Haben Gyesus v. Royal Sun Alliance, 2022 CanLII 4543

Citation: Gyesus v. Royal Sun Alliance, 2022 ONLAT 21-001119/AABS

Licence Appeal Tribunal File Number: 21-001119/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:

Haben Gyesus

Applicant

and

Royal Sun Alliance

Respondent

DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Haben Gyesus, Applicant

Mathew D. Reid, Counsel

For the Respondent:

Jennifer Sweitzer, Counsel

Lee Llala, Representative

Court Reporter:

Prashanth Thambilillai

HEARD by Videoconference:

November 18 and 19, 2021

BACKGROUND

1The applicant was involved in an automobile accident on October 12, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”) The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant submits that she was in an accident in London, Ontario. She was turning left out of a parking lot onto a road when her vehicle was hit by another vehicle. Both vehicles were towed from the scene and the police were called. She provided a statement to the police as did the other driver. The applicant stated she was charged under section 139 one of the Highway Traffic Act for failure to give right of way from a private road.

3The respondent denies the incident was an accident because it does not meet the definition of an "accident" as defined in the Schedule. It states the accident did not occur as reported by the applicant. It relies on an accident reconstruction report which concluded the collision could not have occurred as claimed by the applicant. The vehicles were in a collision but not with each other. It submits the accident was staged.

4The preliminary issue hearing proceeded by video hearing over two days. The applicant, the other driver and the accident reconstruction expert testified at the hearing.

PRELIMINARY ISSUE

5The preliminary issue is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule?

RESULT

6The applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.

OVERVIEW

The Accident

7The applicant testified that she was driving a Chevy Cruze at the time of the accident. On Thursday, October 11, 2018, she was in Toronto and had not gone to work that day. She decided to travel to her permanent address in London, which is her parents’ home, to pick up the Chevy Cruze. She testified she owns the vehicle and her mother co-signed for it. She testified that her parents do not know that she had a boyfriend and her parents did not allow her to drive the vehicle to Toronto. Notwithstanding this, she travelled from Toronto to London, picked up the Chevy Cruze, drove it back to Toronto and picked up her boyfriend who also lives in downtown Toronto. They then drove back to London where she attended a party at her friend’s home in London. Her friend's name is Malna. She testified that she and her boyfriend stayed at the house gathering from about 6:30 p.m. until about 2:30 a.m. on October 12, 2018. She testified that the accident occurred between 2 a.m. and 3 a.m. on October 12, 2018.

8She testified that she stopped at a drug store on the way home from the house party. She drove into the parking lot off Jalna Boulevard and noticed the drug store was closed. As she left the parking lot, she was turning left onto Jalna Boulevard. She testified she had looked both ways before completing the turn. In her statement to the police, she said she thought a tree perhaps blocked her view. At the same time as she was making a left turn, a car was approaching and it struck her vehicle on the driver side at the front. She said her car spun around to the right (clockwise).

9After impact, she asked the driver of the other vehicle if he was okay. She then testified that she called the police and 911, at least three times. The police arrived about 45 minutes later. They asked her if she was fine and if she needed an ambulance. She said no. During cross examination at the hearing and at the EUO,¹ the applicant testified that she had stopped at a Tim Horton’s before going to the drug store and ordered some take out food.² She stated that she was in the parking lot for a while before exiting the parking lot. In her signed statement dated July 15, 2020,³ she stated it was her boyfriend who got out of the vehicle after the crash and spoke to the other driver to make sure he was okay.

10The police attended the site and a vehicle accident report was created⁴. The motor vehicle accident report indicates the time of the collision is 3:25 a.m. and the time the police officer arrived or when this was reported is 3:51 am.

The police did not do an investigation.

11The applicant and other driver each gave a statement to the police on October 12, 2018. The London Police General Occurrence Report⁵ states as follows:

The applicant will say: (the statement time is 4:47 a.m.)

a. I was turning left out of the parking lot and I didn’t see the car coming down Jalna and the car hit my car. I think the tree was blocking my view. The statement says the other driver, Omar, will say (The statement time is 4:49 a.m.)

b. I was driving down Jalna and suddenly this car came out in front of me and I hit it. I don’t know if it was turning or going straight.

12The applicant testified that she did a Google search to find a tow truck company that turned out to be from Mississauga. She testified they told her they would be about 45 minutes. The tow truck arrived and towed the car to a Mississauga location. The applicant and boyfriend were in the vehicle when it was being towed. She was not able to explain during cross examination at the hearing why the tow truck first drove past her parents’ home in London. Her statement that she did not have a key to her parents house is not logical. As to why the car was towed to Mississauga when she claims her address is in London, she stated she found the tow truck company from an internet search and then learned they were from Mississauga.

13As to her address, she testified she lived at several addresses. She claims her permanent address is in London, which was her address at the time of the accident. She also stayed at her boyfriend’s place in Toronto. The clinical notes of a walk in clinic dated February 2018 ⁶ indicate she was living temporarily with her sister in Toronto. The evidence establishes that she worked in Toronto.

14The location of the vehicles after the collision is shown on the expert accident reconstruction report ⁷ in figure 11, which shows the applicant’s vehicle after the point of impact facing north and resting on the west side of the roadway. The expert in his report states the collision as reported would have had the applicant’s car rotate 360 degrees which is not possible based on the low speed of the car at collision. This would defy the law of physics. Moreover, the other vehicle after impact is facing south and somewhat angled to the west and is also resting on the west side of the roadway. The evidence establishes that neither party took any photographs that included both vehicles at the collision site. The applicant testified at the EUO that she took 2 photographs⁸ of her car damage and one of the other car. The photographs show the cars’ positions as they rested separately at the scene of the accident.

15During cross-examination, the applicant testified that despite agreeing to produce her telephone phone records at the EUO, she did not produce them. These records could have corroborated her calls to the police, 911 and the tow truck.

16The applicant did not call her boyfriend as a witness to testify nor did she obtain a statement from him. She testified the relationship ended early in the new year in 2019.

17She testified that on the day of the accident, she was not at work and may have been off work that entire week. She confirmed during her testimony that she does not know the other driver whose name is Omar. The applicant claims she could not recall some of the details of the collision because she had sustained a concussion from the accident. She presented no medical record to support that claim. The medical note from her visit to the Danforth walk-in clinic on October 23, 2018⁹ indicates there was no head injury from the accident.

18The insurer’s loss report¹⁰ does not name the applicant as the owner and insured of the applicant’s vehicle. The document also states damage is to the entire front of the vehicle, the steering is broken, which caused the air bag to deploy. The loss report indicates the car was towed to an auto collision place in Mississauga.

The Second Vehicle

19The driver of the second vehicle (Omar) involved in the accident was called to testify. On the evening in question, he stated he had gone out with some friends and was at a local fast food restaurant until about 2 a.m. He testified that he also lives in London. He was driving his Toyota southbound on Jalna Boulevard when a car that was making a left turn from a Shoppers Drug Mart parking lot pulled out in front of him. His vehicle struck the vehicle as it was pulling out. After impact, he got out of the vehicle and asked the other driver if the other driver was ok. He then called the police. He stated the car was not drivable after the collision. Ultimately the car was towed to Toronto although he lives in London. He tried to have a friend help him to call a tow truck company but wasn’t able to arrange for one, so he asked the driver of the tow truck that towed the applicant’s car to tow his vehicle. The tow truck driver agreed and said he would return to the accident site and tow his vehicle from the scene of the accident. Omar testified he returned home at about 5:30 a.m. He said the tow truck company confirmed they would return to the scene of the accident after they dropped off the applicant’s car. He said the tow truck came about 30 minutes later.

20During Omar’s testimony at the hearing, counsel for the respondent and I noticed there was another individual in the room as he gave evidence. The testimony stopped. Omar stated his spouse was in the room. No prior notice or approval was obtained to allow his spouse to be present in the room when he testified. Counsel for the respondent requested that his evidence be excluded from the hearing. After hearing submissions, I allowed the evidence with the indication the weight assigned to his testimony is to be determined by the adjudicator. It was not clear that the spouse assisted Omar in giving evidence.

21During cross examination, Omar testified that subsequent to the accident he hired a lawyer in respect of the accident and provided a written statement to his lawyer. ¹¹ He stated he provided a statement and hired a lawyer as his insurance company questioned if there was an accident and was seeking repayment of the loss paid for the vehicle. He stated his spouse had read over his written statement before he signed it. In the signed statement dated September 1, 2020, he said the car spun clockwise after impact. It came to rest partially on sidewalk and on the road. He was at the scene for about two hours. The car was towed. He was not sure where it was towed to and did not ask. The next day he read the business card that he got from the towing company and noticed the tow truck company was from Mississauga.

22Neither party took pictures of the scene of the accident showing the position of both cars together after impact.

The Accident Reconstruction

23The respondent hired an accident reconstruction expert, Darryl Schnarr, P. Eng, Forensic Engineer, to reconstruct the accident and determine whether an accident had occurred as reported. Mr. Schnarr completed the accident reconstruction report (the Report) ¹² though he did not physically visit the accident site. Instead, he used the few photographs taken of the damaged vehicles at the collision site and Google maps to reconstruct the positioning of the cars after impact. He testified that he is an expert on accident reconstruction and has completed at least 500 accident reconstructions. I accepted him as an expert in accident reconstruction. He gave expert testimony.

24He concluded based on his review of the scene, the photographs of the damage to the vehicles, the Google maps of the accident scene, reports by the applicant of the resting positions of the cars after impact as well as data retrieved from the vehicles including the Bosch Crash Data Retrieval (CDR) system and the Airbag Control Module (ACM) that the accident did not occur as reported by the applicant. He concluded that the two vehicles were in a collision but not with each other. The vehicles were in a separate collisions with other vehicles that were not involved in this accident.

25Figure 10 of the Report illustrates the vehicles’ position at the point of collision. Figure 11 illustrates the vehicles after impact and shows their resting position based on an estimation from the evidence taken from the collision photographs which showed each damaged cars as they sat on the roadway after the collision.

26Mr. Schnarr testified that in a collision, the collision forces must be equal and correctly aligned. Figure 13 demonstrates how the vehicles would be at impact had their collision forces aligned. He stated not only did the vehicles not align but the collision forces do not align with the pre-impact direction of travel of either vehicle. Said another way, he stated in the report “if the vehicles collided as described in figure 10, collision forces as described by the ACM data could not have been generated. The Omar Toyota would have experienced collision forces rearward and inward, directing it to the east post-impact “ The extracted data from the ACM of both vehicles were not related to the same collision. The vehicles were involved in a collision but not with each other.

27He also explained that a review of the damage of both vehicles indicates the damage height did not match. In a collision, damage caused by a collision must match in height, severity and character. In this collision, the damage height did not match. He concluded the physical damage to both vehicles precluded the accident from occurring as reported.

28As to post impact motion and based on the photographed rest positions of the cars and the circumstances of the collision as reported, he stated that the applicant’s car was travelling east primarily at impact but came to rest facing north. The collision as reported by the applicant¹³ would have required the applicant’s vehicle to spin 360 degrees after collision. Mr. Schnarr states this is not possible due to the low speed of the applicant’s car at time of collision. The Omar vehicle was travelling southbound and ended up on the west side of the road. He states that as a result of this collision, the applicant’s vehicle would have pushed the Omar vehicle to the east not west. Mr. Schnarr’s report states, “The post impact motion [as reported] would defy the law of physics.”

29In summary, Mr. Schnarr concluded that the vehicles did not collide with one another. The collision forces are not correct in terms of their direction of action, their direction relative to the positions, the rest positions and the implied post-impact motion are physically impossible and would defy the laws of physics. He stated in the report “It is far more likely these two vehicles were involved in two separate collisions with two separate vehicles.”

30Moreover, based on the positioning of the cars after impact as described by the applicant and other driver, the expert testified the cars ended up primarily on the west side of the road. The expert concluded and testified however that had the collision occurred the way it was described by the applicant and other driver, both vehicles would have ended up on the east side of the road and not the west.

31He testified there was also a lot of liquid on the road and the liquid would be more likely if the cars were towed to the collision site. He also stated he would have expected debris at the point of impact. There were no signs of debris from the photographs. He testified that the cars were towed to the collision site and the accident was staged.

ANALYSIS

32I find that the applicant has not met her burden of proof to establish an accident occurred as defined in section 3 of the Schedule. The applicant relies on her testimony and that of the other driver, Omar, to establish the occurrence of the collision. She also relies on the fact that the police attended and created an accident report. I find having the police attend at the scene and create a motor vehicle accident report is not sufficient proof to establish an accident occurred as defined in section 3 of the Schedule in light of some inconsistencies from her evidence and the conclusions set out in the Report.

33I find based on the testimony and conclusions of the expert set out in his Report from his review of the damage to the cars, the damage height and the positioning of the cars shown in a few photographs after the accident and the extracted data from the air bag modules from the vehicles, the accident could not have occurred the way it was stated to have occurred by the applicant and other driver. The expert concluded it would defy the law of physics. I am persuaded by Mr. Schnarr’s evidence and find his Report cogent.

34There are also number of inconsistencies with the evidence of the applicant and the other driver that raises issues of credibility. For example, she claims the Omar vehicle ended up on the curb and part on the grass. This, however, is not evident from the photograph of Omar’s vehicle at the collision site.

35The applicant testified she drove back and forth several times on the day in question between London and Toronto. Specific times were not identified during testimony but she testified that despite her mother’s direction to not travel to Toronto, she travelled from Toronto to London on the 11th of October, picked up the vehicle, drove back to Toronto to pick up her boyfriend and then drove back to London from Toronto and she then visited a friend in London at 6:30 p.m. and was then involved in an accident between 2 and 3 am. This travel back and forth in a 24 hour period is possible but questionable considering the distance and time required to travel between London and Toronto.

36The applicant had several addresses including living permanently with her parents in London at the time of the accident. But then she testified she worked in Toronto and then lived occasionally with her sister and boyfriend, both in Toronto. A clinical note dated February 2018 from a clinic states she has a Toronto address and she was happy she no longer lived at her parents’ home. I find this evidence suggests further inconsistencies with her evidence, though this is of little relevance to the issue of whether there was or was not an accident.

37I find that despite the fact that the accident occurred in London and both live in London, the cars after collision were towed to a site in Mississauga. The applicant states that she selected a tow truck company via a search on the internet. Omar testified he ended using the same tow truck as the applicant. No satisfactory explanation was provided as to why the cars are towed from the accident scene in London to a Mississauga location and Omar did not ask where the vehicle was being towed.

38There are also inconsistencies with Omar’s evidence. He stated he stayed at a local restaurant until 2 a.m. and had returned home at around 2:20 am and his spouse had asked him to go out and purchase some needed Tylenol. Despite this errand, he was away from home and did not return until 5:30 am. He never called his spouse to explain the delay or why he was absent and had been in an accident. The applicant testified she left the scene at around 5 a.m. with her boyfriend in the tow truck. Yet Omar testified he had the tow truck drive return and pick up his vehicle and tow it away. He stated he returned home at 5:30 am. Having the same tow truck return so quickly is not possible in light of the distance between London and Mississauga.

39The applicant’s evidence as to her car’s position post impact does not align with the conclusions reached by the accident reconstruction expert. She testified at the hearing that her car spun around to the right (clockwise). If this is correct, her car, based on the expert reconstruction report, should have faced south and east and not north.

40Most importantly is that the applicant did not produce any records of the telephone calls made to the police or 911 despite requests for production of these documents at an EUO.¹⁴ She also did not call her boyfriend who was a passenger in the vehicle and could have given testimony to corroborate the collision. She stated the relationship ended some time after the accident and this is why she did not get a statement despite her efforts. The fact remains no corroborating evidence was obtained from him. She also did not call her friend Malna who could have also corroborated the claim that she and her boyfriend visited her home on the eve of the collision.

41I find it not reasonable that neither party took pictures that showed the resting position of both cars together after impact. This would have been of assistance and corroborate the positions of the cars after impact.

42The applicant bears the burden to prove an accident occurred. As stated in Shakur v Pilot Insurance ¹⁵ “it is fundamental in insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy.”

43I find the applicant did not present sufficient evidence to establish an accident occurred as defined in section 3 of the Schedule. She did not present any evidence to contest the findings of the expert in his accident reconstruction report. He was qualified as an expert at the hearing and testified he has completed at least 500 accident reconstructions. There is no basis to dispute his findings and conclusions in his Report.

44The Tribunal has determined that a staged accident is an intentional act that is contrary to public policy.¹⁶ Allowing a party to claim accident benefits from a staged accident would be contrary to the public policy and section 118 of the Insurance Act ¹⁷ which reads:

“Unless the contract otherwise provides, a contravention of any criminal or other law in force in Ontario or elsewhere does not, by that fact alone, render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage…”

45Based on the totality of the evidence, I find the applicant did not present sufficient evidence to establish an accident occurred as defined in the Schedule.

CONCLUSION

46There was no accident as defined in section 3 (1) of the Schedule.

Released: January 28, 2022

Thérèse Reilly, Adjudicator

Footnotes

1. 1Exhibit 10, Transcript of the EUO, dated February 2019, Tab 19, respondent revised document brief.
2. 2Exhibit 13, Adjuster log notes, page 162, respondent revised document brief.
3. 3Exhibit 7, Signed statement of the applicant dated July 15, 2020, tab 8, respondent revised document brief and applicant’s document brief, page 179.
4. 4Exhibit 3, Motor Vehicle Accident Report, tab 1, respondent revised document brief.
5. 5London Police General Occurrence Report, Exhibit 4, dated October 12, 2018, respondent revised document brief, pages 371 to 374.
6. 6Exhibit 11, clinical notes from the Danforth Walk in clinic, tab 3, respondent revised document brief.
7. 7Exhibit 1, Accident Reconstruction Report, Darryl Schnarr, P. Eng., Precision Forensics dated January 17, 2019, tab 4, respondent revised document brief.
8. 8The photographs of the damaged cars at the collision site appear in figures 5, 6 and 7 of Exhibit 1, the accident reconstruction report. A photograph of the applicant’s vehicle is found at figure 8 of the accident reconstruction report. Figure 9 shows Omar’s damaged vehicle.
9. 9Exhibit 6, medical note from the Danforth Medical Walk in Clinic.
10. 10Loss report dated October 25, 2018, tab 2, respondent revised document brief.
11. 11Exhibit 19, written statement of Omar, the other driver, dated September 1, 2020, tab 9 of the respondent revised document brief, and also at page 180 of the applicant document brief.
12. 12Exhibit 1, Accident Reconstruction Report, by Darryl Schnarr, Precision Forensics dated January 17, 2019.
13. 13The applicant’s hand-drawn diagram of the accident scene is figure 4 in the Report.
14. 14Transcript of the EUO, Exhibit 10, tab 19 of the respondent’s revised document brief.
15. 15Shakur v Pilot Insurance, 1990 CanLII 6671 (ON CA).
16. 16M.D. v. Intact Insurance Company, 2017 CanLII 87155 (On. LAT), and see also: Amare v Economical Insurance Company, 2021 CanLII 100265 (On. LAT).
17. 17Insurance Act, RSO 1990, c I.8