Citation: Cheng and Li v. Co-operators General Insurance Company 2023 ONLAT 21-011035/AABS and 21-011036/AABS

License Appeal Tribunal File Number: 21-011035/ABBS and 21-011036/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:

H.D.C. and X.Y.L.

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Anita John

APPEARANCES:

For the Applicant:

Hao Da Cheng, Applicant

Xin Yi Li, Applicant

Anil Hampole, Counsel

For the Respondent:

Chris Martin, AB Specialist

Kathleen F O'Hara, Counsel

Ethan Edwards, Student-at-law

Jenny Peng, Mandarin Interpreter

Guido Riccioni, Court reporter

Christopher Schiffmann, Court reporter

HEARD: by Videoconference:

Scheduled from January 9, 10, 11, 12, 13, 2023

1This proceeding concerns a dispute between the insured persons (“applicants”), who were involved in an automobile accident on March 29, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)(“Schedule”). The applicants were denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2After Roar Engineering completed a vehicle collision investigation report dated, May 14, 2021, amongst others, which determined that the accident had been staged, the respondent notified both applicants that their claims were denied as it concluded that the applicants were not injured in an accident within the meaning of s. 3(1) of the Schedule. Further, the respondent explained that it believed the applicants willfully misrepresented material facts with respect to their application for accident benefits. The respondent determined that the accident did not occur based on a vehicle collision investigation report, a biomechanical injury investigation report and significant inconsistencies pertaining to the loss itself as uncovered through the Examinations Under Oath (“EUO”). Essentially, the respondent takes the position that this was a staged accident.

3The applicants deny that the accident was staged. They filed applications for dispute resolution with respect to the respondent’s determination that they were not involved in an accident and subsequent denial of accident benefits. A case conference was held on June 29, 2022, and the parties were unable to resolve the issues in dispute., Tribunal File 21-011035/AABS (commenced by H.D.C.) was combined with 21-011036/AABS (commenced by X.Y.L.) pursuant to the Licence Appeal Tribunal’s Common Rules of Practice and Procedure (LAT Rules).

4Both applicants had identical issues that were withdrawn prior to the videoconference hearing:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to non-earner benefit in the amount of $185.00 per week from April 27, 2021, to date and ongoing?

iii. Is the applicant entitled to a psychological assessment, in the amount of $2,200.00, as detailed in a treatment plan by Somatic Assessment treatment clinic, dated May 3, 2021?

iv. Is the applicant, entitled to a chiropractic treatment plan, in the amount of $1,300.00, as detailed in a treatment plan, dated January 15, 2022?

v. Is the applicant entitled to $70.00 for a doctor’s visit on December 3, 2021?

vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

5In response to the withdrawal of issues, the respondent requested that costs be added as an issue at the videoconference hearing.

ISSUES

6The issues in dispute are:

i. Did the incident that occurred on March 29, 2021, be considered as an accident as per the Schedule?

ii. Is the respondent entitled to costs pursuant to Rule 19? (This issue was added at the videoconference hearing).

iii. Are the parties entitled to interest on any overdue payment of benefits?

7I decline to make an order for costs.

RESULT

8The applicants are not entitled to claim accident benefits under the Schedule. I find that the applicants were not involved in an accident as defined by s. 3(1) of the Schedule. The onus is on the applicants to establish that they were involved in an accident. I find that the applicants have failed to meet their respective onus.

9The application is dismissed.

ANALYSIS

Was it a staged accident?

10Subsection 3(1) of the Schedule provides the meaning 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.

11A staged accident is an incident where an accident is created for the purpose of profit. The Tribunal has determined,¹ and I agree, that a staged accident is an intentional act that is contrary to public policy and s. 118 of the Insurance Act, RSO 1990, c I.8, and such an act is excluded from the definition of “accident”.

12As noted above, the respondent alleges that the accident was staged or did not occur as the applicants suggests. It submits that the inconsistencies in the applicant’s narrative, lack of corroborating evidence, and contradicting engineering reports all diminish the credibility of the applicants. It submits that the absence of evidence from witnesses, and failure to produce relevant evidence, when taken together with the inconsistent narrative, tip the balance of probability in favour of a determination that the accident was staged.

13In reply, the applicants submit that there is no evidence that suggests or corroborates the respondent’s allegation of a staged accident. They submit that the narrative of events and medical records, contradict the allegations that the accident was staged. With respect to their credibility, they submit that their respective accounts of the incident have been consistent when recounting it during examination under oath and notes that the medical records support this position. The transcripts from H.D.C.’s EUO taken on June 1, 2021, and X.Y.L.’s EUO taken on August 3, 2021, were entered as evidence.

14The incident occurred outside Shinta Japanese BBQ, in the parking lot with the applicant’s Mercedes-Benz E63 parked beside a third-party Mercedes-Benz. H.D.C. asserts that his car was struck on the driver side by the front of an Audi.

15The third-party Audi SQ5 was positioned such that it had to jump a curb to reach the applicant’s car. There is no apparent damage on the front of the third-party Audi SQ5. H.D.C. claims that his car appears to have been rotated at an angle approximately 30 degrees and that his passenger-side rear corner of his car met the passenger side quarter panel/wheel well of the third- party Mercedes.

16In addition, the Tribunal heard from Hang Yang Li, who claims to be a witness, who was pinned between the charging Audi and the applicant’s vehicle.

17Both parties provided illustrations of how the accident occurred in their respective hearing briefs, which were tendered as exhibits, at the videoconference hearing, on consent. The applicant’s illustration was a hand drawn diagram, which was adopted in the respondent’s vehicle collision investigation report, prepared by Roar Engineering Inc., as Figure 13. The respondent’s illustration is from the same report prepared by Roar Engineering Inc., which is reproduced below, as Figure 23. I find that the respondent’s illustration helpful as it clearly delineates in colour the applicant’s vehicle (red) being struck by the Audi (blue).

INVESTIGATION RESULTS

18The respondent hired Roar Engineering Inc. to investigate a 2018 Mercedes-Benz E63 insured to H.D.C. which was allegedly involved in a collision in a parking lot near Shinta Restaurant in Richmond Hill, Ontario, and sustained damages.

19The respondent provided Roar Engineering Inc. with an appraiser’s damage estimate from George Papadopolous and photographs for the car insured to H.D.C. The photographs showed that the damage indicated that bodywork was required on the left roof rail, rocker cover, left front door, left rear-view mirror, left front door trip, left rear door, and left quarter panel, equating to approximately $5300.00 in repairs.

20From the photographs, Roar Engineering Inc. found that the 2018 Mercedes-Benz sustained minor door damage that was comparable to that sustained in parking lots, typically from doors of adjacent vehicles that have been opened with minor force, encountering an incident vehicle. Roar Engineering found that such minor dings found on the applicant’s vehicle was not consistent with an impact from a moving vehicle.

21On April 26, 2021, Dr. Morris, from Roar Engineering Inc., went to K&J Auto in Scarborough to examine the applicant’s vehicle. At the time of the examination, Dr. Morris found that the surface damage areas present in the appraisal photographs for the driver-side front door and quarter-panel had already been filled and sanded, while not yet painted. Dr. Morris observed that it did not appear that any work had begun on the driver-side rear door damage.

22I draw an adverse inference as H.D.C. went ahead and initiated repairs to his vehicle, despite explicit instructions from the respondent, to wait until after the investigation. As a result, Roar Engineering was unable to examine the damage done to the vehicle.

Simulation Field Collision

23In a Vehicle Collision Investigation report dated May 14, 2021, using PC-Crash v12, and modelling a lateral T-bone impact of a 2015-2018 Audi SQ5 (blue car) onto a 2018 Mercedes-Benz E63 (red car), the investigators attempted to determine what level of collision severity was necessary to rotate the applicant’s vehicle approximately 30 degrees counter-clockwise in direction of the impact.

24Assuming normal asphalt friction of 0.8g, Roar Engineering calculated that when impacted by a decelerating (0.6g) Audi SQ5 travelling at 10 km/h, the applicant’s vehicle would have a sustained a lateral 5 km/h change in velocity (delta-V) to have pushed it from perpendicular alignment, to one rotated approximately 30 degrees counter-clockwise.

25Using the U.S. Department of Transportation’s National Highway Traffic Safety Administration’s CISS database, Roar Engineering was able to find a low-speed lateral impact to a 2014 Mercedes Benz sedan – a comparable vehicle.

26In the field collision, a 2013 KIA Optima sedan was used to represent the striking Audi. A 2014 Mercedes Benz sedan was used to represent the applicant’s vehicle.

27When the 2013 KIA Optima struck the left side of the 2014 Mercedes Benz, the simulation indicated more damage to both the front end of the Optima and left-side of the test Mercedes vehicle with smaller delta-Vs (changes in velocity).

28The investigators concluded that the Audi SQ5 appeared to have sustained no damage from a collision where it would likely have sustained a delta-V of 5 km/h for the applicant’s vehicle to have been pushed with a delta-V of 5 km/h. In both vehicles, the damage does not match the collision severity.

29The investigators also found that the Audi SQ5 would have had to have gone over a raised median curb with both of its axles to reach the incident Mercedes was highly unlikely to have occurred unless this collision was intentional. In cross-examination, Dr. Morris opined that the driver of the Audi would have been jostled from such a significant physical disturbance when the axles of the car went up, across and down the median.

30In addition, the investigators prepared an addendum report, dated August 12, 2021, where they examined two scene photographs of the incident Audi SQ5 (photographer not known).

31The investigators noted that from a close review of the Audi photographs shows that there is no evidence of damage to the headlights, license plate holder, grille, bumper cover, or damage to the hood or that would affect closure of the hood. In fact, there did not appear to be evident of paint transfer or even plastic deformation of the components.

32The investigators were then supplied a damage estimate for the Audi SQ5 as part of a Direct Repair Program from Santo Sarta of CSN – Automacs Collision Inc. in Oakville. The quoted required repairs included some of the following: front bumper replacement, grille assembly replacement, left headlight mounting bracket replacement, radiator support panel replacement and hood replacement. (A fulsome list of quoted required repairs can be found on p. 7 of the Addendum Report, dated May 12, 2021, in the respondent’s document brief, as only a cross-section of the repairs is mentioned above).

33Based on the scene photographs that was supplied, the investigators emphasized, that NONE of these components are legitimately required to have been repaired or replaced as there were no apparent damage to the Audi front-end from the alleged collision. The investigators felt that the damage estimate performed by the collision shop does not reflect the non-existent damage status of the vehicle found at the scene.

34The investigators concluded that the applicant’s vehicle appears to have incidental contact consistent with that which commonly occurs in parking areas. The investigators opined that the alleged collision never occurred, and the vehicles were positioned to provide the appearance of a collision.

35Upon review of the reports and on a balance of probabilities, I find sufficient evidence that if the applicant’s vehicle was pushed to the distance the applicant claims, then there should have been considerably more damage to the applicant’s car.

Biomechanical Injury Report, dated August 12, 2021

36In a report, dated July 30, 2021, Roar Engineering published its findings from a biomechanical injury investigation that analyzed the plausibility that a pedestrian could have been pinned between the two vehicles and walk away with minor injuries.

37H.D.C. stated, under examination under oath, that prior to the alleged accident, he backed perfectly straight into a parking space right in front of the restaurant, and to his right was a parked car. H.D.C. understood that the striking vehicle (Audi) went over the curb, struck a pedestrian, Hong Yang Li, who was pinned to the rear driver-side door of the Mercedes. H.D.C. understood that the pedestrian was the owner of the Audi. The pedestrian gave his friend, Fangrong Meng, permission to drive his car, who attempted to correct his parking when he lost control of the vehicle, drove forward, and pinned the pedestrian, Hong Yang Li, between the striking Audi and the Cheng Mercedes.

38By the time H.D.C. exited his vehicle, the pedestrian had already come out from between the two vehicles near the rear. H.D.C. spoke to the pedestrian in Mandarin. H.D.C. thinks that the pedestrian was just “touched” and not really “pinned” between the two vehicles. The pedestrian said that he had been struck in the calf area. No one called the police or 911.

39The applicants called the pedestrian, Hong Yang Li, as a witness. I do not find the pedestrian as a credible witness. First, I find Hong Yang Li to be a bad historian, as during the hearing he frequently answered questions with “I didn’t pay attention” or “I cannot remember” or “I am not sure” or “I don’t know how to express.” Second, Mr. Li did not provide particulars regarding his hospital visit. Third, Mr. Li was vague when describing injury, if any at all, to his legs.

40In PC-Crash, Roar Engineering Inc. chose a standardized male mannequin of 1.835 metres in height between Audi Q5 and the Mercedes E63. To estimate the crushing impact force on the human body, the mannequin was placed between the two vehicles, with the decelerating Audi striking the mannequin and Mercedes at 10 km/h. Such a collision would have developed significant forces on the pedestrian – between 554 and 13063 Newtons across the lower limbs.

41The investigators concluded that given the pinning scenario and the level of force required to move the Mercedes, the compressive forces would have indeed resulted in injuries. The investigators concluded that it is likely that fractures to the kneecaps would have ensued along with possible tibial fractures.

42In the assessing injury probability section, the report stated that had the 10km/h vehicle pedestrian impact occurred, there would have been minor injuries, primarily to the skin but also a 20% chance of skeletal injury. If the pedestrian was allegedly pinned, then the damages would have been more significant. As a result, the investigator concluded that it was likely that a pedestrian was never pinned between the two vehicles.

43In its conclusion, Roar Engineering found that it is highly unlikely that someone could have avoided significant injury when pinned between these two vehicles.

44I accept Dr. Morris’s opinions. He obtained his Ph.D. in aerospace engineering at the University of Toronto. Dr. Morris’s career began with rehabilitation engineering and biomedical engineering post-graduate work and research at various Toronto-area hospitals before moving into forensic engineering in the areas of accident reconstruction.

45Upon review of the reports and on a balance of probabilities, I find sufficient evidence, that it was unlikely that a pedestrian was pinned between the two vehicles.

46Dr. Morris did not inspect the vehicles involved in the accident. He based his opinion on photographs of the vehicles, the accident report, the statement of the applicants, the examination under oaths, the VIN histories for the vehicles and their damage appraisals.

47During cross examination, the applicants questioned how accurate Dr. Morris’s opinion on the impact between the Audi and the Mercedes could be given that did not conduct a physical inspection of the vehicles involved. In his testimony, Dr. Morris testified that it is common practice in the industry to complete an accident reconstruction without a physical inspection. Dr. Morris indicated that he completed about 75-80 accident reconstructions in this manner and was comfortable doing so.

48There was no expert opinion presented by the applicants to question or refute Dr. Morris’s opinion.

49The applicants also submit that little weight be given to Dr. Morris’s opinion because he did not have the black boxes from the vehicles.² Dr. Morris attempted to get the black boxes from the Audi and the applicant’s vehicle but found that the black boxes did not record any data. Dr. Morris’s evidence was that even though a black box is helpful, it is not essential to prove that the occurrence of the collision between the Audi and the Mercedes. I accept that Dr. Morris was still able to form his opinion despite the lack of information from any of the black boxes.

Credibility

50Apart from the X.Y.L.’s ankle injury, I find it extraordinary that both applicants have listed identical injuries in their respective OCF-3 Disability Certificates, filled out by physiotherapist Ahmed Afifi, from Total Recovery Rehab Centre.

51First, I find that the applicants provided inconsistent testimony with respect to their impairments.

52In her application for benefits, dated March 30, 2021, X.Y.L. complained of developing pain on her neck, shoulder, back and right ankle. During her EUO, stating at lines 17-20, X.Y.L. complained only of lower back pain and ankle. There is no mention of neck and shoulder pain. Furthermore, the CNRs of Dr. Kris Cheng, dated April 8, 2021, show that X.Y.L. makes no mention of neck, back and shoulder pain. In addition, there is no mention of back and shoulder pain in the CNRs of Dr Cheng, dated November 4, 2021.

53During his EUO, stating at lines 20-22 on p. 64, H.D.C. complained of low back pain. But the CNRs of Dr. Kris Cheng, dated April 8, 2021, show that H.D.C. complained of tension on the top of his head radiating to his neck worse with movement. There is no mention of back pain injury. Yet, in Dr. Cheng’s CNRs, dated November 4, 2021, he notes that H.D.C.’s spine has full range of motion with flexion and lateral rotation.

54Second, I find that although the applicants attended assessments, they did not provide sufficient details and convincing medical evidence regarding treatment.

55During her EUO, stating at lines 12-16 on p. 36, X.Y.L. confirms that the only treatment she received is just “the massage,” and not physiotherapy. I place little weight on X.Y.L.’s self-reporting of pain, as a few sessions of massage were sufficient to treat her ankle, rather than comprehensive treatment such as physiotherapy.

56During his EUO, stating at lines 17-19 on p. 74, H.D.C. confirms that the only treatment he received was a psychologist as the first treatment. The second treatment was “doing the tui na and the cupping.” In his hearing brief, the only evidence that H.D.C. has provided is an OCF-18, dated January 11, 2021, for a psychological assessment and report, supervised by Dr. Sharleen McDowell. This is an assessment, not treatment. Second, at a minimum, the only treatment H.D.C. sought were tui na and cupping, which are alternative in nature. It is not clear how frequent H.D.C. has engaged in these types of treatments and for how long.

57Third, there are inconsistencies in the testimonies from the applicants with respect to the Audi vehicle.

58During his EUO, stating at lines 18-23 on p. 29, H.D.C. testified that his car was struck once by the Audi. But during the hearing, he testified that the Audi was hit 1-2 times. At another time during the hearing, he testified the Audi hit his car 2-3 times at his rear door and panel.

59During her EUO, stating at lines 20-24 on p. 17, X.Y.L. confirmed that “the Audi hit and then hit.” And the third impact was when the Cheng vehicle hit the parked vehicle to the right.

60During her EUO, stating at lines 20-24 on p. 23, X.Y.L. testified that she did not see damage on the Audi. However, during the hearing, on January 9, 2023, she testified that she saw that there was damage done to the Audi.

61There is an inconsistency with respect to the extent of the damage found on the Audi vehicle. Roar Engineering found that the damage estimate performed by the collision shop did not reflect the non-existent damage status of the Audi vehicle found at the scene. Indeed, Roar Engineering reasoned that grille plastic structure is not robust enough to have sustained a 10 km/h impact without crushing damage – the alleged collision scenario necessitated the Audi to be traveling at 10 km/h for the Mercedes to have been pushed counter-clockwise 30 degrees.

62The applicants failed to call corroborating evidence from the driver of the Audi vehicle.

63Fourth, the applicants made misleading statements with respect to witnesses to the accident. During her EUO, stating at lines 15-19 on p. 21, X.Y.L. testified her friends witnessed the accident. During his EUO, stating at lines 13-25 on p. 51, H.D.C. testified that friends and two male waiters from Shinta Japanese BBQ Restaurant witnessed the accident. However, under cross-examination at the hearing, both applicants admitted that witnesses saw the vehicles after the fact.

64Fifth, I draw an adverse inference as H.D.C. went ahead and initiated repairs to his vehicle, despite explicit instructions from the respondent, to wait until after the investigation. As a result, Roar Engineering was unable to examine the true extent of damage done to the vehicle.

65Sixth, I find it extraordinary, that the witness, Hang Yang Li, who despite being pinned between two cars, walked away without any injuries or broken bones. Hang Yang Li testified that he went to the hospital after being pinned between two cars but did not provide any documentation to corroborate the visit or any injury. H.D.C. testified that he never saw the pedestrian pinned between his car and the Audi “but a guy that looked uncomfortable.” Dr. Morris opined that it was implausible that a pedestrian was struck on the raised curb, and then later would be pinned between the Audi and the Cheng Mercedes, several metres away.

66Seventh, I find H.D.C. to be a bad historian, as during the hearing he frequently answered questions with “I can’t remember” and his answers to questions were overall inconsistent. Despite having a Mandarin interpreter, he could not recall basic details and required significant probing. As already highlighted above, H.D.C.’s statements during his EUO were inconsistent with the testimony he gave at the hearing and other evidence.

67When viewed as a whole, the inconsistencies, together with other evidence, cast serious doubt that the accident occurred. As already highlighted, the onus is on the applicants to prove on a balance of probabilities that the accident happened resulting in injuries. Neither applicant submitted any convincing medical evidence to demonstrate that the incident caused any impairments at the hearing, which is requirement under the Schedule for an incident to fit within the definition of “accident”. Based on the above, the applicants were not involved in an accident pursuant to s. 3 of the Schedule.

Costs

68Under Rule 19.1 of the LAT Rules, where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith within the proceeding, that party may make a request to the Tribunal for costs. Costs are also discretionary, not mandatory.

69The respondent claims the $400.00 ($100.00 for each day of hearing) and $600.00 as the insurer asserts that the withdrawal of the issues on Friday January 6, 2023, prior to the videoconference hearing, is unreasonable. This calculation of $1,000.00 is in accordance with Rule 19.6 of the LAT Rules.

70The respondent submits that it is entitled to costs for two reasons. First, the respondent argues that costs should be awarded as time was wasted to prepare for the hearing with multiple issues that was withdrawn at a late stage. Second, the respondent asserts that the applicants were dishonest about the accident from the filing of the LAT application to the case conference stage right up to the LAT hearing.

71While I am sympathetic, I disagree with the respondent’s position. Rule 19 does not apply if a party wishing to recoup payment for another party’s withdrawal of the issues, prior to the hearing.

72When viewed as a whole, the inconsistencies, together with other evidence, cast serious doubt that the accident occurred, pursuant to s. 3 of the Schedule. As already highlighted, the onus is on the applicants to prove on a balance of probabilities that the accident happened resulting in injuries. Neither applicant submitted any convincing medical evidence to demonstrate that the incident caused any impairments at the hearing, which is requirement under the Schedule for an incident to fit within the definition of “accident”. This is separate and apart from the applicants being vexatious, frivolous, or acting in bad faith as it pertains to the proceeding in accordance with Rule 19.

73For these reasons, I decline to make an order for costs.

Interest

74Since no treatment plans or costs are payable, it follows then interest is payable pursuant to s. 51 of the Schedule.

ORDER

75On a balance of probabilities, the inconsistencies found in the applicants’ claim causes me to conclude that the accident was staged for the applicants’ s benefit. Staged accidents are excluded from the “accident” definition. Thus, the applicants are not entitled to the benefits claimed.

76The respondent is not entitled to costs.

77The application is dismissed.

Released: May 10, 2023