The e-mail contained further details of the incident of August 17, 2014 not previously provided in the police report. Mr. Dziuba stated that this information was forwarded to Police Officer Fretz, who authored the police report following the incident. A Supplementary Occurrence Report dated February 17, 2015⁸ was issued, but Mr. Dziuba stated he never had a subsequent conversation with Police Office Fretz.

Testimony of MN - Driver of SUV

Mr. Anand requested that the driver of the SUV be anonymized as there is another legal proceeding, and this decision will be published prior to the conclusion of the other proceeding. I ruled that this witness would be anonymized herein and within the transcript for this Hearing.

MN testified he was driving home in his SUV, northbound on Neyagawa Blvd. He was approaching a set of lights at Burnhamthorpe Rd. when he saw a cyclist (Mr. Dziuba) swerving and looking down at his feet while riding his bicycle. MN slowed down to allow Mr. Dziuba to continue through the intersection. Mr. Dziuba motioned MN to pass him. MN sped up as he drove past Mr. Dziuba and Mr. Dziuba swore at him. MN stated he pulled up to the intersection and drove into the right turn lane. The light turned red and he stopped. MN heard something that sounded like a hand smacking his SUV window. MN and Mr. Dziuba exchanged verbal profanities. MN turned right onto Burnhamthorpe Rd. and Mr. Dziuba continued north on Neyagawa Blvd. MN pulled over in his SUV and got out to inspect his vehicle. MN stated Mr. Dziuba had ripped off the rear wiper arm of his SUV. MN got into his SUV, and turned around to drive north on Neyagawa Blvd. He wanted to speak to Mr. Dziuba about ripping off his rear wiper. MN stated Mr. Dziuba was moving northbound on his bicycle quickly. MN testified he caught up to Mr. Dziuba and was nudging Mr. Dziuba closer to the side of the road, but his SUV did not come into contact with Mr. Dziuba. Mr. Dziuba moved off the road onto the gravel area at the side. MN testified that he told Mr. Dziuba he owed him $200.00 to replace the wiper he had ripped off of his vehicle. MN stated he telephoned the police while he was holding the handlebars of Mr. Dziuba’s bicycle to prevent Mr. Dziuba from riding into the valley. MN testified that Mr. Dziuba was waving his arms around and yelling. MN was speaking to the police through the passenger side window on his SUV’s Bluetooth system when Mr. Dziuba punched MN in the face.

The Insurer’s co-counsel, Ms. Gregorian, asked MN if he reversed his vehicle and hit Mr. Dziuba. MN stated: “No.” Ms. Gregorian asked MN if he and Mr. Dziuba had an altercation. MN stated: “Yes.” Ms. Gregorian asked MN if the police charged him with any highway traffic offence. MN stated: “No.” Ms. Gregorian asked MN if the police had noted in their report that his SUV had made contact with the cyclist. MN stated: “No.” MN confirmed no charges were laid by the police. Ms. Gregorian then asked MN if he cut into the lane where Mr. Dziuba was riding his bicycle, or cut too close to Mr. Dziuba. MN stated: “No.” MN further stated he did not see Mr. Dziuba fall off his bicycle.

Cross-examination of MN

Mr. Juzkiw put to MN if he asked Mr. Dziuba why he was swerving on his bicycle and looking at his feet? MN stated: “No.” Mr. Juzkiw asked MN to describe the altercation that took place between him and Mr. Dziuba. MN stated he was outside his vehicle holding onto Mr. Dziuba’s bicycle, which Mr. Dziuba was on. MN was speaking to the police through the passenger side window of his SUV, using the hands-free Bluetooth system. MN said the police told MN to let Mr. Dziuba go, but he said no to the police because Mr. Dziuba would ride into the valley and be gone. MN stated Mr. Dziuba is left-handed, as he punched MN in the left side of the face. MN was unable to provide a timeframe of how long before witnesses arrived at the scene. Mr. Juzkiw asked MN if at any point he cut off Mr. Dziuba. MN stated: “No.” MN stated Mr. Dziuba did not fall into the gravel.

Mr. Juzkiw put a copy of the police report before MN and asked MN if this report was an accurate account of what he had told police? MN stated the report was accurate except for the report noting the intent of Mr. Dziuba.⁹ MN stated he could not have known the intent of Mr. Dziuba. Mr. Juzkiw asked MN how he veered Mr. Dziuba off the road onto the gravel. MN stated his SUV moved to the right and Mr. Dziuba moved over to the right where the gravel was. Mr. Juzkiw asked if Mr. Dziuba was riding slowly; MN stated he guessed so. Mr. Juzkiw asked MN if he noticed any damage to Mr. Dziuba’s bicycle. MN stated: “No.” Mr. Juzkiw asked MN if he noticed if Mr. Dziuba sustained any injuries. MN stated: “No.” Lastly, Mr. Juzkiw asked MN if he ran Mr. Dziuba off the road, or if he reversed his SUV into Mr. Dziuba. MN stated: “No” in response to both.

Closing Submissions of Applicant

Mr. Juzkiw submitted that the police report noted only the rubber wiper blade was missing from the SUV rear window.¹⁰ This was inconsistent with MN’s testimony, in which MN stated the whole wiper arm was ripped off his SUV.

MN further testified that his SUV “nudged” Mr. Dziuba off the road onto the gravel area. Mr. Juzkiw submitted this meant MN either made direct contact with Mr. Dziuba’s bicycle or attempted to make contact, with intent to run Mr. Dziuba off the road.

Mr. Juzkiw further submitted that the police officer at the scene observed injuries to Mr. Dziuba.¹¹ The emergency room report (“ER report”) noted Mr. Dziuba was cut off by a car.¹²

The e-mail dated September 17, 2014 stated that Mr. Dziuba was hit by a vehicle and then run off the road into a ditch.¹³

Mr. Juzkiw submitted that MN’s testimony was not credible. The police report noted that MN telephoned the police before exiting his SUV to grab Mr. Dziuba on his bicycle. However, MN testified that he called the police on his Bluetooth after exiting his SUV. MN testified Mr. Dziuba is left-handed as he punched him with his left hand; Mr. Juzkiw submitted Mr. Dziuba is right-hand dominant. Mr. Juzkiw submitted Mr. Dziuba continues to provide a consistent story of how the motor vehicle accident occurred - that he was run off the road during MN’s use or operation of an automobile. As a direct result, Mr. Dziuba sustained injuries and damage to his bicycle.

Closing Submissions of Insurer

The Insurer submitted that Mr. Dziuba was not involved in an accident pursuant to s.3(1) of the Schedule.

It was the Insurer’s position that the testimony provided by Mr. Dziuba was not credible. Mr. Dziuba’s signed statement to the police did not support that the SUV came into contact with him, nor did it mention he fell off his bicycle after being run off the road.¹⁴ The initial police report noted that the Applicant stated that the SUV did not make contact with him when he was moved off of the road.¹⁵ The report also did not note that Mr. Dziuba fell as a result of the use or operation of a motor vehicle.

The police report noted the only contact between the SUV and Mr. Dziuba was when he grabbed the rear wiper of the SUV to avoid making contact with the rear bumper.¹⁶ Mr. Dziuba’s signed statement made no reference to any impact between him and the motor vehicle, nor to falling as a result of the motor vehicle.¹⁷

The Supplementary Occurrence Report dated February 17, 2015 noted the Police Officer remained unconvinced by the supplemental information provided by Mr. Dziuba’s September 17, 2014 e-mail, and the officer did not change his conclusion or find a motor vehicle collision occurred on August 17, 2014.¹⁸

The ER record does not note an impact between Mr. Dziuba and a motor vehicle, nor does it note Mr. Dziuba fell off his bicycle after allegedly being run off of the road.¹⁹

The Insurer relied on Amos v. Insurance Corporation of British Columbia,²⁰ which describes the two-part test (purpose and causation) for determining whether an insured was involved in accident as defined within the Schedule. The Insurer further submitted that the causation test has been modified to satisfy the strict wording within the Schedule, such that injuries must be directly caused by the use or operation of a motor vehicle to qualify as an accident, and relied on Chisholm v. State Farm Liberty Mutual Insurance Group.²¹ In Chisholm, direct cause was defined as: “The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new independent source.”

The Insurer submitted the injuries sustained by Mr. Dziuba were directly caused by a physical altercation between him and MN. Therefore, Mr. Dziuba did not satisfy the purpose test as the incident did not result from the ordinary and well-known activities to which automobiles are put.

The Insurer lastly submitted Mr. Dziuba has not put forward any compelling evidence which supports he was struck by an automobile and sustained injuries which flow from such, nor has he “provided compelling evidence to support his allegation that he was involved in an accident pursuant to the definition of the SABS, and has failed to discharge his legal burden of proving his claim.”

ANALYSIS

This case involved a substantial amount of evidence which conflicted with Mr. Dziuba’s testimony at the hearing.

Mr. Dziuba’s examination-in-chief was very detailed. He provided extensive detail regarding how he sustained his injuries, damage to his clothing, accessories, and his bicycle. Further details were provided regarding the route he travelled with his bicycle, as recorded on his GPS.

On cross-examination, though, multiple questions were put to Mr. Dziuba three to four times. Mr. Anand asked Mr. Dziuba if it would surprise him that in his signed statement to the police there was no mention of an impact from a vehicle. This question was put to Mr. Dziuba three times and no response was provided. Mr. Anand put to Mr. Dziuba four times that nowhere in his signed statement did it state he was knocked into a ditch by a vehicle; no answer was provided by Mr. Dziuba. Mr. Anand further put to Mr. Dziuba three times that nowhere in his signed statement did it mention Mr. Dziuba fell into a ditch; Mr. Dziuba stated he did not remember falling into a ditch, he remembered getting out of a ditch. These questions were all straightforward.

The testimonies of Mr. Dziuba and MN confirm there was a verbal and physical altercation on August 17, 2014. However, their details differed, specifically with respect to whether there was an impact with the vehicle, injuries sustained by Mr. Dziuba, damage to Mr. Dziuba’s property, and who was the aggressor in the altercation. I afford little weight to the differences in the details. The police report noted “There were slight variations of the stories each time both parties explained it to the police.”²² The information does not conclude whether the SUV impacted Mr. Dziuba.

The police report noted “The cyclist does admit during his interview that the SUV did not make contact with him when he was moved off the road but stated he felt he would have, if he didn’t comply by pulling over and stopping.”²³ The police report made no note that the SUV impacted Mr. Dziuba, only that Mr. Dziuba grabbed the rear wiper. It did note that both individuals had minor injuries due to the physical altercation but they did not require medical attention. The police report concluded that no charges were laid and the “physical altercation can be cleared otherwise along with the property damage.”²⁴ The Supplementary Occurrence Report²⁵ of February 17, 2015 issued by Police Officer Fretz concluded the GPS data could not be authenticated, and did not change his conclusion noted in his initial report - that there was no impact between the SUV and Mr. Dziuba.

The ER report noted Mr. Dziuba was a cyclist cut-off by a car and that the driver got out and knocked Mr. Dziuba off his bicycle.

I find the information in the initial police report and the ER report to be the best evidence. Police Office Fretz was a neutral party called to the scene on August 17, 2014, and took statements at the scene from both Mr. Dziuba and MN. Mr. Dziuba’s testimony conflicted on key points with the police report and the ER report. Compelling reasons were not provided by Mr. Dziuba as to why information had not been noted in these reports, and Mr. Dziuba did not answer questions put to him in cross-examination in a straightforward manner.

I also do not find the GPS data provided by Mr. Dziuba can be relied on to conclude that an impact between the SUV and Mr. Dziuba occurred. The GPS data only logged the travel of Mr. Dziuba’s bicycle. The GPS unit could not log data from the SUV and the GPS data had not been authenticated (it was uploaded from the GPS unit by Mr. Dziuba).

I am unable to conclude that the SUV impacted Mr. Dziuba. Therefore, I am unable to conclude that the injuries sustained by Mr. Dziuba were the result of the use or operation of an automobile, and not a physical altercation. Once MN exited the SUV, the chain of causation was broken from his use of the SUV.

Although MN testified that he “nudged” Mr. Dziuba to the side of the road to try and get him to pull over, the physical altercation between the SUV driver and Mr. Dziuba followed this. The physical altercation was the intervening act which broke “the train of events” involving the use of the motor vehicle, per Chisholm. Therefore, I find the SUV is not the direct cause of the injuries sustained by Mr. Dziuba.

EXPENSES:

No expenses were requested with respect to this hearing. 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 within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 18, 2017

Kimberly Parish Arbitrator

Date