Licence Appeal Tribunal File Number: 23-000150/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:
Falastin Hussein
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Falastin Hussein, Applicant Ryan Naimark, Counsel Dana Yoon, Counsel
For the Respondent:
Han Nguyen, Adjuster
Noella Thompson, Counsel
Hussein Pirani, Counsel
Court Report:
Brenda Clancy
Interpreter (Somali):
Fowzia Ahmed (March 11, 13, and 14, 2024)
Fatima Dini (March 12, 2024)
HEARD by Videoconference:
March 11, 12, 13, and 14, 2024
OVERVIEW
1Falastin Hussein (the “applicant”) was involved in an incident on June 10, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent raised the following preliminary issues:
Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
Is the applicant barred from proceeding with her claim for benefits because she failed to submit the application for benefits (OCF-1) in the time prescribed in the Schedule?
ISSUES
3The issues in dispute are:
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that:
The applicant has not demonstrated that the incident that occurred on June 10, 2021 constitutes an “accident”, as defined in section 3(1) of the Schedule.
As the applicant has failed to establish that she was involved in an accident, her claim for accident benefits cannot succeed. Therefore, it is unnecessary for me to consider whether she failed to submit her application for accident benefits within the time prescribed by the Schedule.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
ANALYSIS
Was the applicant involved in an “accident”?
5To be eligible for benefits, the applicant must prove on a balance of probabilities that the incident that occurred on June 10, 2021 meets the definition of an accident under the Schedule. Section 3(1) defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
6The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries.
7In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Court of Appeal for Ontario confirmed the two-part test to determine whether an incident is an “accident” as follows:
Purpose test: did the incident arise out of the use or operation of an automobile?
Causation test: did the use or operation of an automobile directly cause the impairment?
8The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?
9The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:
The “but for” consideration can act as a useful screen to eliminate irrelevant causes;
The “intervening act” consideration may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and
Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury.”
The Purpose Test
Parties’ position
10The applicant was 23 years old at the time of the incident, she had a grade 4 education, and she had a limited ability to speak English. Due to a pre-existing medical condition, which developed in infancy, she uses a wheelchair and, after she immigrated to Canada in October 2019, she has used an electric wheelchair.
11The applicant claims that on June 10, 2021, while using her electric wheelchair, she was travelling in the crosswalk on the northern side of the intersection of Chetta Pl and Dixon Rd in Toronto, Ontario, travelling eastbound on Dixon Rd. The applicant submits that before reaching the island at the end of the crosswalk, the back of her wheelchair was struck by the front end of the vehicle operated by Equerem Godaj, causing her to fall out of her wheelchair and on the ground, and for her wheelchair to land on her legs. While she acknowledges that she is not the best historian, she denies that she fabricated the accident.
12The applicant further submits that Rawoof Qurbani, who testified at the hearing, is an independent witness who had no prior affiliation with her and her family. At the time of the incident, Mr. Qurbani was home and was able to see the intersection of Chetta Pl and Dixon Rd from his window. According to a statement he provided to the applicant’s former counsel about a month after the incident, he saw Mr. Godaj’s vehicle strike the applicant. At the hearing, although he could not recall seeing Mr. Godaj’s vehicle strike the applicant, he stated that his memory was better when he made his statement.
13The applicant argues that it is not plausible that she lost control of her wheelchair, fell off the curb, and landed in front of Mr. Godaj’s vehicle. She states that upon reaching the island at the end of the crosswalk that she had no reason to turn around because she was heading to a doctor’s appointment at the Rexdale Community Health Centre, located at 222 Dixon Rd, which is on the same side of the street that the incident occurred.
14Further, the applicant indicates that although the Toronto Police Service concluded that an accident had not occurred, they did not have the benefit of a statement from Mr. Qurbani. The applicant also states that the notes of the traffic officer who investigated the incident, Officer Mark O’Donnell, contained inaccurate facts regarding how the incident occurred. Moreover, while Officer O’Donnell noted that he inspected Mr. Godaj’s vehicle and that there was no evidence of property damage, the applicant claims that she did not have the opportunity to inspect the vehicle, and Mr. Godaj has since sold the vehicle to a third party.
15In response, the respondent submits that the applicant has failed to meet her onus of proof to demonstrate that the incident that occurred on June 10, 2021 involved the use and operation of an automobile. The respondent argues that there is no objective evidence to support that Mr. Godaj’s vehicle struck the applicant’s wheelchair, nor to explain why the applicant fell on the ground.
16The respondent notes that based on the applicant’s testimony, she did not personally observe Mr. Godaj’s vehicle strike her wheelchair, and she did not spot his vehicle until after she fell on the ground. Further, on the date of the incident, the applicant gave various inconsistent accounts of the incident. First, per Officer O’Donnell’s notes, the applicant did not report to Officer Sam Goddard and Officer David Durocher, the two police officers that attended the scene of the incident, that she had been struck by a vehicle. However, based on the Ambulance Call report, she told paramedics that the vehicle struck the leg rest part of her wheelchair, causing her to fall from her wheelchair and to land on her right side. According to the Emergency Record of Humber River Hospital, she then reported that her motorized wheelchair was clipped by a vehicle, and she fell on the ground. Also, per the Orthopaedic Consult Report completed by Dr. Stephen Halman, orthopaedic surgeon, the applicant reported that she was crossing a roadway in her electric scooter when she was hit by a car, and she landed on her back.
17Moreover, since the incident, the applicant has inconsistently recounted the circumstances surrounding the incident and the explanation for how she fell out of her wheelchair. Based on a Consultation Note dated September 27, 2021 completed by Dr. Julian King-Lo, physiatrist, the applicant reported that the vehicle struck the left side of her wheelchair, causing her to spin, but that the vehicle also kept pushing her wheelchair, causing her to fall on the ground. According to an Occupational Therapy In-Home Assessment report dated October 31, 2022 completed by Inderneet Arora, occupational therapist, the applicant later reported that she was crossing the intersection when a left-turning vehicle hit her, but she could not remember the details of the incident. However, per a Psychological Pre-Screening Assessment Report dated November 8, 2022 completed by Dr. Amena Syed, psychologist, the applicant reported that a vehicle struck her wheelchair, kept pushing her wheelchair, and then she was thrown out of her wheelchair.
18The respondent also submits that the incident was investigated by the Toronto Police Service who concluded that there were conflicting stories regarding the incident and that there was zero evidence that a collision had occurred. There was no evidence of damage to Mr. Godaj’s vehicle following the incident. This is supported by the applicant’s photos and video taken immediately following the incident, the police notes of Officer Durocher and Officer O’Donnell, and the testimonies of Mr. Godaj and Darryl Welsh. Considering the combined weight of the wheelchair, which was significantly heavy, and the weight of the applicant, it is not plausible that Mr. Godaj’s vehicle could have struck the applicant’s wheelchair, without causing any damage to the vehicle. Finally, although the applicant is now suggesting that the Toronto Police Service did not properly investigate the incident, there is no evidence to support that the applicant contacted the Toronto Police Service to provide them with additional information or evidence.
The applicant has not demonstrated that the incident constitutes an “accident”
19I find that the applicant has not demonstrated, on a balance of probabilities, that the incident that occurred on June 10, 2021 constitutes an “accident” as defined in s. 3(1) of the Schedule as the applicant has not established that the incident arises out of the use or operation of an automobile.
20I find that there is no objective evidence to support that Mr. Godaj’s vehicle struck the applicant’s wheelchair while she was travelling in the crosswalk of the subject intersection. Although Mr. Godaj has since sold his vehicle, a video of the vehicle taken by Mr. Qurbani immediately following the incident did not show any signs of damage to the vehicle. Officer Durocher, who arrived at the scene of the incident immediately after it happened, noted that there was no damage to the front of Mr. Godaj’s vehicle to suggest contact with the applicant’s wheelchair. Further, when Officer O’Donnell inspected the vehicle a few hours after the incident, he noted that there was no property damage to the vehicle.
21I am not persuaded by the applicant’s version of the incident. The applicant testified that she did not see Mr. Godaj’s vehicle strike her wheelchair, and she observed his vehicle for the first time after she fell on the ground. Following the accident, Officer Goddard and Officer Durocher were at the scene for approximately 42 minutes before the ambulance arrived and at no point in time did the applicant report that Mr. Godaj’s vehicle struck her wheelchair. While I appreciate that there was a language barrier at the scene, according to Officer Goddard’s notes, a bystander who spoke the applicant’s native language was able to communicate with her, and there is no evidence that she reported that she had been struck by Mr. Godaj’s vehicle. The applicant later provided various inconsistent accounts of the circumstances surrounding the incident and how she fell on the ground.
22Further, although the applicant argues that Mr. Qurbani was the “best witness”, I do not agree. Mr. Qurbani asserts that he had knowledge of the incident, but he opted not to communicate this information to the Toronto Police Service. Rather, Mr. Qurbani provided an unsworn statement to the applicant’s former counsel on July 9, 2021. In his unsworn statement, Mr. Qurbani reported that Mr. Godaj was travelling on Dixon Rd, that he turned left without stopping, that he struck the applicant’s wheelchair, and that she was thrown from her wheelchair and fell on the ground. When he testified before the Tribunal, it was his evidence that he did not recall seeing the incident. He remembered looking out his window and seeing Mr. Godaj’s vehicle travelling east on Dixon Rd, about to make a left hand turn at the intersection, and he saw the applicant crossing the street in her wheelchair, facing a green light. He looked away, and then he heard a noise. Although it was his belief that Mr. Godaj’s vehicle struck the applicant, he maintained that he did not recall seeing what happened.
23I find that the witness with the best vantage point of the incident was Mr. Godaj. He testified that he was travelling east on Dixon Rd, and he was about to turn left on Chetta Pl. While he was waiting for oncoming traffic, he observed the applicant travelling east on Dixon Rd in the crosswalk in her wheelchair. After the applicant reached the island at the end of the crosswalk, Mr. Godaj proceeded to make a left hand turn onto Chetta Pl. However, as he was completing his turn, he observed the applicant losing control of her wheelchair, spinning, and then falling off the curb, on to the ground. Mr. Godaj denied that his vehicle struck the applicant’s wheelchair.
24Mr. Godaj initially reported to Officer Goddard that he observed the applicant spinning in her wheelchair, causing the large wheel of her wheelchair to drive off the curb, launching her on the roadway, and her wheelchair landing on her legs. Similarly, he reported to Officer O’Donnell that he saw the applicant on the island doing circles with her wheelchair. She appeared to lose control, and she fell off the curb. When he testified before the Tribunal, his description of the incident was similar to what he reported to the two police officers.
25On cross-examination, Mr. Godaj added that the applicant got caught in three cables attached to an electrical pole on the island and then she lost control of her wheelchair and fell on the roadway, and he was rigorously cross-examined on this additional explanation. While I found part of his explanation a bit far-fetched, his overall description of the incident did not lead me to believe that he struck the applicant with his vehicle.
26A witness, Mr. Welsh, corroborated Mr. Godaj’s version of the incident. Mr. Welsh initially reported to Officer O’Donnell that he saw the applicant fall off the curb of the island and onto the roadway, and about two seconds later, he saw Mr. Godaj’s vehicle pull up. He denied that Mr. Godaj’s vehicle struck the applicant’s wheelchair. Mr. Welsh was later examined at an Examination Under Oath held on September 14, 2023. At that time, he testified that he saw the applicant go in circles on the island before she fell off the curb. Then, when he testified before the Tribunal, he stated that he first saw the applicant when she was falling off the curb.
27Although there are some inconsistencies in Mr. Welsh’s evidence regarding whether he observed the applicant spinning in circles prior to falling off the curb, following a rigorous cross-examination, I find that Mr. Welsh was forthright in providing his evidence and that he did so to the best of his recollection.
28Moreover, the still shot of the video taken by Mr. Qurbani following the accident depicting the applicant’s resting place immediately following the incident is consistent with Mr. Godaj’s and Mr. Welsh’s version of the incident. Specifically, the image depicts the applicant laying on the roadway north of the crosswalk with her wheelchair laying on top of her lower limbs, and the applicant’s wheelchair is facing Mr. Godaj’s vehicle. The positioning of the applicant and her wheelchair in this image is not consistent with the applicant’s allegation that she was struck from behind by Mr. Godaj’s vehicle.
29Finally, I accept the Toronto Police Service’s investigative findings that there is zero evidence that a collision occurred. There are conflicting stories regarding the circumstances surrounding the incident, and there is no evidence of property damage to Mr. Godaj’s vehicle.
30Accordingly, I find that the applicant was not involved in an accident as defined in section 3(1) of the Schedule. The incident that occurred on June 10, 2021 does not meet the purpose test because any injuries the applicant may have suffered do not arise from the use or operation of an automobile. Since the purpose test has not been met, further analysis concerning the causation test is not necessary.
Application for Accident Benefits (OCF-1)
31Having found that the applicant was not involved in an accident, her claim for accident benefits cannot succeed. Therefore, it is unnecessary for me to consider whether she failed to submit her application for accident benefits within the time prescribed by the Schedule.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
33Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant is not entitled to accident benefits, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
34For the reasons outlined above, I find that:
The applicant has not demonstrated that the incident that occurred on June 10, 2021 constitutes an “accident”, as defined in section 3(1) of the Schedule.
As the applicant has failed to establish that she was involved in an accident, her claim for accident benefits cannot succeed. Therefore, it is unnecessary for me to consider whether she failed to submit her application for accident benefits within the time prescribed by the Schedule.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
35The application is dismissed.
Released: April 25, 2024
Ludmilla Jarda
Adjudicator