Z.J. vs. Wawanesa Mutual Insurance Company
Released Date: February 12, 2020
File Number: 18-008967/AABS
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:
Z.J.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Melody Maleki-Yazdi
APPEARANCES:
For the Applicant:
Z.J., Applicant
Sam Elbassiouni, Paralegal
For the Respondent:
Peter Kazdan, Counsel
Interpreter:
Jackleen Hanna (Arabic)
Court Reporter:
Sarah Cooper
HEARD: In-Person:
December 10, 11, 12 and 13, 2019
OVERVIEW
1Z.J. (the “applicant”) alleges that he was involved in an automobile accident on June 14, 2018. The respondent claims that, pursuant to s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”), the applicant was not involved in an accident and that the collision was staged. The parties have sought a preliminary issue determination on whether the applicant was involved in an accident for the purposes of entitlement to statutory accident benefits.
2The applicant denies that the collision was staged. He claims that he was driving on [street A] when a third party BMW vehicle (owned and operated by M.A.) was in front and making a left-hand turn onto [avenue B] when the applicant’s BMW (owned and operated by the applicant) collided with the front-end of M.A.’s BMW.
3I heard evidence from the following individuals: the applicant, Mr. Kyle Elliot (representative of Bell Canada); Mr. Stefan Nasner (investigator at Aviva Insurance); Ms. Sue Collings (senior investigator for the respondent who conducted an investigation of this claim) and Mr. Michael Jenkins (the respondent’s engineering expert in motor vehicle collision investigation and reconstruction).
PRELIMINARY ISSUE
4The following preliminary issue is in dispute for this hearing:
i. Does the incident which occurred on June 14, 2018 meet the definition of “accident” pursuant to s. 3(1) of the Schedule?
RESULT
5I find that the applicant was not involved in an accident as defined in s. 3(1) of the Schedule and, as a result, is not entitled to any statutory accident benefits. The applicant’s appeal is dismissed.
ANALYSIS
6In order to claim accident benefits from the respondent, the applicant must prove on a balance of probabilities that he was involved in an accident as defined in s. 3(1) of the Schedule. The definition of “accident” in s. 3(1) of the Schedule means an incident in which the use or operation of an automobile directly causes an impairment.
7I agree with the adjudicator’s reasoning in M.D. v. Intact Insurance Company,2 that the purpose of a staged collision is for the participant to profit from the insurance company and that a definition of “accident” that allows an individual to profit from the insurance company because of their intentional act is contrary to public policy and the Insurance Act, RSO 1990, c I.8.
8The respondent submits that the collision the applicant was involved in was staged. The applicant claims that the accident was not staged, that the respondent has acted unreasonably by engaging in inappropriate mishandling of the applicant’s claim and used extreme measures to frame the applicant as a person who is a scam artist. The applicant further claims that the respondent’s investigator, Ms. Collings, has a personal vendetta against the applicant.
9In support of the respondent’s allegation that the collision was staged, it relies on the following:
i. The applicant’s evidence is inconsistent with the accident reconstruction report of Mr. Jenkins;
ii. The applicant’s evidence is inconsistent with the surveillance videos;
iii. The applicant’s evidence is inconsistent with his cell phone records; and
iv. The applicant’s failure to call any other witnesses to refute the allegation that the collision was staged.
10I have not listed all of the inconsistencies in the applicant’s evidence. The inconsistencies I have listed raise genuine issues about how reliable the applicant’s evidence is overall.
Background: the applicant’s account of the collision on June 14, 2018
11At the time of the examination under oath (“EUO”) on July 27, 2018 (approximately six weeks after the collision), the applicant described the events before, during and after the collision as follows:
i. The applicant left a lounge, he refers to as “[…]” located near [road C] and [avenue D] and was driving home to [city A]. While he was driving north on [street E] and close to [avenue F], he received a call on his cell phone from a bartender at the lounge saying that the applicant had left his briefcase there.
ii. The applicant decided to drive back to the lounge. He made a right onto one street before [avenue F] because he wanted to go south to go back to [avenue D].
iii. The applicant was driving south on [street A]. At the intersection of [avenue B] and [street A], he collided with the BMW owned by M.A. that was making a sudden left turn in front of him. There was only one impact.
iv. After the collision, the applicant got into a verbal argument with M.A. and they also exchanged information.
v. He contacted his friend named “Mike” (last name unknown), to see if he could arrange a tow for him. It took Mike 15 to 20 minutes to arrive at the scene.
vi. At around the same time as when Mike arrived at the scene, two other tow trucks also arrived. One took M.A.’s BMW and the other drove off.
vii. The applicant’s car got towed by Mike from the scene directly to the Collision Reporting Centre (“CRC”). The applicant completed a collision report.
viii. Afterwards, Mike did not want to drive the applicant to [city A] so he took the applicant’s vehicle from inside the CRC out to the street and dropped the vehicle. The applicant called someone to get him a tow truck. [A towing company] arrived and towed the applicant’s vehicle to […], an automotive shop.
12During his testimony, the applicant explained that he refers to the lounge as “[…]” because the owner’s name is [a man’s name]. The respondent’s counsel wrote to the applicant’s representative to inform him that there is no bar called […] at [road C] and [avenue D], and was told that the applicant was at a place called [a sports bar].
13The respondent indicated that there are some discrepancies between the applicant’s answers at the EUO and his answers during the testimony in this hearing. I find that these discrepancies call the applicant’s reliability into question. These discrepancies include:
i. During the EUO, the applicant stated that he contacted his friend Mike from the scene. During his testimony, the applicant said that he called Mike from the scene, but that he did not answer the phone and that Mike called him back after that;
ii. During the EUO, when asked by the respondent whether he called anyone, he stated that he called Mike from the scene. During his testimony, he stated that he may have called his children or his wife from the scene, but that the only person he called to help him was Mike;
iii. During the EUO, he stated that he called someone to get him a tow truck. During his testimony, he stated that he asked Mike to call someone to get him a tow truck; and
iv. During the EUO, he stated that at around the same time as when Mike showed up to the scene, two other tow trucks also arrived. During his testimony, the applicant said that the two other tow trucks showed up right away and that Mike showed up between 10 to 20 minutes later.
Inconsistencies with Mr. Jenkins’ report
14The applicant’s claim that his BMW had only one impact with M.A.’s BMW is inconsistent with the report of Mr. Michael Jenkins assessing the two-vehicle collision.
15As the respondent’s engineering expert in motor vehicle collision investigation and reconstruction, Mr. Jenkins inspected the applicant’s vehicle. He was unable to inspect M.A.’s vehicle because he did not cooperate and abandoned his claim with his insurance company. Mr. Jenkins based his opinion in the report on the applicant’s collision report and supplementary statement form; MA’s collision report; photographs of both vehicles taken at the Collision Reporting Centre; three surveillance videos; the applicant’s vehicle’s appraisal estimate from [an appraisal company]; the applicant’s vehicle’s fault code memory list and service history; and the summary of the EUO.
16Mr. Jenkins’ opinion was that the way the vehicles came into contact according to the simulation was consistent with the damage observed. The applicant’s vehicle hit the front right corner of M.A.’s vehicle. He opined that simulation of the collision sequence confirmed that the two overlapping contacts observed closer to the front licence plate could not have occurred during a single collision event. He concluded that the damage to the applicant’s vehicle indicated multiple contacts with MA’s front right wheel and that while it was possible that two of the contacts occurred during the same collision sequence, simulation of the collision confirmed that at least one and possibly two additional distinct collisions between the vehicles occurred. Furthermore, despite the applicant’s evidence at the EUO and during his testimony of his vehicle’s A-1 condition and no prior damage, his vehicle had unrelated damage to the hood and left side that likely pre-existed the collision.
17On his collision report supplementary statement form dated June 14, 2018, the applicant had estimated that his vehicle was travelling at 60 km/hr when it struck M.A.’s vehicle and later at his EUO he stated he was travelling at maybe 50 km/hr. However, using the collision simulation program, Mr. Jenkins’ opinion was that the applicant’s vehicle was travelling between 30 km/hr to 40 km/hr, which is slower than the applicant’s account. Mr. Jenkins’ opinion was that M.A.’s vehicle was stopped when the initial impact occurred.
18Furthermore, while reviewing the surveillance video of the moment before contact and then the moments after contact, Mr. Jenkins testified that his impression is that it was not obvious that the applicant completed any evasive action, such as emergency braking or steering.
19I accept Mr. Jenkins’ opinion. He obtained his Bachelor of Engineering Science in Mechanical Engineering in 2000. His credentials were not questioned by the applicant. Given his credentials and experience, I accept that he is an expert in motor vehicle collision investigation and reconstruction.
20The applicant submits that, for the most part, the damage sustained in the accident correlates well with the description he provided; however, there was a third tire imprint on the applicant’s vehicle’s front bumper that Mr. Jenkins did not provide a conclusive opinion on whether or not the damage is related to the accident.
21I find that the applicant’s evidence that there was only one impact and that his vehicle was in A-1 condition with no prior damage is inconsistent with Mr. Jenkins’ evidence. Mr. Jenkins’ evidence is that damage to the applicant’s vehicle indicated multiple contacts with M.A.’s front right wheel and that the applicant’s vehicle had unrelated damage that likely pre-existed the collision. There is no expert evidence to refute Mr. Jenkins’ opinion.
Surveillance videos
22On June 15, 2018 (the day after the collision), the respondent became aware of this collision. The respondent had questions and felt that an investigation was warranted. Ms. Sue Collings (senior investigator for the respondent) was assigned to this matter. She looked at the applicant’s insurance background and contacted M.A.’s insurer, Aviva, to put them on notice that their vehicle was also involved in the collision. She canvassed the scene of the accident for information and was able to locate two surveillance cameras in the location of the accident. One was from [a bakery] (camera facing southwest and capturing the intersection) and one was from [a store] (camera facing northeast and capturing the intersection).
23The respondent submits that the video from [a store] has a more accurate timestamp than the video from [a bakery] as it is Internet set rather than manually set. I was provided with an email dated December 12, 2019 from [S.S.], an asset protection manager from [a store], indicating that he reviewed the video and he confirmed that the date and time are correct. He noted that the time is pulled from the Internet so it is accurate all the time, and the video is motion recorded so when there is motion in the frame of the camera is when the video will start to record and that is why they were able to catch this incident on video.
24The surveillance video supplied by [a store] captures that the collision occurred on June 14, 2018 at 10:28:31 pm. At 10:30:01 pm, approximately 90 seconds after the collision, the first tow truck arrives to the scene of the collision and then a second tow truck arrives a few seconds after that.
25The video supplied by [a store] ends at 10:56:21 pm (approximately 28 minutes after the collision). The respondent submits that there were no vehicles there at that time and no other tow trucks showed up. The applicant submits that his vehicle is there and that he can be seen walking back to his vehicle between 10:44:59 pm and 10:45:07 pm.
26I find that the most significant inconsistency between the applicant’s evidence and the surveillance evidence is the timing of when the two tow trucks arrived at the scene. I find that this inconsistency calls the applicant’s reliability into question. At his EUO, the applicant stated that Mike showed up to the scene at around the same time as when the two other tow trucks also arrived. During his testimony, the applicant changed his answer and said that the two other tow trucks showed up right away and that Mike showed up between 10 to 20 minutes later. As noted above, the surveillance evidence indicates that the two tow trucks arrived at the scene approximately 90 seconds after the collision.
Cell phone records
27The applicant testified that he had his cell phone with him the evening of the collision. The respondent submits that the applicant’s cell phone records do not match the evidence of the applicant’s activity before and after the accident, and that the applicant was not the driver of the BMW at the time of the collision. The applicant testified that he has provided his cell phone records to the respondent, but he has no explanation for the phone logs.
28The respondent submits that the applicant’s cell phone records show that he was not in [city B] near [a bar] at the time of the collision. Instead, he was in the area of [city C]. According to the evidence of Mr. Kyle Elliot (representative of Bell Canada), the applicant’s cell phone was located in [city D] between 8:57 pm and 10:15 pm. His cell phone was located in [city C] at 10:31 pm. His cell phone was located in [city B] from 10:44 pm to 12:22 am. As noted above, the surveillance evidence indicates that the accident occurred at 10:28 pm.
29The applicant submits that Mr. Elliot stated that the location on the phone logs is used for billing purposes only and not for tracking purposes. I agree that Mr. Elliot stated that the phone logs are for billing purposes and not to track people. Mr. Elliot also testified that an incoming or outgoing phone call connects to the nearest cell tower that is available.
30As noted above, the applicant testified that he had his cell phone with him on the evening of the collision. I find that the applicant’s evidence of being near [street E] and close to [avenue F] in [city B] at the time of the collision is inconsistent with his cell phone records. The accident occurred at 10:28 pm as evidenced by surveillance video. At 10:31 pm, the applicant’s cell phone connected to a cell tower in the [city C] area. I accept the evidence of Mr. Elliot and find that the applicant’s cell phone records indicate that the applicant and his cell phone were not in fact near [a sport’s bar] at the time of the collision, which is located in [city B], and were instead in the area of [city C].
The applicant’s failure to call any other witnesses to refute the allegation that the collision was staged
31I heard evidence from Ms. Sue Collings, a senior investigator for the respondent, who was assigned to investigate the applicant’s collision. The applicant’s collision was flagged as a potentially staged accident because of numerous factors, some of which include the following:
i. The respondent is familiar with the applicant’s business address and submits that there is a history of staged collisions coming out of that address;
ii. The applicant transferred his vehicle to his name two days prior to the collision. Prior to that transfer, the vehicle had been registered to a company of his;
iii. The collision occurred in a quiet, industrial area late at night. The surveillance evidence indicates that the two tow trucks arrived at the scene at almost the same time within 90 seconds of the collision;
iv. M.A.’s vehicle was towed by M.A.’s own towing company that is registered out of [city E];
v. The invoice from [a towing company] was determined to be a fraudulent tow invoice as an investigation by the respondent and the [city B] Licensing Enforcement Unit revealed that the company does not exist; and
vi. On July 3, 2018, Mr. Jenkins assessed the applicant’s vehicle and told Ms. Collings that there were at least two impacts during the collision.
32The applicant submits that Ms. Collings conducted an investigation that is full of inaccuracies about crucial information that the respondent’s committee relied on in making its decision. Furthermore, the applicant submits that Ms. Collings’ investigation was fueled by a personal vendetta and a desire to take revenge on the applicant after an incident at his place of business when she overstepped her boundaries and involved herself in a matter between the applicant and a customer of his regarding a rental car contract that did not concern the respondent’s Special Investigations Unit.
33Ms. Collings testified that even though her interaction with the applicant was not necessarily positive, it did not prevent her from conducting this investigation. I accept her evidence that she is capable of running an independent and fair investigation.
34I heard evidence from Mr. Stefan Nasner, investigator at Aviva Canada. Mr. Nasner stated that M.A. made a property damage claim following the collision; however, he was uncooperative with the investigation of the collision. When Aviva requested to allow his vehicle to be inspected and sent proof of loss and authorization forms to be completed, he refused and has abandoned his claim.
35I draw an adverse inference from the applicant’s failure to call any other witnesses to refute the respondent’s allegations that the collision was staged. Mike, the tow truck driver, was not called by the applicant to testify at the hearing regarding the events of June 14, 2018. Furthermore, there was no expert evidence to refute Mr. Jenkins’ opinion.
36I find that the applicant’s evidence as to his collision dated June 14, 2018 is not reliable. I have drawn an adverse inference against the applicant from his failure to call any other witnesses to refute the respondent’s allegations that the collision was staged. Therefore, I find that the collision was staged and that the applicant has failed to satisfy his onus to show he was in an accident as defined in s. 3(1) of the Schedule.
AWARD AND COSTS
37On day three of the four day in-person hearing, the applicant requested that an award be added as an issue in dispute at this preliminary issue hearing. The respondent objected to the addition of the issue. I denied the issue to proceed because it was not appropriate in these circumstances for the following reasons: the hearing was already half complete and the applicant’s testimony had concluded when the applicant requested that it be added as an issue, and the applicant had not provided the respondent with the particulars of an award.
38As part of the applicant’s written closing submissions, he requested costs. The applicant’s request for costs is denied because I am not satisfied that the respondent’s conduct was unreasonable, frivolous, vexatious or in bad faith. Therefore, no costs are awarded.
CONCLUSION
39I find that the applicant was not involved in an accident as defined in s. 3(1) of the Schedule and, as a result, is not entitled to any statutory accident benefits. The applicant’s appeal is dismissed.
Released: February 12, 2020
Melody Maleki-Yazdi
Adjudicator
Footnotes
- O. Reg. 34/10.
- M.D. v. Intact Insurance Company, 2017 CanLII 87155 (ON LAT).