Citation: Sandhu v. The Personal Insurance Company, 2023 ONLAT 21-005745/AABS

Licence Appeal Tribunal File Number: 21-005745/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:

Kamal Sandhu

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kevin Lundy

APPEARANCES:

For the Applicant:

Kamal Sandhu, Applicant Ryan Jeffries, Paralegal Robert W. Marlowe, Paralegal Isabel Longo, Observer

For the Respondent:

Justin Beaulieu, Adjuster

Jonathan Schrieder, Counsel

Court Reporter:

Corey Salazar, Victory Verbatim

HEARD: by Videoconference:

May 9, 10 and 11, 2023

OVERVIEW

1Kamal Sandhu (‘the applicant’) was involved in an alleged automobile accident on September 28, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the ‘Schedule’). After The Personal Insurance Company (the ‘respondent’) terminated payment of accident benefits, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

2Pursuant to section 53 of the Schedule, the respondent terminated payment of benefits to the applicant on the basis that the incident on September 28, 2019 was not an “accident” within the definition in subsection 3(1) of the Schedule and that he had wilfully misrepresented material facts with respect to the event. Following a case conference held on November 1, 2021, the preliminary issues were scheduled for a three day videoconference hearing.

ISSUES

3The parties agreed that the preliminary issues in dispute are:

i. Was the applicant involved in an “accident” as defined by subsection 3(1) of the Schedule?

ii. Is the respondent entitled to terminate the payment of benefits because the applicant wilfully misrepresented material facts with respect to the “accident” and his application for benefits under section 53 of the Schedule?

iii. Is the respondent entitled to repayment of the benefits paid to the applicant as a result of his wilful misrepresentation or fraud, pursuant to section 52(1)(a)? If so, what is the quantum of the repayment?

RESULT

4I find that:

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

b. The respondent is entitled to terminate the payment of benefits because the applicant wilfully misrepresented material facts with respect to the “accident” and his application for benefits under section 53 of the Schedule; and

c. The insurer is entitled to repayment of the full benefits paid to the applicant as a result of his wilful misrepresentation or fraud, pursuant to section 52(1)(a) of the Schedule.

PROCEDURAL ISSUES

Exclusion of Witness

5At the start of the first day of the hearing, the applicant sought to exclude Carlee Horan (‘C.H.’) from the virtual hearing room as the respondent intended to call her as a witness with respect to the subject matter of the preliminary issues. While the respondent objected on the basis that C.H. was involved in the adjustment of the file and represented an instructing client, because the latter role could be fulfilled by Justin Beaulieu (‘J.B.’) alone, out of an abundance of caution and to safeguard the integrity of the proceedings as a whole, I agreed with the applicant and excluded C.H. until it was time for her testimony.

The Burden of Proof

6At the beginning of the hearing, the parties disagreed over the appropriate order of evidence. On this issue, I find the analysis in M.D. v. Intact Insurance Company, 2017 CanLII 87155 (ON LAT) (‘M.D.’)as relied upon by the respondent persuasive.

7The applicant initially took the position that the respondent bears the onus to prove both that the applicant was not involved in an accident and that he made a wilful misrepresentation with respect to the events of September 28, 2019. During submissions, he appeared to alter this position slightly, stating that the applicant need only prove that he sustained injuries as the result of an accident. Although I agree that the respondent has the onus of proof to demonstrate a wilful misrepresentation and that it is entitled to seek repayment, I find that the applicant bears the onus to prove on a balance of probabilities that he was injured in an “accident” as defined in the Schedule.

8In M.D., the Tribunal determined that the insured person bears the onus to prove on the balance of probabilities that he or she was involved in an accident. To that end, the adjudicator relied on Shakur v. Pilot Insurance Co. (1990) 1990 CanLII 6671 (ON CA), 74 OR (2d) 673 (Ont. C.A.), in which the Court of Appeal confirmed that the onus to prove entitlement to benefits under a policy does not shift from the insured person.

9I am bound by the Court of Appeal and, accordingly, I accepted the respondent’s submission that the burden of proof to show that the applicant was in an accident in accordance with subsection 3(1) of the Schedule rests with the applicant. As a result, I directed the applicant to present his case first.

Admissibility of Applicant’s Statements to Insurer

10On December 16, 2019, the applicant voluntarily provided a statement to N.M., a representative of the respondent with respect to the circumstances of the collision. The applicant took the position that his statements to the respondent on that date should be excluded as they were given outside the presence of legal counsel and that the respondent knew or ought to have known that the applicant was then represented by counsel.

11I disagree. Pursuant to subsection 15(1) of the Statutory Powers Procedures Act (the ‘SPPA’), the Tribunal may admit as evidence at a hearing any oral testimony and any document or other thing relevant to the subject matter of the proceeding and may act on such evidence, but may exclude anything unduly repetitious. The issues of whether the applicant was involved in accident or wilfully misrepresented material facts with respect to the “accident” are relevant to the present proceeding as well as the respondent’s ongoing duty to adjust the applicant’s file in good faith. As a result, the applicant bears the onus to demonstrate that these statements would be inadmissible in a court by reason of privilege under the law of evidence or they are inadmissible by the statute under which the proceeding arises or any other statute.

12The applicant cannot logically claim that solicitor-client privilege applies to his communications with the respondent as the impugned statements were not between the applicant and his legal representative. Similarly, litigation privilege does not apply since the statements were not made in the context of preparation for litigation between one party and that party’s representative. The applicant cited no provision in the Schedule or the Ontario Insurance Act, RSO 1990, c I.8, that would bar admission of this evidence.

13If the applicant is concerned that the respondent violated his rights under the Canadian Charter of Rights and Freedoms (the ‘Charter’), the Charter is not intended to govern relations between private actors. The applicant has presented no evidence to indicate that the respondent was either a state actor or serving as an agent for a state actor. There was therefore no constitutional restriction requiring the respondent to refrain from asking the applicant questions. The applicant was free to refuse to give his statement until his legal counsel was present. He voluntarily chose not to do so.

14The early phase of the insurer’s response to the applicant’s claim is also a relevant factor. Given that the interview on December 16, 2019 related to the basic facts of the accident including the date, time and location of the collision, it is also questionable how legal counsel could have assisted the applicant with this inquiry.

15The applicant also opposed admission of these statements on the basis that C.H. described hearsay statements between the applicant and N.M., a third party representative of the respondent who did not testify at the hearing. The essential defining features of hearsay are an out‑of‑court statement adduced to prove the truth of its contents in the absence of a contemporaneous opportunity to cross‑examine the declarant. The applicant as the declarant of his prior statements was present throughout the hearing for questioning. As well, the issue was not the questions asked by N.M., but the information that the applicant provided in response to those queries.

16However, even putting these issues aside, C.H. described this initial contact between the parties in the context of the starting point for her own investigation into the specifics of the collision to ascertain whether the applicant’s claims were valid. Her description of the communication was therefore not introduced for the truth of either declarant’s statements but rather for the fact that they were made. In any event, subsection 15(1) of the SPPA expressly permits the admission of any relevant evidence, including unsworn statements.

17Although the printed record of this conversation was undated and unsigned, C.H. testified that it occurred on December 16, 2019. The applicant chose not to challenge this assertion on cross-examination despite the opportunity to do so. As a result, on the balance of probabilities and in the absence of any evidence to the contrary, I accept C.H.’s evidence that this conversation occurred between the applicant and N.M. on December 16, 2019. The applicant also did not suggest that the submitted transcript represented an edited or altered record of the call and I have no other reason to doubt its authenticity.

18As a result, the applicant’s statements to the respondent’s adjuster on December 16, 2019 were admitted.

ANALYSIS

The Collision on September 28, 2019

19I prefer the respondent’s evidence over that of the applicant and find that the applicant failed to demonstrate that he was in an “accident” as defined in subsection 3(1) of the Schedule. Although there is no doubt that the two vehicles involved collided on the evening of September 28, 2019, I agree with the respondent that the applicant wilfully misrepresented material facts with respect to the “accident” and his application for benefits under section 53 of the Schedule.

20On September 28, 2019, the applicant was twenty-five years old and resided in Scarborough, Ontario. He testified that he was the front seat passenger in the vehicle owned and driven by his friend, Umeish Pirabakharan (‘U.P.’), when the accident occurred. The Self Reporting Collision Report (‘CRC report’) completed by U.P. on September 29, 2019 listed his vehicle as a blue 2005 Acura RL sedan. In his CRC report, U.P. stated that he was driving west on Finch Avenue East, past Neilson Road, when he initiated a left turn onto Baldoon Road. U.P. reported that he did not see the oncoming car and that they collided while he was making his left turn. He listed his approximate speed at 5 km/h.

21The applicant testified that U.P. had picked him up minutes earlier and they were driving westbound on Finch Avenue East at Baldoon Road intending to meet friends. He testified that the accident occurred between 9:00 p.m. and 10:00 p.m. The applicant stated that he was not paying attention to U.P.’s driving or the road and was texting on his phone and scrolling through various apps when he heard U.P. say, “Oh shit”; he looked up to see headlights approaching and then felt the impact of the other vehicle on his right side. He could not estimate how fast either vehicle was travelling.

22Finch Avenue East is a two-way undivided roadway in this area with two lanes in the eastbound direction and two lanes in the westbound direction. Baldoon Road is a two-way undivided roadway, oriented in a north-south direction. Baldoon Road intersects with the south side of Finch Avenue at an approximate right angle thereby forming a T-junction. Northbound traffic is controlled by a stop sign at the intersection with Finch Avenue East, while no traffic control devices are present for traffic on Finch Avenue. The parties agreed that this accurately represented the layout of the intersection on the evening of the collision.

23The applicant testified that U.P. was attempting to turn left onto Baldoon Road when the other car struck them but he did not notice the other vehicle prior to the collision. He denied that U.P. was going straight at the moment of collision and recalled feeling the car moving to turn left. He repeatedly described the accident as extremely quick. He recalled striking the interior of the vehicle with his body and that the airbags deployed. He testified that he got out of the car and moved to the curb to determine his injuries. He denied examining the damage to the vehicles as neither was his property and he was more focussed on his own injuries. Under cross examination, he recalled observing fluids leaking from one or both of the vehicles as he sat on the adjacent sidewalk while checking himself for injuries.

24He testified that he contacted his brother who picked him up after approximately fifteen to twenty minutes. He was the first person to leave the scene and was not present to witness what happened to either vehicle. He did not contact the police or other emergency services, deeming the accident insufficiently serious to warrant such intervention. The drivers also apparently did not call the police or emergency services either as none attended at the scene. He denied knowing Suhaib Khalid (‘S.K.’), the driver of the other vehicle or observing any details of this car at the time, believing only that it was black. He testified that he later learned that the other vehicle was a “high end” Maserati. Other uncontested documents confirmed that S.K. was driving a 2017 Maserati Gran Turismo GT coupe.

25Although the present hearing was held more than three years after the accident, the applicant’s recollections much closer in time to that night included a striking lack of detail, as well some false details. Under cross-examination, he was unable to recall numerous details of the events of September 28, 2019 and offered inconsistent evidence on many that he could recall. For instance, he was emphatic that the accident took place on a Friday as he and U.P. were going out to meet with mutual friends. In reality, September 28, 2019 was a Saturday. He also told the respondent that that the accident occurred between 8:00 p.m. and 10:00 p.m. He could not offer any explanation for the disparity between this rather wide range and U.P.’s statement on his CRC report that the accident occurred at 11:20 p.m.

26The applicant denied any knowledge of the history of U.P.’s car including how long U.P. had owned it, recalling having been in the vehicle only three or four times previously. He denied knowing if the Acura had been involved in any prior accidents.

27I agree that it would be reasonable for a passenger to be uninformed regarding the detailed history of his friend’s vehicle let alone that same vehicle’s accident history before his friend acquired it. As well, his recollection of the time of the accident as it differed markedly from that of U.P. and S.K. in and of itself could simply be an innocuous anomaly, since on his own evidence, he was not paying attention to the details of the journey until it ended in a collision. However, the applicant’s lack of knowledge extended to more seemingly basic details of the circumstances of the events of September 28, 2019.

28In the applicant’s telephone statement to N.M. on December 16, 2019, he stated that the nearest major intersection to the site of the accident was Neilson and Finch. At the hearing he reiterated that Baldoon Road is not a major intersection. However, he twice described the nearest intersection as Tapscott Road at his examination under oath on January 12, 2021. He also mentioned Tapscott Road and Baldoon as the intersection where the accident occurred to Christina Kovacic Johnston, an occupational therapist during an assessment on July 7, 2020. At the hearing, he explained that the interviewer must have asked for the closest major intersection then made an error in her report.

29The applicant was also interviewed on July 28, 2020 by Dr. Rakesh Ratti, a psychologist hired by the respondent to conduct a psychological assessment. Dr. Ratti wrote the following in his report with respect to the applicant’s description of the accident:

He reported that they were on route to another friend’s home and the Acura was traveling on Baldoon Street. He stated that his vehicle was making a left turn onto Finch Avenue when an oncoming car struck it on the passenger side.

30The applicant could not offer any explanation for this reversal of the streets, speculating that Dr. Ratti “got it wrong perhaps.” The applicant called none of these individuals to testify in support his submission that they all somehow erred in recording this detail of his account. Complicating the matter further, S.K. stated in his CRC report that he was driving eastbound on Finch approaching Crow Trail. At the hearing, the applicant agreed that Crow Trail does not intersect Finch Avenue East.

31The applicant denied knowing U.P.’s surname and was unclear on the spelling and pronunciation of his first name. He was also evasive with respect to where U.P. resided, stating that “he lives within the community,” later offering a major intersection near his house but denying ever attending at his residence. He initially denied knowing if U.P. resided in Oshawa, but subsequently acknowledged this fact when presented with U.P.’s address on the latter’s CRC report.

32The applicant was also evasive with respect to the identities of the individuals he and U.P. were on their way to meet and appeared highly reluctant to offer any details on the circumstances of the intended gathering. After considerable deflection, he ultimately stated that he and U.P. intended to meet up with friends at a mechanic’s shop near one friend’s house. Despite stating that he and U.P routinely congregate at this shop with others, he was evasive regarding who owns the shop and asserted that the business has no name, only reluctantly conceding the name of the alleged owner and explaining that this person permits assorted young men in the area to congregate at his shop after business hours. He offered only the first names of “Bob, Frank and Thomas” as some of the mutual friends he and U.P. intended to meet that night. He later stated that he and U.P. intended to meet first at “Tom’s house” before the intended party and offered conflicting evidence with respect to the location of this residence. It was unclear on his evidence if the meeting at Tom’s residence had occurred or was to precede or follow the gathering at the mechanic’s shop. None of these individuals or U.P. testified at the hearing to clarify or confirm this evidence.

33The applicant testified that the airbags in the Acura deployed but could not recall their location within the car. He described the deployment as very quick but not a huge explosion and attributed this to the age of the vehicle. Notes from Scarborough General Hospital also confirmed that the applicant had stated that the airbags had deployed. However, photographs of the Acura contradicted this testimony as the images show no sign of deployed air bags in the vehicle after the collision.

34When asked to describe where the damage to the Acura was concentrated, the applicant insisted that it was “in the middle,” apparently meaning the middle of the passenger side. He maintained this position through his initial communications with the respondent, at the examination under oath and during his direct testimony. However, when shown the photographic evidence at the hearing, he changed his evidence to agree that the damage was concentrated to the front of the car.

35The applicant’s evidence at the hearing also differed from his statements at the examination under oath in other respects. For instance, while he testified at the hearing that he had been diagnosed with anxiety within the year prior to the accident and described being admitted to a psychiatric ward for several days, at the examination he denied any psychological issues. At the hearing, he attempted to explain this inconsistency by stating that he believed that the interviewer had asked about physical issues. He acknowledged that he made no effort to clarify any apparent confusion. He also denied bracing for the impact at the examination under oath but described doing so at the hearing. He could offer no cogent explanation for his apparent greater recall of details over three years later, repeating only that the accident was quick.

36The applicant testified that he sustained injuries from the accident including pain the right side of his body, a bruise to his right knee, head trauma and pain to his neck, back and right shoulder. He also described experiencing dizziness and nausea following the accident. He acknowledged that he had a pre-existing injury to his right shoulder caused by sports activities, but no other prior physical health issues at all before the accident. In addition to recurring pain in his back, leg and shoulder, he testified that he experienced a “mental block” over being a passenger in someone else’s vehicle and that it took some time to recover from this issue.

37The applicant attended at Scarborough General Hospital on September 29, 2019 to address his dizziness and nausea as well as pain in his back, right knee and right shoulder and whiplash symptoms that began that morning. Hospital records confirmed that the applicant was examined for his upper extremity pain complaints and that the examination concluded approximately thirty minutes later. He was advised to follow up with his family doctor. No diagnostic images were taken and he was not given or prescribed any medication. He did not return to the hospital. Although he testified at the January 12, 2021 examination under oath that he sustained a “lump” to his head, no images of this lump were included in the evidence.

38The applicant saw Dr. Aruna Lanborthan, his family doctor, approximately one week later and described the accident to her. Like the hospital staff, Dr. Lanborthan recommended that he attend physiotherapy to address his symptoms. He attributed his small number of follow-up visits to restrictions in early 2020 related to the COVID-19 pandemic. However, Dr. Lanborthan referred the applicant for diagnostic imaging, none of which revealed any issues of significance.

39Dr. Lanborthan’s handwritten notes titled “accident follow up” recorded some ambiguity with respect to the date of the accident as having occurred on either September 28 or 29, 2019. At the examination under oath, the applicant noted that his doctor did not believe him with respect to his claims of memory loss. At the hearing, the applicant could not offer any explanation for his doctor’s disbelief but chose not to call her as a witness to clarify this issue.

40The applicant opted to attend for physiotherapy at Gibson Wellness Centre independent of his doctor’s advice as it was his understanding that many people in car accidents use this company. He speculated that U.P. may have recommended Gibson Wellness as he also attended physiotherapy there following the accident.

The Respondent’s Investigation

41On the advice of his parents, the applicant filed an application for medical benefits roughly three months after the collision. The insurer opened its file shortly thereafter on December 16, 2019 and referred the matter to its Special Investigations Unit (‘SIU’) to validate and investigate the applicant’s version of events.

42C.H. has been an investigator for Desjardin Insurance’s SIU and has investigated automobile accident benefits and damage claims for eleven years. She reviewed the initial “facts of loss” call between the applicant and the original adjuster from December 16, 2019 in which the applicant described the circumstances of the collision. In this statement, the applicant had expressed uncertainty with respect to whether the collision occurred on September 28 or 29 and offered a range from 8:30 p.m. to 10:00 p.m. when it may have occurred that night. He also stated that the airbags deployed and that the damage was sustained primarily on the right side of the vehicle. He also stated that he braced for the impending impact. When N.M. had requested U.P.’s contact information, the applicant referred her to Gibson Wellness to obtain this information. C.H. noted the discrepancies between the time and implied location of the collision between the applicant’s statement and the CRC reports as well as the spelling of U.P.’s name. More importantly, the photographic evidence of the damage to the vehicles appeared to conflict with the applicant’s account of how the impact had occurred.

43Significantly, the drivers’ CRC reports stated that both vehicles were towed from the scene on September 29, 2019 by the same towing company, VIP Towing. A corporate search revealed that this company was owned by S.K., the driver of the Maserati. C.H. also conducted a background history of the vehicles through their Vehicle Identification Numbers and Carfax reports to determine whether either vehicle had been involved in prior accidents. This inquiry revealed an indication of prior salvage for the Acura when it was registered to Security National Insurance on March 3, 2018. In other words, U.P.’s Acura had been deemed a total loss due to a prior collision roughly nineteen months before the present event.

44The VIN history also indicated that immediately prior to its transfer to U.P. in February 2019, the owner of the Acura was Tommy Wasiu Ajirotutu. This was apparently one of the people the applicant claimed that he and U.P. were going to visit on the night of the collision. An open source search of Mr. Ajirotutu’s name produced an article indicating ties to an organized crime group investigated jointly by the O.P.P., Durham Regional Police and Toronto Police Service with respect to credit card fraud and the seizure of numerous fraudulent credit cards. C.H. explained that the prior owner’s character and activities were relevant to her investigation as the SIU searches for potential connections between owners and drivers of vehicles involved in suspicious collisions. The Carfax report further indicated that the Acura had an extensive history of past damage and had been involved in four reported accidents prior to the September 28, 2019 collision. The Carfax report indicated that the second of these incidents in May 2009 involved left front damage similar to the present collision.

45Photographs taken by a salvage parts retailer in December 2019 showed that the exterior and interior of the Acura vehicle were in very poor condition, including the front passenger area. Given its condition following its encounter with the Maserati, C.H. described the Acura as a “junker.” As for the background of the Maserati, another Carfax report referenced prior damage estimated at $205,060.00, incurred on or about August 8, 2018.

46C.H. also reviewed various medical documents in the course of her investigation, including clinical notes and records from Scarborough General Hospital. As in his initial call to the adjuster, the applicant provided a general description of the event and stated that the airbags in the Acura had deployed. C.H. confirmed that the photographic evidence indicated that airbags in neither vehicle had in fact deployed. With respect to the applicant’s attendance at the hospital following the collision, C.H. noted that he may have done so not out of genuine medical need but rather to support his claim that the accident had actually occurred and that he had been present.

47The circumstances of the collision offer more reliable evidence with respect to whether the accident occurred as reported. To that end, the three section 44 examinations conducted in July 2020 highlighted the disparities between the applicant’s report and the photographic evidence of the damage to both vehicles. In the occupational therapy report dated August 12, 2020, the applicant again emphasized that the damage was primarily to the passenger side of the Acura where he stated he was the passenger. In the physiatry report of the same date, the applicant stated that U.P. was making a left turn when his vehicle was struck by the other vehicle on the passenger side with no secondary collisions and that the air bags deployed. In the psychological report also dated August 12, 2020, the applicant offered a similar account stating that the accident occurred at approximately 9:45 p.m. In this version, he reversed the streets involved stating that U.P. was driving on Baldoon Road, turning left onto Finch Avenue East when it was struck by the other vehicle primarily on the passenger side of the vehicle and with no secondary impact.

48In light of these discrepancies, the respondent opted to conduct an examination under oath on January 12, 2021. Again, the applicant estimated that the collision occurred between either 8:00 p.m. and 10:00 p.m. or 8:00 p.m. and 9:00 p.m. He stated that U.P. was driving north on Finch Avenue East at Baldoon Road near Tapscott and that U.P. was midway through a left turn when his vehicle was struck by the Maserati driving southbound on Finch. As noted above, Finch Avenue East runs east to west. During the course of the examination under oath, he initially stated that he braced for the impact upon seeing the Maserati’s headlights but later denied bracing. He did not recall feeling the Acura stop prior to the collision. He recalled that the Acura’s air bags deployed and believed that he may have been struck by them. When asked by the examiner which part of the Acura was struck, he replied as follows:

The front, the front part, like the front right side, I guess, the way I'm sitting, like the middle of the Acura, the middle front, and then to the right side, if you're looking at it through my eyes and the passenger.

49The applicant advised that a friend had referred him to Gibson Wellness but did not disclose the name of this person. He stated that he did not tell the friend any details regarding how the accident had occurred.

Forensic Engineering Investigation

50The next stage of the respondent’s investigation involved retaining an engineer to complete an accident reconstruction to determine if the collision happened as the applicant reported. An expert analysis would be necessary to reconcile the apparent inconsistencies between the details of the accident as maintained by the applicant and the physical damage sustained to the Acura. As well, the respondent sought clarity on whether the Acura was indeed turning when it was struck by the Maserati and whether this could lead to the damage to the vehicles according to the descriptions in the CRC reports. To that end, the respondent retained Jenish Forensic Engineering (‘Jenish’).

51William Jennings (‘W.J.’) is a forensic engineer employed by Jenish, retained by the respondent to reconstruct the collision based on the available information and to comment on whether the damage to the vehicles was consistent with the collision as reported. The investigation was based on an examination of the Maserati on January 10, 2020 and a review of various documentation, including the CRC reports prepared by both drivers. The examination of S.K.’s vehicle on January 10, 2020 included downloading the electronic crash data stored in that vehicle’s event data recorder (‘EDR’). Direct inspection of the Maserati was possible as C.H. was able to locate it at a salvage facility.

52Although U.P.’s vehicle was not available for W.J.’s examination at the time of his investigation, he was provided with colour photographs of the damaged vehicle. He also relied upon the physical evidence and the drivers’ CRC reports rather than social media posts or the applicant’s various statements. The Acura exhibited moderate damage to the front end, consistent with an offset impact to the left front surface. The photographic evidence confirmed that none of the airbags in the Acura had deployed as a result of the reported collision.

53S.K.’s Maserati appeared to have been in good condition prior to the accident. The vehicle exhibited moderate damage to the left front surface, consistent with an offset frontal impact, along with additional damage throughout the left side, consistent with a glancing sideswipe-type impact to that area. The left surface of the plastic front bumper cover was fractured and scuffed, while the left half of the underlying front bumper reinforcement structure was damaged. Blue paint transfer was evident on the left front corner of the bumper cover, approximately sixty centimetres to the left of the vehicle centerline. The leading edge of the left front fender was lightly crushed and abrasions spanned rearward throughout the side of the fender and through the left side door and quarter panel. The sides of the door panel and quarter panel were scraped and gouged, with two large tears evident. None of Maserati’s airbags were observed to have been deployed.

54Downloaded data from the Maserati’s EDR included two event records, with only the most recent event being related to the reported collision. S.K. indicated in his CRC report that he was travelling eastbound at a speed of about 55 km/h when the Acura turned suddenly into his path. He further indicated that he swerved to the right but was unable to avoid the collision. As a result, he reported that the Maserati collided with the Acura and then struck a curb.

55According to the EDR data, the Maserati’s speed on approach was initially about 58 km/h, consistent with S.K.’s reported speed, with the vehicle then slowing gradually over the next three seconds to a speed of about 51 km/h. During the final two seconds prior to impact, the vehicle slowed further to an impact speed of about 32 km/h, using only moderate braking during that time. There was no evidence of any sudden emergency level braking in the final moments prior to impact. Furthermore, throughout that same time frame, the steering angle data varied only marginally from the straight ahead position, with no evidence of any sharp swerve to the right, as reported by S.K.

56Upon review of the photographs of the damage to the Acura, physical examination of the Maserati and its downloaded EDR data, W.J. concluded that the damages were consistent with the front of the Maserati striking the front of the Acura in an angled and offset collision. It was also evident that the damage along the side of the Maserati was consistent with contact to the left front side of the Acura.

57There was no indication of a loss of power to the EDR or that it failed to record the entire collision. The EDR records ignition cycles of at least eleven seconds and there was only a thirteen kilometer difference between the event on September 28, 2019 and the odometer reading when W.J. inspected the vehicle. With respect to collisions, the EDR only records significant events. Although W.J. could not state when power to the air bag deployment module was lost, there was no evidence of any subsequent significant event recorded in the EDR data.

58Given the damage to both cars, W.J. concluded that the vehicles came together with the left front surface of the Maserati colliding with the left front surface of the Acura. Following that initial impact, it appeared that the vehicles then came together again, with the left side of the Maserati scraping along the left front side of the Acura. Furthermore, given the pattern and areas of damage evident to both vehicles, he stated that they collided almost head on and offset to the front left for both, followed by secondary contact in which the left side of the Acura struck the Maserati’s left side at a comparatively shallow angle in a glancing impact that caused the Acura’s left side to scrape across the left side of the Maserati.

59The EDR data from the Maserati was therefore not consistent with the collision scenario as reported by the drivers or the applicant. The data indicated that there was no apparent attempt to avoid the collision, while further indicating that there were no sudden responses by the driver of the Maserati. The pre-crash data contradicted S.K.’s reported description of travelling at 55 km/h when the Acura suddenly turned in front of him. Instead, the data indicated that the driver of the Maserati gradually slowed from an approach speed of 58 km/h to an impact speed of 32 km/h, while failing to swerve to the right, as he claimed. Had S.K. truly not seen the Acura and had only one second to react as he claimed, his speed at impact should have been closer to the initial speed of travel and there would have been no signs of more gradual breaking in the five seconds prior to the collision, particularly as there were no traffic lights at the intersection to otherwise prompt him to slow down. Although W.J. acknowledged that S.K. could have been slowing for a traffic signal, significantly, he did not state this in his CRC report. As well, this possibility appears unlikely since while the intersection to the east of Baldoon Road is controlled, there are no traffic signals where it intersects Finch Avenue East.

60While I agree that if the Maserati struck the Acura while the latter was in the process of turning left as the applicant stated, from his perspective upon seeing the approaching vehicle, he may have reasonably believed that the subsequent impact would land on the right side of the Acura. However, his alleged perception in that moment does not correspond with the resulting physical evidence. As W.J. explained, the damages to both vehicles were not consistent with that expected, given the described collision scenario and that the EDR data indicated that the collision did not occur in a manner consistent with that reported. Specifically, the extensive damage to the left side of both vehicles was inconsistent with the offset collision described.

61As for U.P.’s version of events, in his CRC report, he indicated that he was turning onto Baldoon Road and that he simply failed to see the Maserati approaching from the opposite direction. While he listed a reported speed of 5 km/h, this speed appeared to be unusually low given the reported collision scenario. As W.J. explained, the Acura’s reported speed of only 5 km/h was less than that of a typical adult walking speed. Had U.P. actually failed to observe any approaching vehicles, it would be unusual for him to slow to a near stop, rather than making a smooth left turn at a normal speed of approximately 23 to 25 km/h given the layout of the intersection.

62Furthermore, given the damage patterns evident to both vehicles and the front offset impact orientation, W.J. reasoned that the collision should have occurred within the left eastbound through lane of Finch Avenue East, assuming that the collision occurred at the reported location. Had the Maserati been travelling in the right lane, the expected angle of the Acura at impact was not consistent with the observed damage patterns to both vehicles. At the above normal turning speed, it was evident that the Acura would have only taken about a second to cross from the roadway centerline to the approximate area of impact with the Maserati.

63At a forward speed of 15 to 20 km/h for the Acura pursuant to the expected minimum turning speed, the collision would therefore have been substantially more severe than was recorded by the EDR in the Maserati. This analysis indicated that a likely minimum impact speed change of about 22 km/h would have been expected for the Maserati, compared to a recorded impact speed change (delta-V) of just 16 km/h. This result was based on an impact speed of 32 km/h for the Maserati, per the EDR data. Had that vehicle been travelling at 55 km/h, as reported, the impact would have been substantially more severe. Furthermore, W.J.’s analysis also indicated that there should not have been any secondary contact between the sides of both vehicles had S.K. steered to the right as he reported.

64Crash simulations indicated that the collision did not occur as described as there should not have been contact between the left side of the Maserati and the left front side of the Acura. Furthermore, the severity of the collision should have been much greater, at a level at which deployment of the airbags would likely have been expected in both vehicles. W.J. explained that the threshold for airbag deployment is typically between 15 and 20 km/h. The 16 km/h for the Maserati as recorded by its EDR rests at the borderline, where the airbags may or may not deploy.

65W.J. described his own direct observations of airbag deployment as a very fast and loud event, contrary to the pillowy experience often described in popular culture. This violent event is accompanied by an explosive release of the powder that permits the bag to open as well as a noticeable odour from the propellant’s chemical change from solid to gas upon deployment, a smell that would thereafter permeate the entire vehicle. The applicant’s vague description of the deployment lacked any of these details and he later conceded during closing submissions that the airbags in the Acura did not in fact deploy.

66W.J. simulated the collision again in order to determine the likely speed of the Acura and the driver actions for the Maserati. This additional analysis indicated that U.P. was very likely stopped when his vehicle was struck by the Maserati in order to have resulted in an impact speed change of just 16 km/h. Furthermore, the level of damage evident to both vehicles was consistent with this assessment. Had the Acura been moving forward at any significant speed, much greater damage would have been expected in correlation with the higher expected impact speed change values. This additional analysis further indicated that the driver of the Maserati would have likely steered slightly to the left, toward the Acura, following the impact, thereby causing the Maserati to continue to scrape along the left side of the Acura. W.J. conceded that it was possible that U.P. could have been executing an unusually slow left turn when impacted; however, S.K. failed to mention any unusual driving by the Acura prior to the collision. Similarly, there was no evidence that either driver was on his phone or otherwise distracted when their vehicles collided.

67As a result, W.J. concluded that although there was no doubt that the collision occurred, it did not occur as reported. The available evidence indicated that the Acura was likely stopped when it was struck by the Maserati. With the Acura fully stopped at impact, W.J.’s analysis indicated that it would have been pushed slightly rearward upon impact. Furthermore, the driver of the Maserati did not steer away from the Acura to the right as reported. Rather, EDR data contradicted the statements of both drivers and the applicant as it showed that S.K. steered slightly to the left towards the Acura, thereby causing the secondary contact between the left sides of both vehicles, contrary to his CRC report that he swerved to the right in the final instant prior to the accident.

68Although W.J. reviewed the Carfax report on the Maserati that indicated the prior accident, he did not list this document in his forensic report dated April 3, 2020. He explained that the information in the Carfax report was not relevant to the purpose of the report, specifically to determine whether the damage to the vehicles was consistent with the collision as reported. To that end, although both vehicles had been involved in prior collisions, there was no indication that the subsequent repairs were inadequate or that some unresolved defect affected the performance of either car.

69The applicant noted that W.J. had failed to mention the reversed polarity as reported by the Maserati’s EDR in his report. If the polarity reading in the data were to accepted as negative as displayed by the EDR, this would suggest a rear end collision, not apparent in the physical damage to either vehicle or the reports of either driver. W.J. explained that some car makers, including Maserati and Nissan, often display reversed polarities in their data recordings. This does not detract from the accuracy of the figures recorded, only that the minus sign should be disregarded as spurious. There was also no evidence submitted to suggest that the data from the EDR had been manipulated or was inherently suspect due to the presence of the erroneous negative sign.

70W.J. added that the negative polarity anomaly is well known in the forensic engineering community as he is a member of an online forum where this issue has been discussed. However, I find no error in W.J.’s choice not to mention this forum in his report as there was no indication that he discussed this specific investigation with other engineers, let alone that their views had any impact on his findings.

71Although W.J. did not mention damage to the right front corner and wheel of the Maserati caused by striking a curb following the impact in his report, at the hearing, he explained that this damage was indeed consistent with a curb impact. W.J. agreed that if U.P. had taken an unusually wide left turn when struck, this may have accounted for the otherwise unexpected damage to the Maserati. However, while possible, this hypothetical scenario is not supported by the other evidence since neither driver nor the applicant mentioned any unusual driving on the part of U.P. I also find that the applicant raised no evidence to contest W.J.’s position that the curb damage to the Maserati was consistent with his analysis of the collision.

72A clerical error with respect to the incorrect retainer date on W.J.’s report also does not detract from the content of the report or the credibility or reliability of his evidence. It simply indicates that his proofreading regarding a trivial administrative notation was not perfect. As well, the respondent’s failure to submit the Acknowledgement of an Expert’s Duty for W.J. until after the hearing had concluded in no way invalidates his testimony. The applicant was free to explore his theory of bias under cross-examination but chose not to do so. Moreover, the applicant chose not to call his own engineer to dispute W.J.’s findings and conclusions.

Sufficiency of the Section 53 Notice

73As a result of these findings, C.H. concluded that the accident on September 28, 2019 was likely staged. On March 3, 2021, J.B. advised the applicant by letter that it refused his claim for medical benefits for the following reasons:

Specifically, our investigation concluded that you have wilfully misrepresented material facts with respect to your application for Accident Benefits under section 53 of the Statutory Accident Benefits. Based on our investigation it is our belief that the incident you allegedly were involved in on September 28th 2019 did not occur as reported. Based on the review of your recorded notice of loss call on December 16th 2019, your Application for Accident Benefits (OCF-1) dated December 10th 2019 and January 10th 2020, your evidence provided at your Examination Under Oath on January 12th 2021, review of the Collision Reporting Centre Reports by the driver of the vehicle you were allegedly in and third party driver both dated September 29th 2019, and the Forensic Engineering Report which included examination of damage photos of both vehicles, review of the reported facts of loss by both drivers and yourself, and CDR data downloaded from the third party vehicle, it has been determined that the accident did not occur as you reported.

74Pursuant to section 53 of the Schedule, an insurer may only terminate the payment of benefits to or on behalf of an insured person,

(a) if the insured person has wilfully misrepresented material facts with respect to the application for the benefit; and

(b) if the insurer provides the insured person with a notice setting out the reasons for the termination.

75The applicant takes the position that the notice provided on March 3, 2021 was invalid for vagueness as it offered no clear explanation that would allow the applicant to understand why his claim was being refused.

76The applicant relies on caselaw related to sufficiency of reasons given in other notices such as those required under subsections 38(8) and 44(5) of the Schedule and took the position that the same standard should be applied to reasons for refusal of coverage under section 53. Indeed, as the Ontario Court of Appeal noted in Turner v. State Farm Mutual Automobile Insurance Company, 2005 CanLII 2551, where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination. In Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, the Ontario Divisional Court that mere “boilerplate” statements do not provide a principled rationale to which an insured can respond. In essence, such statements constitute no reasons at all.

77However, I do not find that the notice provided by J.B. on March 3, 2021 falls short of the necessary detail that would allow the applicant to understand the basis for the respondent’s decision to refuse his claim. The respondent was not obliged to propose an alternative theory for the events of September 28, 2019, only that the details of the various reports listed in the notice do not support the applicant’s version of events, while citing the various items of evidence upon which it relied to arrive at this conclusion.

78As well, I find that the applicant’s reference to sections 38 and 44 represents a misleading comparison since the referenced provisions impose a substantively different duty upon the insurer compared to section 53. Both subsections 38(8) and 44(5) of the Schedule set out specific elements that must be included in the notices issued, including medical reasons. Section 53 of the Schedule includes no such specific requirements. As a result, in light of all of the evidence, I find on the balance of probabilities that the respondent’s notice given under section 53 of the Schedule was valid.

79The sufficiency of the letter as a notice also has no bearing on whether the applicant has satisfied his burden to demonstrate that he was involved in an accident as defined in the Schedule or whether he wilfully misrepresented material facts with respect to this “accident” and his application for benefits under section 53 of the Schedule. Service of the notice is simply a procedural prerequisite that the respondent was required to perform before terminating the applicant’s benefits.

Was the applicant involved in an “accident” as defined by the Schedule?

80To be eligible for benefits, the applicant must prove on a balance of probabilities the incident meets the definition of an accident under subsection 3(1) of the Schedule. An accident is defined as:

“an incident in which the use or operation of an automobile directly causes an impairment …”

81While not cited by name, the applicant apparently relies upon the two part test as set out by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC) for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to statutory no-fault accident benefits:

a. The Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?

b. The Causation Test: Was there some causal relationship between the applicant’s injuries and the ownership, use or operation of the vehicle, or was it merely incidental or fortuitous?

The applicant bears the onus to satisfy both the purpose and causation tests.

82In Greenhalgh v. ING Halifax Insurance Co., (2004) 2004 CanLII 21045 (ON CA), 72 OR (3d) 338, the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule, an insured person must meet the purpose test as set out in Amos and the causation test as set out in Chisholm v. Liberty Mutual Group, (2002) 2002 CanLII 45020 (ON CA), 60 OR (3d) 776 (ON CA). This test was adopted and amended to meet the Schedule’s current and more narrow definition, requiring the applicant to now satisfy the following questions:

a. Purpose Test:

i. Did the accident result from the ordinary and well-known activities to which automobiles are put?

b. Causation Test:

i. Was the use or operation of the vehicle a cause of the injuries?

ii. If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In other words was the use or operation of the vehicle a “direct cause” of the applicant’s injuries?

83The applicant noted that the first specific allegation that the accident was staged only arose near the conclusion of C.H.’s direct testimony. Although W.J. offered an opinion that the steering actions of both drivers in the seconds prior to collision was consistent with the drivers intentionally lining the vehicles up for impact, he acknowledged that he had no conclusive evidence of this purpose.

84The respondent took the position that the incident is not an “accident” either because it was staged or because the applicant was not present or both and therefore in any of these scenarios a wilful misrepresentation of the incident. Section 118 of the Insurance Act enshrines the public policy against a person using their own delict to benefit from an insurance policy. The applicant takes the position that even if the accident was staged, the respondent must demonstrate that the applicant was aware that even before he stepped into U.P.’s Acura on the evening of September 28, 2019 that he would be involved in a staged accident. To that end, he relies upon the absence of evidence that he had prior knowledge of a staged accident or that he conspired with the drivers to commit a staged accident.

85I disagree with this analysis since section 53 does not require any advanced knowledge or even participation in the act that is the subject of the misrepresentation, only that the claimant misrepresented material facts about the incident in support of his or her application for benefits. As the respondent suggests, the applicant need not have even been present when the two vehicles collided on September 28, 2019. The first element of the section is satisfied simply if he misrepresents material facts of the event in his application for coverage, even if he learned of the drivers’ scheme after the fact.

86I agree that no one misremembered or forgotten detail of the events of September 28, 2019 is necessarily determinative of whether the applicant was involved in an automobile accident that night or that he has wilfully misrepresented material facts with respect to that “accident.” However, the constellation of missing details, inconsistencies and the applicant’s repeated failure to recollect things that one would reasonably expect him to remember eventually adds up to a lack of credibility. The applicant’s lack of recall regarding the day of the week, the date, time and the location of the accident, as well as key details of the damage cumulatively point to an applicant who may not have been present at all or adopted the drivers’ nefarious narratives after the fact, albeit with little attention to details.

87Particularly telling was the applicant’s acknowledged misrepresentation that the airbags deployed. Although the applicant deems this simply one of many trivial details, he only revised his evidence on this point when the overwhelming contrary evidence presented by W.J. and C.H. established that the airbags did not deploy as he claimed. W.J. described airbag deployment as a violent, loud and unquestionably memorable event, an uncontested description at odds with the applicant’s vague earlier testimony that he may have been struck by them. Based upon W.J.’s uncontested expert evidence on this issue, I find it unlikely that the applicant could have been left in any doubt with respect to whether the airbags deployed or not. I find on the balance of probabilities that he manufactured this detail to add realistic colour to his story and simultaneously to portray the collision as a serious event. More likely than not, the applicant assumed that the Acura’s airbags would have deployed as a result of a serious accident but may have simply neglected to confirm this detail with U.P. before recounting it. I find that the applicant’s acknowledged misrepresentation of this fact is not a trivial oversight as he suggests but rather a wilful misrepresentation of a material fact and one that warrants an adverse inference.

88But this is not the only point where the applicant’s evidence should elicit an adverse inference. His decision not to call potentially relevant and supporting witnesses highlights serious credibility issues with his evidence as a whole. In Nguyen v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 243, the Financial Services Commission of Ontario (‘FSCO’) cited the following guidance from Law of Evidence in Canada, (2nd ed.) J. Sopinka, S.N. Lederman, A.W. Bryant (Toronto: Butterworths Canada Ltd, 1999) at 297 regarding adverse inferences:

…an unfavourable inference can be drawn when, in the absence of an explanation, a party ... fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.” I draw a negative inference from the Applicant’s failure to call any witnesses who would have helped to establish her case.

89Similarly, I draw an adverse inference that the applicant in the present case chose not to call witnesses to testify in support of his version of events. There was no indication that the applicant made best efforts to summons U.P. or S.K. to give evidence at the hearing. Although both drivers provided documentary evidence through their CPC reports, this does not remotely compare to testifying under oath, particularly as the credibility of their own accounts is disputed. As well, the applicant opted not to call Dr. Lanborathan to offer an explanation for her reported disbelief regarding his description of the accident. The doctor’s written statement in this instance does not speak for itself as she did not state the grounds for her skepticism in her notes and the applicant acknowledged at the examination under oath that he did not know why she doubted his account.

90One or more of the friends from the mechanic’s shop party where the applicant claims to been headed that night could also have been called to state that he did not show up as expected, thereby at least supporting his testimony that he went out that night to meet them. None of these witnesses attended to offer any clarification that supports the applicant’s evidence, possibly as none exists. The absence of these witnesses without explanation supports the respondent’s submission that they did not testify because their testimony would not be credible. Although the applicant is correct that the respondent could have secured the testimony of these witnesses, it had no obligation to do so as the applicant bears the burden to prove that he was in an accident.

91The respondent relies upon G.S. v. The Personal Insurance Company, 2020 CanLII 98734 (ON LAT) and B.F. v. Certas Direct Insurance Company, 2021 CanLII 35572 (ON LAT) (‘B.F.’), both of which I find persuasive with respect to the Tribunal’s analysis of the numerous inconsistencies in that applicant’s evidence. As the adjudicator noted in B.F., as in the present case, the sheer volume of inconsistencies and missing details rendered her evidence incredible:

While I can accept that an individual’s memory and ability to recall events is not perfect and can be flawed, considering the evidence, I find the number and nature of the inconsistencies supports that the collision the applicant was involved in did not occur as reported. Furthermore, as noted above, I find that the applicant could not describe basic facts regarding the collision at both her EUO and at the hearing.

92Ultimately, I do not accept the applicant’s version of the events surrounding the collision. Therefore, I find that the applicant has failed to satisfy his onus to show that he was in an “accident” as defined in subsection 3(1) of the Schedule.

Did the applicant wilfully misrepresent material facts with respect to his application for benefits?

93I find the applicant wilfully misrepresented material facts when he described the events surrounding the collision, how the collision occurred and his injuries. I find the applicant misled the respondent with respect to these details in an attempt to claim statutory accident benefits from the respondent to which he was not entitled. Therefore, the respondent has proven that the applicant’s material misrepresentation of the facts was wilful. I also find the applicant’s misrepresentation was material to his application for benefits on the basis of injuries allegedly sustained as a result of the “accident” payable by the respondent.

Is the respondent entitled to repayment of accident benefits?

94I find that as a result of the applicant’s wilful misrepresentation of material facts when he applied for benefits from the respondent, the respondent is entitled to repayment of any benefits paid to applicant. Although neither party offered submissions with respect to the quantum of the repayment, I find that the applicant must repay any and all payments made by the insurer with respect to this matter.

ORDER

95I find that:

a. The applicant was not involved in an “accident” as defined by subsection 3(1) of the Schedule;

b. The respondent is entitled to terminate the payment of benefits because the applicant wilfully misrepresented material facts with respect to the “accident” and his application for benefits under section 53 of the Schedule; and

c. The respondent is entitled to repayment of all benefits paid to the applicant as a result of his wilful misrepresentation or fraud, pursuant to section 52(1)(a) of the Schedule.

96The applicant’s application to the Tribunal disputing his entitlement to accident benefits is dismissed.