Licence Appeal Tribunal File Number: 20-012429/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:
Yasaman Seyed Alizadeh
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION ON PRELIMINARY ISSUE MOTION
VICE-CHAIR: D. Gregory Flude
APPEARANCES:
For the Applicant: Neda Nazari-Pruden, Counsel
For the Respondent: Farid Mahdi, Counsel
Held by: By way of written submissions
BACKGROUND
1On Saturday, May 13, 2017, at approximately 4:00 p.m., a motor vehicle accident occurred at a small plaza on Wilson Avenue in Toronto. A driver pressed the accelerator rather than the brake, his car mounted the curb, struck two pedestrians, and smashed into a restaurant. The applicant, Yasaman Seyed Alizadeh, asserts that she was sitting by the window in the restaurant at the time of the accident, with her back to the window, and sustained impairments from the accident. The respondent, TD Insurance Meloche Monnex (“TD”), asserts that she was not involved in an accident and has brought this preliminary issue motion for an order striking Ms. Alizadeh’s claim on that basis.
2I find the evidence supports Ms. Alizadeh’s position that she was involved in the accident. TD formed an opinion early in the process that she was not and, appears to have discounted new evidence as it was produced if it did not corroborate its theory of the case. On the evidence before me, I find Ms. Alizadeh was in an “accident” as that term is defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
PRELIMINARY ISSUE IN DISPUTE
3Initially there were two preliminary issues in dispute. In submissions, TD advised that it had withdrawn one of the issues, leaving only the following as the issue in dispute:
i. Has the applicant discharged her onus to establish on a balance of probabilities she was involved in the May 13, 2017 motor vehicle accident at Mustafa Restaurant?
RESULT
4Ms. Alizadeh was involved in an accident on May 13, 2017.
PROCEDURAL ISSUE
5In the Case Conference Report and Order released on April 6, 2021 (“April 6 Order”), the Tribunal set a timetable for the service and filing of the parties motion briefs for this motion. The parties consented to the timetable. Since TD is bringing the motion, its submissions were due on September 10, 2021, Ms. Alizadeh’s Responding submissions were due on September 24, and TD’s Reply submissions were due on October 1, 2022. Despite this clear timetable, on October 1, 2022, Ms. Alizadeh filed Reply submissions. She attached two rather fundamental documents to her Reply submissions, an Application for Accident Benefits (“OCF-1”) dated June 26, 2017, and a letter from TD dated June 27, 2017 denying benefits until it had received the OCF-1.
6TD submits that Ms. Alizadeh has no right to file Reply submissions and her submissions and the attachments should be excluded as she is in breach of the April 6 Order. Ms. Alizadeh submits that the Notice of Written Hearing dated July 21, 2021 gives her the right to file Reply submissions. This argument is sophistry. The Notice of Written Hearing does not displace the specific details in the April 6 Order. Indeed, it purports to reflect the provisions of the April 6 Order where it says: “As ordered by the Tribunal…” Thereafter it contains errors that are obvious on their face, wrongly entering ‘applicant” where it should say “respondent” and vice versa. It is an administrative and derivative document and Ms. Alizadeh should immediately have understood and raised the fact that the misstated timetable is not the timetable she consented to in the April 6 Order.
7Ms. Alizadeh does not have a right of reply and I will not consider her Reply submissions.
ONUS
8TD submits that while it carries the onus in this motion as the moving party, Ms. Alizadeh carries the overall onus to establish, on a balance of probabilities, that she satisfies the elements of her claim, notably that she was involved in an accident as defined in s. 3 of the Schedule that led to impairments for which she needs treatment. Ms. Alizadeh does not address this issue directly in her submissions.
9TD has submitted a line of cases in support of its position on onus. In Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA) the Court of Appeal encapsulated the basic premise of insurance law: “It is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.” In Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627, the Divisional Court upheld the Director’s Delegate’s application of Shakur in claims under the Schedule. In 17-000532 v Intact Insurance Company, 2017 CanLII 87155 (ON LAT), this Tribunal has held that it is bound by the Shakur doctrine as applied in Owasu.
10Having considered the case law cited by TD, I am satisfied that, in the current proceeding, Ms. Alizadeh carries the overall onus to prove on a balance of probabilities that she was involved in an accident on May 13, 2017. To borrow a phrase from the courts in summary judgment proceedings, Ms. Alizadeh must “lead trump or risk losing.” (See 1061590 Ontario Ltd. v. Ontario Jockey Club, 1995 CanLII 1686 (ON CA)). As stated above, I find that she has done so.
ANALYSIS
11The focus of TD’s submissions is not on the documents it received, but on what is missing. It points out that there is no mention of Ms. Alizadeh in the police motor vehicle collision report or the ambulance call log. It also points out that, despite Ms. Alizadeh stating that she attended the emergency department at North York General Hospital, there are no hospital notes of the visit. In its submission, Ms. Alizadeh was injured in some other manner during the weekend, read about the accident in the news, and decided to cash in by claiming she had been involved in it.
12Ms. Alizadeh’s version of the events is that she was having a late lunch with two friends. They had just been seated in the Mustafa Turkish Restaurant and had been served a salad, when a car smashed into the plate glass window, and she was struck from behind. She believes one of her friends called 911. In Will Say statements from each of her friends and produced by Ms. Alizadeh’s legal representative, both friends say they called 911. Paramedics and police attended. There were two injured pedestrians outside the restaurant, one of them with serious injuries, but the paramedics still had time to check Ms. Alizadeh over and recommend she go to hospital.
13Ms. Alizadeh’s dealings with Ontario’s healthcare services were somewhat conditioned by the fact that, as an international student on a student visa, she did not have OHIP coverage. She declined the opportunity to take the ambulance to the hospital. She finally went to hospital either the next day, Sunday, or Monday morning, she does not recall. At triage she was told it would cost her $1,000 to be seen and a less expensive option was for her to go to a walk-in clinic. She went to a walk-in clinic on Monday and her injuries were noted. It is not surprising there is no hospital record as Ms. Alizadeh did not complete the triage process.
14At a later time, Ms. Alizadeh sent photographs of the accident scene taken on her phone to TD. The metadata from these photos shows what is obvious on the face of the photos, that they were taken in close temporal proximity to the accident. Accident scenes are ephemeral, with clean-up, repairs, and vehicle removal being carried out shortly after the events. There is no other explanation for the photos on Ms. Alizadeh’s phone that they were taken at the accident scene in an around the time of the accident. If we are to accept TD’s position, news of the accident must have been available and read by Ms. Alizadeh within minutes of it happening, she must also have sustained her injuries in an around that time and rushed to the accident scene to take photos and “cash in.”
15Ms. Alizadeh’s injuries, on the back of her legs, are also consistent with her evidence on the mechanism of the accident. The physical injuries alone, together with the accident scene photographs, are enough to convince me on a balance of probabilities that Ms. Alizadeh was present at the accident scene and sustained injuries as a result of the accident. Other theories of causation are mere speculation.
ORDER
16Based on the above, I find that Ms. Alizadeh was involved in an accident at 866 Wilson Avenue, Toronto on May 13, 2017.
17Paragraph [3] of the April 6 Order states:
The preliminary issue shall be heard prior to the substantive issues. Depending on the result, the parties may contact the Tribunal within 30 days of the release of the decision on the preliminary issue to schedule a resumption of the case conference.
18Given changes to Tribunal procedure since the April 6 Order was released, this paragraph is amended to state that the Tribunal will contact the parties to schedule a case conference to deal with moving this matter forward to a hearing.
Released: October 28, 2022
D. Gregory Flude
Vice-Chair