Citation: Vecchio v. Unifund Assurance Company, 2023 ONLAT 21-006078/AABS-PI

Licence Appeal Tribunal File Number: 21-006078/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:

Isabel Vecchio

Applicant

and

Unifund Assurance Company

Respondent

PRELIMINARY DECISION

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Micheal Lee, Counsel

For the Respondent: Peter Yoo, Counsel

HEARD: By way of written submissions

OVERVIEW

1Isabel Vecchio, the applicant, claims she was involved in an automobile accident on July 16, 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 benefits by the respondent, Unifund Insurance Company (“Unifund”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issues to be decided are as follows:

i. Was the applicant involved in an “accident”?

ii. Did the applicant wilfully misrepresent the material facts with respect to the application for benefits under s. 53 of the Schedule?

iii. Depending on the outcome of the preliminary issues, is the respondent entitled to a repayment of benefits for $13,947.45 with interest?

RESULT

3The applicant was involved in an “accident”.

4The applicant did not wilfully misrepresent the material facts with respect to her application.

5The respondent is not entitled to a repayment.

ANALYSIS

Background

6On July 16, 2018, the applicant was travelling northbound on Humber Station Road in Caledon, Ontario when she was hit by a dark pickup truck. She called 911 around 2:16p.m. to report the incident. The police attended the scene and interviewed the applicant. They noted that there was minor damage on the vehicle’s bumper. The applicant could not identify the make or model of the vehicle that hit her. Nor did she have the licence plate.

7The respondent submits that the applicant was not involved an in accident due to numerous inconsistencies in her reporting of the accident. Moreover, the evidence demonstrates that the accident could not have occurred as she reported it.

The applicant was involved in an accident

8Section 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.

9An accident that is staged or misrepresented for profit does not constitute an “accident” under the Schedule: Z.J. v. Wawanesa Mutual Insurance Company, 2020 CanLII 12711 (ON LAT) at para. 7.

10The onus is on the applicant to establish that she was involved in an accident.

11In support of its case, the respondent is relying on an engineering report from Darryl Schnaar, P.Eng from Precision Engineering (“Precision”). Mr. Schnarr reviewed photographs of the vehicle, the applicant’s account of the accident and the collision site. Mr. Schnarr concluded that the motor vehicle collision could not have caused the damage to Ms. Vecchio’s vehicle, based on the nature of the damage shown in the photographs of the applicant’s vehicle provided, the applicant’s account of the accident and the collision site. According to Mr. Schnarr:

The crease observed on the rear bumper near the Vecchio Honda's midIine is inconsistent with a rear end collision with a passenger vehicle with a typical front bumper structure. The object responsible for leaving this crease was relatively narrow and extended from below the bottom of the rear bumper cover to a height coincident with the bottom edge of the trunk lid. This type of damage is most often attributable to an impact with a stationary pole. As poles are stationary, this damage could only have occurred while the Vecchio Honda was reversing.

12Mr. Schnarr also noted that there were abrasions on the passenger side rear corner of the vehicle which were directed upward and toward the centreline of the vehicle. A combination of colours was observable within the abrasion. He asserts that had the passenger side corner of the vehicle been damaged in a rear-end collision, little to no abrasion would be expected.

13With respect to the collision orientation and post-impact motion, he found that there was not enough space for the unknown vehicle to have been offset, as it would have had its passenger side tires in the ditch in the moments leading up to impact. As such, the physical evidence and the reported post-impact travel of the unknown vehicle is inconsistent with an offset and/or angled collision orientation. Mr. Schnarr concluded that the physical evidence is inconsistent with the reported circumstances that the vehicle was involved in a hit and run within an unknown vehicle.

14The applicant is relying on a report from Scott P.W. Walters P. Eng and Saad A. Nassar, P.Eng of Walter’s Forensic Engineering Inc. dated October 14, 2022. They queried the National Highway Traffic Safety Administration’s (NHTSA) National Automotive Sampling System (NASS) and Crash Investigation Sampling System (CISS) for Honda Civics sustaining damage on the “back” plan and at a Delta-V of 5 to 20km/h. NASS and CISS also provided photographs of the damage to the vehicles they actually examined. They were of the view that her version of the events where she was struck on the rear was plausible based on the damage to the rear of her vehicle.

15With respect to the series of abrasions that were indicated in the Precision report, Mr. Walters and Mr. Nassar were of the view that the resolution of the photograph (figure 11) that showed these marks was too poor to be able to distinguish the colours and patterns with much certainty. In their view, the blue would be consistent with the letters in an Ontario licence plate or the colour of the licence plate bezel, while the red might be the colour of the striking vehicle.

16They also found that the hard copies of the damage photographs of the rear bumper show that the transfers that appear in the crease near the top edge of the rear surface of the bumper cover appear to be of the same blue or gray colour as the transfers below the right tail lamp. It was their view that the damage to the rear bumper cover of her vehicle would be consistent with it being struck by another vehicle.

17They disagreed with Precision’s opinion that the applicant likely reversed into a stationary pole causing the damage near its midline. They are of the view that if the crease had been caused by striking a narrow vertical object like a pole, there would likely be direct contact damage including transfers along the height of the crease in the rear bumper cover. They relied on a NASS case where a 2000 Toyota Corolla stuck a small tree with its rear. The transfers from the tree can be seen in the crease in the NASS vehicle’s bumper.

18With respect to the pickup truck impact, they pointed out the fact that Precision relied on a 2017 Ford F150. However, there are other pickup trucks whose front bumpers that are lower than a Ford F150. They noted that the applicant mentioned that she was struck by a vehicle that was like a pickup truck, but she never identified the type of vehicle. Moreover, they opined that if the striking vehicle braked prior to striking the rear of the applicant’s vehicle, even if it was a pickup truck, there would be a likelihood that the striking vehicle’s front bumper would strike the rear bumper of the applicant’s vehicle.

19As for the large lateral component of force applied to the rear of the applicant’s vehicle, they were of the view that the applicant’s vehicle must not have received an impact that contained a significant lateral component. The collision was longitudinal, and her vehicle could only have been struck from behind by a vehicle that was relatively aligned and traveling in the same direction. In this case, the lateral speed change experienced by the applicant was likely relatively low such that it may have only shifted a minimal amount laterally while she was able to maintain control and did not leave the travelled portion of the roadway.

20Additional rebuttal reports were filed by both parties. In his rebuttal report dated December 12, 2022, Mr. Schnarr distinguished the findings of Mr. Walters and Mr. Nassar. He concluded that it was unlikely that the applicant’s vehicle was involved in a single rear-end collision with a “pickup truck” or similar vehicle as reported by her. Rather, he asserts that her vehicle was likely involved in two separate impacts, one involving a stationary pole and one causing the smear that did not likely involve another motor vehicle.

21In their rebuttal report dated January 4, 2023, Mr. Walters and Mr. Nassar pointed out that Mr. Schnarr did not indicate what caused damage to the right quarter panel apart from it not being caused by a vehicle. Nor did he indicate how similar coloured blue or gray transfers in the crease and those below the right tail lamp could have been left. They also noted that Mr. Schnarr does not appear to disagree that a crease in the rear bumper could be caused as a result of a rear impact from another vehicle and that there could be a space between the transfers or contact marks and the crease. They also pointed out that the applicant did not report two different impacts or that she hit a pole.

22The challenges faced by all of the experts involved in this case are three-fold. Firstly, none of them physically inspected the vehicle because the vehicle had been sold by the respondent. Inspecting the vehicle would have provided the experts with a better understanding of the mechanics of the accident. Secondly, both parties agree that it was difficult to discern the photographs that had been provided. They were unable to be enlarged. Higher resolution images would have assisted the experts on both sides. Finally, the make and model of the vehicle that hit the applicant is unknown. Without this information, the experts are essentially relying on hypothetical situations given the circumstances of this case.

23In balancing the evidence, I am not persuaded by Mr. Schnarr’s opinion for the following reasons. His opinion is inconsistent. In his first report, he found that the applicant likely reversed into a stationary pole causing damage near its midline. He then changed his opinion in his rebuttal report and concluded that the vehicle was involved in two separate impacts, one involving a stationary pole and one caused the smear that did not likely involve another vehicle. It is unclear what he relied on to come to this conclusion and how he came to this conclusion.

24He also stated that “it has already been established that the crease and hood displacement was caused by an impact with a stationary pole.” However, he has not provided evidence that substantiates this conclusion. Similar to the applicant’s expert witnesses, he could have provided images that show the impact of a Honda Civic hitting a pole. This would have assisted the Tribunal in coming to a determination as to whether she hit a pole or was hit by another vehicle. Moreover, he could have provided an in-depth analysis of how hitting a pole would result in the damage that was seen in the pictures. In my view, his analysis was lacking.

25With respect to his findings under the “Expected Vehicle Damage” section in his initial report, he reproduced a photograph of a Chevrolet Malibu which sustained such an impact in support of his position. In my view, a Chevrolet Malibu is not the same make as a Honda Civic.

26Moreover, given that the images of the vehicle were difficult to discern, it raises the question how he arrived at the conclusions that he did regarding the damage to her vehicle.

27I prefer the report from Mr. Walters and Mr. Nassar. They used the National Highway Traffic Safety Administration’s (“NHTSA”) National Automotive Sampling System (NASS) and Crash Investigation Sampling System (“CISS”) for Honda Civics. They compared the applicant’s damage patterns to similar rear end collision dynamics from other real-world collisions where damage to the rear of a Honda was caused by impact with another vehicle. They found that her version of events was plausible. Moreover, their report addressed Mr. Schnarr’s conclusion regarding the applicant hitting a pole and opined that there would likely be direct contact damage including transfers along the height of the crease in the rear bumper cover. They even provided images to support this.

28On a balance of probabilities, I prefer the applicant’s expert reports because it consisted of a more objective analysis whereas Mr. Schnarr’s analysis was more subjective.

Adverse inference

29The applicant requests that the Tribunal make an adverse inference, as the most important piece of evidence – her vehicle, was in the hands of the Respondent, the loss was approved and paid and then subsequently sold to a third party for financial gain. She states that, “the Respondent is bringing forth significant accusations that the Applicant materially misrepresented her motor vehicle accident. They knew or ought to have known that Ms. Vecchio’s vehicle was relevant to existing or pending litigation given their extreme position that Ms. Vecchio lied and committed fraud about her accident. Of note, they arranged for the Examination under Oath prior to their Engineering Report.”

30She alleges that there was improper coordination between the Accident Benefits, Bodily Injury (unidentified coverage) and Property Damage departments and their joint efforts in gathering and deciding to deny all claims. The respondent submits that the applicant’s argument does not hold and denies that any improper coordination took place. Moreover, it has no bearing on the issue before the Tribunal.

31I agree with the applicant and draw an adverse inference. The vehicle was a critical piece of evidence given the severe remedy the respondent is seeking. It is unclear to me why it was auctioned off before the experts could inspect it. The respondent has not provided any submissions on this point. I take this to mean that the state of the vehicle did not support the respondent’s position.

Wilful misrepresentation and repayment

32Section 53 of the Schedule allows an insurer to terminate the payment of benefits to or on behalf of an insured person if the insured person has willfully misrepresented material facts relating to the application for benefits. The insurer needs to provide the insured person with a notice which sets out the reason for the termination.

33Section 52 of the Schedule governs the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer,” the insured person or any other person, or as a result of wilful misrepresentation or fraud. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer.

34The insurer shall give the person notice of the amount that is required to be repaid within 12 months after the payment of the amount that is to be repaid unless it was originally paid to the person as a result of wilful misrepresentation or fraud. The respondent bears the burden of proving that the benefits were paid to the applicant as a result of wilful misrepresentation or fraud, on a balance of probabilities.

35The Tribunal has adopted the Black’s Law Dictionary definition of “misrepresentation” as “any manifestation of words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts” (17-000272 v. T.T., 2017 CanLII 87539 (ON LAT) (17-000272) at paras 21-22). In 17-000272, the Tribunal has also held that remaining silent or failing to report can constitute wilful misrepresentation (para. 28). I agree with this interpretation and apply it here.

The applicant’s inconsistent reporting of the “accident”

36The respondent points out four inconsistencies in the applicant’s reporting of the accident:

i. The respondent submits that the applicant stated that she had been travelling at about 80 km/hr at the moment of impact. However, at the Examination Under Oath (“EUO”), she testified that she was travelling “very slow” and estimated her speed at 50km/hr. In terms of her speed, while she provided an estimate, she also stated that she did not know. At the EUO, she mentioned that she was in shock. The frailty in her evidence appears to be consistent with the ambivalence in her EUO testimony.

ii. She informed the police officers that she was heading to the bank when the collision occurred. However, at the EUO, she testified that she was on her way to get a cake for her mother’s birthday. I do agree that she reported two different things. But I do not find this to be significant because it has no bearing on the mechanics of the accident.

iii. In her 911 call, she stated that the vehicle was “like a pickup” and that “it was black or dark grey, I don’t know.” She also told the police offer that she saw something big drive past her on the left through oncoming traffic and described the vehicle as big. At the EUO, she testified that she did not know what vehicle collided with her car and that the vehicle had backed up and kept on going. I reviewed the transcript and note that she did not say that she did not know what vehicle collided with her car.

iv. In her interview with the police officer, she stated that she touched the brakes hard when she was hit from behind. At the EUO, she testified that she was not touching her brakes when struck from behind. From my review of the transcript, she was asked how far she had travelled from the time of the impact up to when the vehicle was brought to a stop. She stated, “How would I know that? No, no, I don’t.” The respondent asked, “What I'm getting at is, you know, once you felt this, did you put your brakes on to try to protect yourself.” The applicant responded “After the impact, whatever time happened between that and me applying the brakes, like in shock. I don't know. I didn't look at the clock. I only look at the thing to see what I did, what I can do.

37Based on the evidence before me, I do not find that the applicant was inconsistent in her reporting of the accident. I have reviewed the other evidence that has been submitted and she was consistent in her reporting to various medical practitioners. As such, I am not persuaded by the respondent’s position

38Therefore, I find that she did not willfully misrepresent material facts with respect to her claim.

39As such, the respondent is not entitled to a repayment of benefits in the amount of $13,947.45 with interest.

ORDER

40For all the reasons set out above, I find that the applicant may proceed with her application before the Tribunal.

41The parties will need to contact the Tribunal within 30 days of the release of this decision to schedule a resumption of the case conference. The date of the resumption will be on a date set by the Tribunal.

42The resumption of the case conference will identify the substantive issues, explore settlement and, if necessary, address and finalize the exchange of documents and all details of the hearing on the substantive issues.