Released Date: 12/11/2020
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Maxine Dawkins
Applicant
And
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Yianniko Kozoronis, Counsel
For the Respondent:
Ramdeep Pandher, Counsel Peggy Moore, Adjuster
Court Reporter: Emily Sauve
HEARD: By Video Conference
OVERVIEW:
1Maxine Dawkins (the “applicant”) claims to have been injured in an automobile accident on December 27, 2018. She applied for accident benefits to TD General Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).1
2A case conference was held, and the parties were unable to resolve the issues in dispute. The matter proceeded to a preliminary issue hearing, which took place by video conference on October 26, 2020. I heard evidence from the applicant, while the respondent called Daliborka Milinovic (D.M.), the driver of one of the other vehicles involved in the collision.
ISSUE IN DISPUTE:
3I have been asked to decide the following preliminary issue:
i. Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule?
RESULT:
4For the reasons that follow, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule. More specifically, I find that the applicant was not in the vehicle when the accident occurred. As a result, she is not entitled to claim accident benefits under the Schedule.
ANALYSIS:
5Section 3(1) of the Schedule provides the following definition of an “accident”:
“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, denture, hearing aid, prosthesis or other medical or dental device.
6The applicant bears the onus of proving on a balance of probabilities that she was involved in an accident within the meaning of the Schedule.
7The applicant contends that, on December 27, 2018, she was the passenger in the front seat of a vehicle driven by her friend Akeem Pope (“A.P.”). The backseat passengers included Destiny Homanchuk (D.H.) and her two children, then two-and five-years-old. The purpose of their journey on that evening was to go pick up food. The applicant maintains that, on their way home from running their errand, they were involved in an accident and, as a result, she sustained injuries.
8The respondent argues that the applicant is not credible, and that the incident did not happen as reported. Significantly, it maintains that the applicant was not a passenger in the vehicle when the accident occurred. It argues that this is supported by the many inconsistencies in the Examinations Under Oaths (EUOs) of the applicant, A.P and D.H., along with other evidence. Further, it argues that a negative inference should be drawn from A.P.’s failure to testify at the hearing even though the applicant summonsed him. Further, the applicant failed to call any witnesses on her behalf to support that she was in the vehicle when the accident occurred. For the following reasons, I agree with the respondent and find that the applicant was not in the vehicle when the accident occurred.
9I have drawn a negative inference from the fact that A.P. was summonsed by the applicant to testify at the hearing yet he did not attend. No explanation was provided by the applicant for his absence. In addition, the applicant did not summons D.H. (the other occupant in the vehicle) or the police officer who attended the scene of the accident as witnesses. In my opinion, this was a mistake. Since credibility is at the core of this dispute, corroborating evidence is key.
10The respondent submitted the Tribunal’s decision in R.I. & K.C. v. Certas2 in support of its position that a negative inference should be drawn because of the applicant’s failure to call important witnesses. This decision discussed the Financial Services Commission of Ontario’s (“FSCO”) decision in Nguyen and State Farm3, which involved a similar position by the insurer that the insured was not involved in an accident. In that decision, the arbitrator drew a negative inference from the insured’s failure to call important witnesses. The arbitrator stated that, if a witness with knowledge of the facts who would be assumed to be willing to assist a party is not called to testify, a negative inference should be drawn in the absence of an explanation for the non-attendance. While I am not bound by FSCO decisions, as discussed in R.I. & K.C. v. Certas, I find the principle highlighted by the arbitrator with respect to a party’s failure to call important witnesses persuasive.
11In my view, A.P. and D.H. would have valuable first-hand knowledge about the incident and could have been helpful in corroborating the applicant’s version of events or clarifying inconsistencies. Instead, the absence of these witnesses without explanation raises suspicion that they did not testify because their testimony would not be credible. The respondent submitted the EUOs of A.P. and D.H., which contained numerous references to the facts surrounding the accident that conflicted with the applicant’s version of events. I find that these records support the respondent’s position that A.P. and D.H. did not participate in the hearing because their testimony would not have been credible. Consequently, I draw a negative inference as I do not find that A.P. or D.H. would have been helpful in supporting the applicant’s case that she was in the vehicle when the accident occurred.
12Further, I find the applicant’s testimony inconsistent with her EUO, the EUOs of A.P. and D.H., as well as the other evidence submitted at the hearing. The following are examples of these inconsistencies.
13The applicant’s statements at her EUO and testimony at the hearing with respect to how the accident happened were at odds. In her EUO, the applicant stated that the vehicle she was travelling in was turning at a light and t-boned the passenger side of the other vehicle driving straight. The applicant’s description of the accident in her EUO was inconsistent with that of the other individuals involved in the accident. For example, in the EUOs of A.P. and D.H., as well as in the written statement of D.M., each stated that it was D.M. who made the left hand turn at the lights resulting in the collision with A.P.’s vehicle. In addition, they all reported that there was a collision with a third-party vehicle. The applicant’s testimony at the hearing regarding how the accident happened changed from what she reported at her EUO to mirror the other witnesses’ version of events. In addition, at the hearing the applicant mentioned for the first time that the vehicle she was travelling in made a second impact with a third vehicle.
14The applicant’s chronology of the events leading up to the accident in her EUO and her testimony were reversed and conflicted with the statements of A.P. and D.H. In her EUO, the applicant stated that they had gone grocery shopping at No Frills prior to picking up food at Tropical Joes at the Albion Mall. At the hearing, the applicant testified that they went to Tropical Joes first to pick up food and then stopped at No Frills on the way home prior to the accident. The applicant did not recall who went into No Frills and stated that she sat in the car. In their EUOs, both A.P. and D.H. stated that the whole purpose of the trip was to assist the applicant in picking up food and neither mentioned stopping at No Frills on that date. Further, in his EUO A.P. stated that they went to a restaurant near the Woodbine racetrack. The respondent highlighted that the Woodbine racetrack and the Albion Mall are 15 kilometers away from each other. A.P. did not testify at the hearing to clarify, nor was a reasonable explanation provided by the applicant for this discrepancy.
15In her EUO and testimony, the applicant stated that, following the collision, everyone got out of the vehicle and waited for approximately 45 minutes for emergency personnel to arrive. She reported that she spoke with one of the police officers for five minutes and that paramedics took her blood pressure. This conflicted with the EUOs of both A.P. and D.H. In his EUO, A.P. first stated that he and the applicant were checked out by paramedics. However, he was asked again if the applicant was examined by paramedics and he stated “no, I think she just went home – she left before – she wasn’t checked out by nobody.” A.P. was asked if he communicated to police that the applicant was an occupant in the vehicle when the accident occurred, and he said “yes.” While A.P. reported that the applicant was an occupant in the vehicle, I find his version of events post-accident conflicts with the applicant’s statement that she was there when the police and ambulance arrived and that she talked to police and was checked out by the paramedics. Statements made by D.H. was also inconsistent with the applicant’s evidence as she stated that it took 8 minutes for emergency services to arrive and that the applicant left prior to them arriving because she did not want to make a statement.
16Of significance, the applicant is not listed as an occupant of the vehicle driven by A.P. on the police motor vehicle accident report (“police mva report”), nor is she identified at all in the police officer’s notes. Further, no ambulance call report was submitted to confirm the applicant’s version of events. The applicant submits that the police mva report was flawed as it did not mention whether those involved in the accident were taken to the hospital. Further, the police officer’s notes were redacted and, therefore, she argued, information is missing and does not prove that she was not in the vehicle. The respondent submits that the applicant could have made efforts to request the unredacted police notes and could have summonsed the police officer to testify at the hearing, but she did not. Ultimately, the onus is on the applicant to prove that she was involved in an accident. Therefore, I agree that, if there were records or witnesses that could have assisted the applicant in proving that she was involved in an accident, it was her onus to produce them.
17In addition, D.M., the driver of the vehicle that hit A.P.’s vehicle, prepared a written statement and testified at the hearing that she saw A.P. as his vehicle came towards hers. According to her, she did not see a passenger in the front seat of the vehicle. D.M. testified that, following the accident, she sat in her vehicle and did not get out until emergency personnel arrived. D.M. acknowledged that it was dark out and the other two vehicles involved in the accident were behind her vehicle, so she did not have a clear view of all of the occupants in each vehicle. Moreover, her husband, who came to the scene 15 minutes following the accident, communicated to her who the other parties involved in the accident were. D.M.’s husband advised her that there was a woman and two kids in a tow truck from A.P.’s vehicle. The applicant argues that D.M.’s evidence regarding the occupants in the other vehicles is hearsay and cannot be trusted as the information came from D.M.’s husband, not her. In my view, even if I were to disregard D.M.’s evidence pertaining to the information communicated to her by her husband, this does not detract from D.M.’s evidence that she did not see a person in the front passenger seat of A.P.’s vehicle before the accident occurred.
18Also of importance was the applicant’s statement in her EUO that, after having her blood pressure taken by paramedics, she called a cab and took D.H.’s two children back to her house and watched them for three hours until A.P. and D.H. picked them up. This conflicted with both A.P. and D.H.’s EUOs, in which they stated that the two kids stayed with A.P. in the tow truck and that he later met up with D.H. at the hospital. At the hearing, the applicant testified that she was mistaken in her EUO as “it would appear that she did not take the kids home with her in the cab following the accident.” She indicated that she must have confused this with another date as she had looked after D.H.’s kids on other occasions prior to the accident.
19In addition, the only medical evidence submitted by the applicant to support that she was injured in an accident was a hospital emergency record dated December 30, 2018. This record states “mva 2 days ago – Friday – t-boned – now has abdominal pain and bruising.” Under description it notes “bruise noted across whole abdomen – looks like from seatbelt.” Significantly, the hospital record notes the incorrect accident date. The accident had occurred three days prior to the applicant’s hospital visit not two and the accident was on a Thursday not a Friday. Considering the other evidence, I find the fact that that the applicant reported the incorrect accident date to the hospital staff important. The applicant explained that she got the date wrong because she was in pain and was confused. In my opinion, if this were the only discrepancy, I would find this explanation believable. However, I find this is one of many factual errors and for this reason I do not give the hospital record much weight.
20The respondent also relied on this Tribunal’s decision in R.I & K.C. v. Certas, which discussed FSCO’s decision in Tran and Vu v. State Farm.4 I had previously found this decision helpful in determining the factors to consider when assessing an individual’s credibility. These factors include an individual’s demeanor, ability and opportunity to observe, power of recollection, interest, bias, prejudice, sincerity, inconsistency and the reasonableness of their testimony when considered with all the evidence. The decision highlights, at page 7, how the truth and credibility of a witnesses’ story is to be assessed:
A witnesses’ story must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions.
21Similar to R.I. & K.C., I find that the applicant is a bad historian and the many inconsistencies were not explained or clarified in a reasonable manner. The applicant argued that the decisions noted in the joint document brief are not relevant to the present case as the three decisions all involved staged accidents.5 While I agree with the applicant that the three decisions involved staged accidents, I do not need to make a finding that this was a staged accident to make a determination that the applicant was not in the vehicle when the accident occurred. Further, I find the decisions relevant as they discuss how to assess an individual’s credibility.
22The applicant argued that her EUO was taken almost 14 months post-accident. Therefore, she maintains, it is not a surprise that her recollection of events was less than perfect by the time it was taken. Further, the hospital record supports that she was injured in the accident as it notes bruising to her abdomen, an injury consistent with a seatbelt. Moreover, the applicant submits that, if she were not in the front passenger seat then, D.H. would not have sat in the middle of the back seat in-between her two children’s car seats. In addition, she contends that she had no reason to lie about being an occupant in the vehicle.
23I do not find the above factors prove that the applicant was in the vehicle when the accident occurred. Based on all the evidence before me, I find that she was not in the vehicle. While I can accept that an individual’s memory and ability to recall events is not perfect and can be flawed, considering the evidence, I find the number and nature of the inconsistencies more than just coincidence. What I find most significant was the applicant’s statement in her EUO that, following the accident, she took D.H.’s children in a cab without proper car seats back to her house and looked after them for three hours, something she later acknowledged as false. In my view, this is not the type of thing that one would confuse. I find that these discrepancies, combined with the fact that the applicant is not listed in the motor vehicle accident report or police notes, persuasive evidence that she was not in the vehicle when the accident occurred. Moreover, I find that there was little incentive for D.M. to testify that she did not see a passenger in the front seat of the vehicle prior to the collision. I also agree with the respondent that the applicant had a motive for being dishonest about being an occupant in the vehicle, as in the six months prior to the accident she was unemployed and was receiving Ontario Works. In her EUO, she provided information about her monthly expenses which unfortunately was not covered by the amount of money she was receiving each month. Therefore, I find the applicant had a financial motivation in reporting that she was in an accident as she could claim accident benefits.
24The applicant’s submission that it does not make sense that D.H. sat in the middle backseat in-between the two car seats when the front passenger seat was unoccupied does not prove that she was in the vehicle. In my view, I also do not find it that uncommon for a parent to sit in the backseat of a vehicle with two children aged two and five even if the front passenger seat is empty. In my opinion, this fact alone does not convince me that the applicant was in the vehicle when the accident occurred.
25During the respondent’s cross-examination of the applicant, it highlighted various records that the applicant could have produced to prove that she was in the vehicle. For example, she could have submitted receipts from the restaurant they visited, or cell phone records confirming that she called a cab following the accident. Furthermore, as already noted she could have requested the unredacted police notes and summonsed D.H. and the police officer to testify. However, she did not. Based upon the evidence before me, the applicant has not proven on a balance of probabilities that she was an occupant in the vehicle when the accident occurred.
26I find that the applicant was not involved in an “accident” pursuant to section 3(1) of the Schedule
ORDER
27For all the above reasons, I order as follows:
(i) The applicant was not in an “accident” as defined in section 3(1) of the Schedule.
(ii) The applicant’s application to the Tribunal disputing her entitlement to accident benefits is dismissed.
Released: December 11, 2020
Rebecca Hines
Adjudicator
Footnotes
- O. Reg. 34/10.
- R.I & K.C. v. Certas Home and Auto Insurance Company, 2019 CanLII 130358 (ONLAT).
- Nguyen and State Farm Mutual Insurance Company, A13-012623 (FSCO).
- Tran and Vu v. State Farm Insurance Company (FSCO A13-000958 and A13-001548) 2015, pages 6 & 7.
- Usengbuwa v. Personal Insurance Co of Canada, 2016 CarswellOnt 7515; RI & KC v. Certas already cited; and C.I. v. Certas Direct Insurance Company, 2020 CanLII 12723 (ON LAT).