Licence Appeal Tribunal File Number: 22-010853/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:
Babich Akzibekian
Applicant
and
Economical Mutual Insurance Company
Respondent
PRELIMINARY DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Babich Akzibekian, Applicant
Alexei Antonov, Counsel
For the Respondent:
Jody Ranger, Claims Adjuster
John Desjardins, Counsel
Interpreters (Russian language):
Marina Golovanevski (Day 1)
Larissa Stroikova (Day 2)
Vladimir Dubrovsky (Day 3)
Heard by Videoconference:
September 25 to 27, 2023
OVERVIEW
1Babich Akzibekian, the applicant, claims he was involved in an automobile accident on September 12, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent takes the position that no accident took place on September 12, 2020 and that the accident was staged to give the appearance that one took place. The applicant submits that an accident did in fact take place on September 12, 2020, which directly caused injuries to the applicant.
PRELIMINARY ISSUES
3The preliminary issues to be decided are as follows:
i. Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
ii. Is the applicant barred from proceeding to a hearing because he wilfully made a material misrepresentation when he applied for accident benefits?
iii. Is the applicant entitled to costs?
RESULT
4The applicant was involved in an accident.
5The applicant is not barred from proceeding to a hearing because he wilfully made a material misrepresentation when he applied for accident benefits.
6The applicant is not entitled to costs.
PROCEDURAL ISSUES
7During the course of the hearing the procedural issues which follow were addressed.
8On the first day of the hearing, the applicant requested to file a Statement of Defence in a civil claim the applicant brought against the other driver in the accident. This was served on the respondent during the first day of the hearing. The applicant submitted that he provided the other driver with a notice to appear to testify but she did not attend. The applicant’s request for a summons for this witness was denied by the Tribunal ahead of the hearing because, among other reasons, it was submitted late.
9The respondent objected to admitting this document as it was served late and it contains a pleading in a different action involving someone who is not a party in this matter.
10I did not allow the applicant to file this document because it was served late. Rule 9.4 of the Tribunal’s Common Rules of Practice & Procedure (“Rules”) prohibits a party from relying on late-served evidence unless the Tribunal consents. I declined consent to admit the document due to its lateness and it was not relevant to the accident benefits file and to the onus that must be met by the applicant.
11Prior to the testimony of Shady Attalla, the applicant advised that he would be challenging his expertise as an Acknowledgement of Expert’s Duty with the proper Tribunal form had not been filed. The respondent pointed out that Mr. Attalla’s report, which was served on the applicant no later than May of 2023, contained his qualifications, his CV and an Acknowledgement of Expert’s Duty. The respondent also submitted that the applicant should not be able to challenge the expertise of the witness as he did not provide proper notice of his intention to do so, as required by the Rules.
12I found that the information in Mr. Attalla’s report was in compliance with Rule 10.2 of the Rules. Further, since the applicant did not provide the respondent with proper notice of his intention to challenge the respondent’s expert, as required by Rule 10.4, I did not allow the applicant to challenge his expertise.
ANALYSIS
The applicant was involved in an “accident” as defined in the Schedule, and he is not barred from proceeding to a hearing for wilfully making a material misrepresentation
13For the reasons that follow, I find that the applicant was involved in an “accident” and that he did not make a material misrepresentation when he applied for accident benefits.
14Section 3(1) of the Schedule defines an “accident” as “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.”
15The onus is on the applicant to establish that he was involved in an accident.
16The Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC) established a two-part test to determine whether an insured was involved in an accident: whether the use or operation of an automobile was involved in the incident (“purpose test”) and, if so, whether such use or operation directly caused the claimant’s injuries (“direct cause test”).
17The applicant testified at the hearing with the assistance of a Russian interpreter. He was born in Ukraine and came to Canada in 2015. He advised that he can only communicate in English in very simple situations. He testified that on September 12, 2020, he was driving on his way to go fishing in Guelph and was traveling on Highway 401. After about 15 to 20 minutes of driving, a female driver was changing lanes and struck his vehicle. He estimated he had been driving at about 60 km per hour. Both vehicles remained where the collision occurred until tow trucks arrived. He advised that the accident occurred at about 11:10 a.m. He advised that in addition to the female driver, the other car had a male passenger and possibly two children in the back.
18The applicant testified he did not know the driver of the other vehicle and had never met her before. He exchanged information with the other driver with the assistance of the tow truck driver. The applicant took photos of the other driver’s licence and insurance certificate, and these photos were filed.
19The applicant testified that he took photos of the accident scene, which were filed. These photos depicted a Hyundai Santa Fe, which the applicant indicated was his vehicle, and a Toyota Camry, which the applicant said was the vehicle that struck his. The vehicles are stopped on a busy multi-lane highway. The Toyota’s left front bumper is touching the Hyundai’s right passenger side rear corner. There is apparent damage to both vehicles in the photos. There is also a photo of a tow truck at the scene. The applicant testified that he called his friend Marat to tell him about the accident and asked him for help with translation at the Collision Reporting Centre (“CRC”). The tow truck driver delivered his car to a repair shop that he had never heard of before.
20When asked, the applicant denied staging the accident.
21A Motor Vehicle Collision Information Form was filed. The applicant testified that he completed this at the CRC. His name and information are on the form, as well as the other driver’s, as listed in their driver’s licence that was filed. The time of the accident is noted as 12:10. When asked about this in cross-examination, the applicant advised that this was an error. On the right side of the form, the time completed is listed as 12:55. The applicant indicated that this is not possible, as time was spent exchanging information at the accident scene, putting the vehicles on tow trucks, driving about 30 minutes to the CRC, and waiting to be dealt with there.
22A Motor Vehicle Collision Report was filed. The driver information matched that of the applicant as well as the information in the other driver’s licence that was filed. The report indicates that the Toyota had four occupants.
23The applicant testified that the officer at the CRC advised him that the documents would be sent to his insurance company and they would be in touch with him. He said he spoke to someone at the insurance company four or five days later. He is not sure if they called him or if he called. During conversations with the insurance company, his friend Marat spoke on his behalf.
24The applicant’s OCF-1 dated October 2, 2020 was filed, indicating the applicant suffered the following injuries: neck, shoulders, back, headache and psychological impairments. The applicant also filed clinical notes and records of Dr. Ambartsumyan indicating that on October 6, 2020, he reported neck and back pain, insomnia and headaches as a result of the September 12, 2020 accident. The applicant also filed a declaration sworn by him on January 29, 2021 advising that he injured his neck, shoulder, back, head, elbow and suffered psychological stress and insomnia as a result of the accident.
25In cross-examination, the respondent questioned the applicant about when the car was registered, how much he paid for the car, where he stopped on the way to go fishing, the speed of the traffic at the time of the accident, among other details. Some inconsistencies were pointed out between the applicant’s testimony at the hearing and his prior testimony at an examination under oath on June 15, 2021. I have assessed the credibility of the applicant during his testimony and I attribute these inconsistencies to the passage of time. On a consideration of his overall testimony, I found the applicant to be credible and genuine.
26The applicant’s friend and employer, Marat Martrosayants, testified that he often assists the applicant with translating when he requires assistance. Although his English is not perfect, he advised that it is good enough to communicate on a daily level. On September 12, 2020, Mr. Martrosayants received a call from the applicant advising that he had just been involved in an accident and requesting his assistance with translation. Mr. Martrosayants said that he was shopping with his wife at Costco at the time and he and his wife left the store to meet the applicant at the CRC. When he arrived at the CRC, the applicant, a tow truck driver and the other car involved in the collision were there. Mr. Martrosayants assisted the applicant with translation in completing paperwork at the CRC. I found Mr. Martrosayants’ testimony to be credible.
27Janet Bosiants, Mr. Martrosayants’ spouse, required the services of the Russian translator. She testified that her husband received a call on September 12, 2020 at around 11:00 a.m. while they were shopping at Costco and that they left to assist the applicant. During her testimony, she said that she attended “the scene” and her husband left the car to go help the applicant. She testified that she stayed in the car. In cross-examination, the respondent asked her about how close the vehicles were to one another, what road they were on, whether there were tow trucks on the scene. She responded that she did not remember. In re-direct, Ms. Bosiants was shown the pictures from the accident scene and asked whether she went there. She clarified that they did not go to the scene of the accident. It was the CRC. It was a different road and they parked on the side. I accept that when she referred to “the scene” in her testimony, she was referring to the CRC and not the accident location. I found her to be credible.
28Julie VanEenoo testified for the respondent. She was the adjuster at the time of the applicant’s claim. She testified that she had concerns about this file. The respondent learned about the accident when they received a call from a certain rental car company asking about paying for the rental car acquired by the applicant after the accident. Another concern was that the applicant’s vehicle had been added to this policy on June 23, 2023, just three months prior to the accident. In addition, the damage to the vehicle were repaired prior to the insurer being notified. Ms. VanEenoo also believed that the injuries reported by the applicant were not consistent with the damage to the vehicles. She said that she was aware that there were previous cases where the repair shop and the rental company that were used in this case were involved in staged accidents. The respondent requested the preparation of a reconstruction report. Based on the conclusions in the report and the other previous concerns, the respondent denied the applicant’s claim for accident benefits.
29Shady Attalla, a professional engineer since 2006 and a collision reconstructionist since 2015, testified for the respondent. He was the lead engineer in over 700 accident reconstructions. He was qualified as an expert to give opinion evidence in the area of collision reconstruction and forensic engineering.
30Mr. Attalla testified that he initially reviewed photographs, damage estimates, and a summary of the statements by both drivers that were provided to him by the respondent. He did not inspect the damage to the vehicles themselves. Based on the pictures of the vehicles, he found that the damage on the Hyundai was not consistent with the type of scratches on the side of the Toyota and that there was a large discrepancy in the damage to the Toyota, in that there was much more severe damage. Given the degree of damage to the Toyota, he expected to see more severe damage on the rear of the Hyundai, possibly a displacement of the rear wheel. He was also of the opinion that some of the scratches higher on the passenger side of the Hyundai were wiggly, multi-directional and sharp, which would be more consistent with being caused by narrow, protruding objects, such as tools. His opinion was that there was no contact between the vehicles.
31In Mr. Attalla’s report, there is a summary of a statement by the driver of the Toyota. She indicated that she was traveling on Highway 401 and was trying to change lanes to the left when she collided with the vehicle in that lane. She indicated damages to her vehicle were on the driver’s side front bumper, fender, and a cracked headlight. The damage to the other vehicle was on the rear bumper.
32On cross-examination, Mr. Attalla indicated that he did not put any weight on the other driver’s statement where she admitted she was involved in an accident. Further, he agreed that there was no evidence that his was a staged accident. He said it was not his job to determine this.
33Mr. Attalla concludes in his first report dated November 20, 2020 that:
i. There was no apparent evidence of contact between the vehicles.
ii. The damage was more severe on the Toyota than it was on the Hyundai.
iii. There was damage on the Toyota that was on an area of the vehicle that would not have contacted the Hyundai.
34Upon reviewing the photographs taken by the applicant at the scene, Mr. Attalla’s addendum report dated January 20, 2021 indicates that the newly provided photographs appear to illustrate the incident vehicles at their final rest positions immediately after the collision. He further says that these photos strongly suggest that the vehicles did in fact come into contact. In this report, Mr. Attalla provides the following conclusions:
i. The damage was more severe on the Toyota than it was on the Hyundai.
ii. There was conflicting damage on the right side of the Hyundai.
iii. There was damage on the Toyota that was on an area of the vehicle that would not have contacted the Hyundai.
35Mr. Attalla further opines that there was additional damage on both vehicles which most likely occurred some time after the collision and that the newly provided photographs do not show the main areas of damage clearly.
36Despite indicating in his second report that the newly provided photographs strongly suggest that the vehicles did in fact come into contact, Mr. Attalla testified that this did not change his opinion that there was no contact between the vehicles.
37I am not convinced by Mr. Attalla’s report and testimony that the vehicles did not come into contact. Mr. Attalla based his findings on pictures. When I look at all of the pictures that were filed, I am satisfied that there is damage to both vehicles that is consistent with the applicant’s testimony.
38I have considered the following factors in coming to my determination that the applicant has met his onus to prove that an accident did in fact occur which directly caused an impairment to the applicant:
i. I accept the applicant’s testimony that he was driving his vehicle on Highway 401 on September 12, 2020 and that the driver of the Toyota drove into his lane and struck his vehicle. This version is similar to the statement that was provided by the driver of the Toyota, as contained in Mr. Attalla’s report;
ii. The pictures taken by the applicant very clearly depict the scene of the accident, with both vehicles in the picture, on the highway, consistent with the applicant’s testimony;
iii. Mr. Martrosayants and Ms. Bosiants both testified that Mr. Martrosayants received a phone call from the applicant advising him that he was involved in an accident and they attended at the CRC on September 12, 2020;
iv. The collision was reported to the CRC on the day of the accident and the information on the forms matches the applicant’s information and that of the driver of the Toyota, as depicted in the pictures of her driver’s licence;
v. The applicant filed an OCF-1, clinical notes and records from Dr. Ambartsumyan, and a sworn declaration indicating that he suffered injuries as a result of the accident on September 12, 2020; and
vi. The respondent did not provide convincing evidence that the accident on September 12, 2020 was staged.
39For all of these reasons, I find that an accident did occur and that the applicant did not make a material misrepresentation when he applied for accident benefits.
The applicant is not entitled to costs
40The applicant sought costs in this matter on the basis that the respondent acted unreasonably, frivolously, vexatiously, and in bad faith, in accordance with Rule 19.1 of the Rules.
41The applicant testified that the respondent’s position that the accident did not occur has affected him emotionally and that having to attend this hearing has affected his personal and work life.
42The applicant submitted that the respondent’s conduct in bringing this preliminary issue hearing was unreasonable in light of the inconsistencies in their expert’s report and that they failed to discharge their obligation in good faith. As a result, the respondent suffered psychologically in having to attend this hearing.
43The respondent submitted that there is evidence that calls into question whether an accident occurred, and even if the respondent is unsuccessful, they acted in good faith and reasonably.
44I find that there was some evidence that was relied upon by the respondent in their argument of the preliminary issues. In the circumstances, I do not find that their conduct was unreasonable, frivolous, vexatious, or in bad faith. Accordingly, I am not making an award for costs.
ORDER
45The applicant was involved in an accident.
46The applicant is not barred from proceeding to a hearing for wilfully making a material misrepresentation when he applied for accident benefits.
47The applicant is not entitled to costs.
Released: October 27, 2023
Laura Goulet
Adjudicator