Court File and Parties

COURT FILE NO.: CV-21-00664276-0000

DATE: 20221209

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXIS ADRIANNA ALGU, Plaintiff

– and –

SAQIB AYYAZ and JOHN DOE and UBER TECHNOLOGIES INC. and INTACT INSURANCE COMPANY, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Jae Cho, for the Plaintiff Antonella Albano, for the Defendant, Saqib Ayyaz Lucas Kittmer, for the Defendant, Uber Technologies Inc. Lida Moazzam, for the Defendant, Intact Insurance Company

HEARD: December 8, 2022

MOTION FOR SUMMARY JUDGMENT

[1] This motion is brought by the Defendant, Saqib Ayyaz, to dismiss the action. He is supported in the motion by the other Defendants, Uber Technologies Inc. (“Uber”) and Intact Insurance Company (“Intact”).

[2] The Plaintiff claims that on June 20, 2019 she sustained back injuries when she was involved in an automobile accident while a passenger in Mr. Ayyaz’s car. The Plaintiff alleges that she was sitting in the back seat of Mr. Ayyaz’s car when he was rear-ended by another vehicle.

[3] At the time of the alleged accident, Mr. Ayyaz made his living driving passengers. He was an independent contractor, using the Uber app to be in contact with passengers seeking ride share services. The Plaintiff used the Uber app and was assigned Mr. Ayyaz as her driver. Mr. Ayyaz was knowledgeable about Uber’s requirement that every collision be reported, and he was fully insured by Intact.

[4] It is Mr. Ayyaz’s position that the accident described by the Plaintiff is a figment of her imagination. As his counsel put it in her factum, “The evening of June 20, 2019, was ordinary and uneventful for the defendant, Saqib Ayyaz… This case is about an alleged motor vehicle accident that did not occur.”

[5] The GPS Driver Status Query response produced by Uber gives a record of Mr. Ayyaz’s activity on June 20, 2019. This document shows no delays for the ride from the Plaintiff’s residence at 185 Legion Road North, Etobicoke to her destination at the Oyster Bay Restaurant, 872 Queen Street West, Toronto.

[6] According to the GPS readout, Mr. Ayyaz accepted the Plaintiff’s ride request at 6:59:19 p.m. He picked up a new passenger after the Plaintiff exited his car at 7:27:21. In other words, the Plaintiff spent just under 27 minutes in Mr. Ayyaz’s car. The roughly 9 km distance from the Plaintiff’s pickup location to her drop-off location takes, on average, 20 to 30 minutes.

[7] The Plaintiff was not Mr. Ayyaz’s only Uber passenger that evening. He went on to accept rides from other passengers as soon as he completed his ride with the Plaintiff. None of those other passengers has been heard from in this action, and none of them reported any incident or problem with Mr. Ayyaz or his vehicle.

[8] The following evening, when Mr. Ayyaz got into his car to start working, he discovered that he had been suspended from his Uber account. Upon inquiry, Uber advised him that one of his previous evening’s passengers, the Plaintiff, had reported a collision. Mr. Ayyaz denied that he had been in a collision the previous evening. He produced photographs of his vehicle showing that the only visible damage to the rear of his vehicle was from an incident which pre-dated the date of the alleged collision by two years.

[9] Mr. Ayyaz explained that on July 25, 2017, he had inadvertently backed his vehicle into a yellow park gate at Kingsbridge Park in Niagara Falls, causing minimal damage to the rear of his vehicle. He took photographs of the minor damage caused by this mishap at the time that it occurred, in 2017. He had never bothered repairing the damage caused by the incident, as it was negligible.

[10] The Plaintiff described the collision in Mr. Ayyaz’s car on June 20, 2019 as having been a rear-end impact from an unknown white vehicle, which she deposed occurred while they were stopped at a red traffic signal. She could give no details of the white vehicle or of its driver. No evidence of any white automobile paint has been noted or observed to have rubbed off on the rear of Mr. Ayyaz’s car.

[11] The Plaintiff provided a statement to Uber in which she said that at the time of the collision she had barely noticed that there had been any impact. She later provided a statement to Mr. Ayyaz’s insurer, Intact, in which she said that she had felt the impact of the collision and that it was “pretty hard”. It is difficult to reconcile these two descriptions. The event appears to have gotten amplified in the re-telling.

[12] It is undisputed that the Plaintiff never reported the alleged accident to the police and that while she was in the car she never advised Mr. Ayyaz that she was injured. Upon voicing her complaint to Uber the next day, the Plaintiff at first alleged that she had sought out medical attention the very evening of the accident, right after her ride in Mr. Ayyaz’s car. It turns out, however, that this was false. The Plaintiff left Mr. Ayyaz’s car and continued to have dinner with her friends as planned. She did not interrupt her evening and did not attend at any hospital following the alleged collision. Rather, the following day she attended a medical appointment for unrelated health matters that had been scheduled prior to the date of the alleged accident.

[13] The Plaintiff’s complaints that prompted the pre-scheduled medical appointment had to do with ear and abdominal issues. During her visit she also complained to the doctor about having been in a car accident the previous evening, but whatever injury she described at that point was not serious enough for the doctor to examine her during that appointment. A week later, she went to the hospital to complain about lower back pain on her right side, which she then claimed came about as a result of the car accident.

[14] It is noteworthy that the Plaintiff stated under oath that she had never before suffered from right-sided lower back pain. However, that, too, turned out to be false. Her medical records show that seven months prior to the alleged accident – in November 2018 – she did, in fact, complain to her physician about right-sided lower back pain.

[15] Interestingly, the records also show that at that November 2018 previous appointment her physician recommended physiotherapy, but she explained to him that she does not have medical benefits to cover physiotherapy as the benefits offered by her employer are too expensive. The Plaintiff’s omission of prior complaints about back pain, and the emergence of an economic motive to make the present claim, place a question mark over her credibility on the cause of the pain she supposedly now feels.

[16] The record also contains reports from three independent engineers who examined Mr. Ayyaz’s vehicle. Kodsi Engineering (“Kodsi”) was retained by the accident benefits insurer for the Plaintiff; -30 Forensic Engineering (“-30 Forensic”) was retained by counsel for Mr. Ayyaz, and Advantage Forensics Inc. (“Advantage Forensics”) was retained by counsel for the Plaintiff. Two of the three engineering reports – the Kodsi report dated November 3, 2021 and the -30 Forensics report dated August 19, 2022 – reached conclusions that confirmed Mr. Ayyaz’s account of the old damage at the rear of his vehicle and the absence of any more recent damage. They independently stated that:

• The damage observed on the rear end of Mr. Ayyaz’s car was not consistent with vehicle-to-vehicle contact. Rather, the damage was consistent with the car having contacted a high, abrasive, protruding object with a yellow, oil based, architectural coating.

• There were no events recorded by the black box data recorder in Mr. Ayyaz’s vehicle that were consistent with the Plaintiff’s account of a rear-end-collision. The data recorder showed no rear-end collision whatsoever on the day of the alleged collision.

[17] The third engineering report – the Advantage Forensics report dated August 19, 2022 – reached similar conclusions but with one extra observation. This report noted that, in addition to the rear-end damage visible on Mr. Ayyaz’s car that was obviously caused by the older collision with a stationary, yellow painted object, there was a vertical scuff mark near the centre of the rear bumper. The Advantage Forensics report indicates that it cannot be ruled out that the scuff mark may have been caused by the front bumper of another car making contact with it at “low speed”. The specific words used in this report, and the ones that the Plaintiff’s entire case appears to turn on, are: “Given the other unrelated damage to the vehicle, we cannot rule out all alternate possible causes of damage.”

[18] The scuff mark on Mr. Ayyaz’s vehicle was not observed or commented upon in the other two engineering reports. This is likely for good reason, since even the Advantage Forensics report indicates that the impugned scuff mark is one of dozens of scuff marks on the rear part of Mr. Ayyaz’s car. As Mr. Ayyaz’s counsel points out, scuff marks can result from things other than a collision.

[19] For a car used for Uber and other ride-sharing passengers, scuffs at the rear of a car can frequently be the result of luggage scraping against the body of the vehicle when it is loaded and unloaded from the trunk. A collision might be one possible cause of a scuff mark, or, to put it the way the Plaintiff’s expert did, a collision “cannot be ruled out”; but non-collision causes also abound. In fact, it is only a non-collision explanation that would be consistent with the numerous scuff marks on the back of Mr. Ayyaz’s car and the fact that the car’s data recorder shows no impact from a collision.

[20] The medical evidence of her injuries submitted by the Plaintiff is based entirely on her description of symptoms to the physicians that examined her. There is no indication in any X-ray, MRI, or other independently verifiable medical test or medium that she has suffered any injury. To the extent that the physicians came to a diagnosis of the Plaintiff’s medical problem, they rely on her own narrative of symptoms. These symptoms, as she describes them, consist of lower back pain on her right side and a “shock – tingly feeling”. Her counsel summarizes the medical evidence in his factum:

Medical professionals who saw or treated her confirmed the fact. Dr. Irina Safir opined that Ms. Algu had sustained cervical spine sprain/strain, thoracolumbar spine sprain/strain, and bilateral shoulder sprain/strain as a result of the Accident and that her diagnostic conditions were consistent with the mechanism of the Accident. Dr. Sabrina Ming-Wai Tu also opined that Ms. Algu had likely suffered a lumbar strain as a direct result of the Accident and that her diagnosis was consistent with the mechanism of the Accident. Dr. John Lee opined that Ms. Algu had symptoms congruent with Adjustment Disorder in relation to the Accident and that her accident-related psychological symptoms warranted psychological services.

[21] In other words, the medical evidence shows that the Plaintiff described to her doctors a set of symptoms that accord with her description of the alleged accident. No one witnessed the accident and so no one can confirm her narrative, and nothing independently tests or assesses her symptoms.

[22] In my view, the Plaintiff’s evidence and her overall claim is not credible. She seems to be the only one who was aware that an accident took place, there is no police report, no witnesses to the supposed accident, no other driver or car with whom the collision supposedly occurred, no lapse of time in her voyage for a car accident to have occurred, and, frankly, no believable medical evidence that any back pain suffered by the Plaintiff was caused by something that happened in Mr. Ayyaz’s car.

[23] In addition, it is noteworthy that Mr. Ayyaz is fully insured, he makes his living by driving and cannot afford to breach Uber’s reporting rules. If he were really rear-ended while stopped at a red light as the Plaintiff described, it would be through no fault of his own. There would be no realistic reason for Mr. Ayyaz to jeopardize his job by hiding such a minor, fault-free incident if it did indeed occur.

[24] The recorded time of the car ride leaves precious little room for an accident to have occurred – a 27-minute ride for a distance that typically takes between 20 and 30 minutes depending on traffic. If the Plaintiff is to be believed, during this 27-minute time frame Mr. Ayyaz would have had to pull over and stop at the scene of an accident, get out of the car to inspect the damage and speak with the other driver, conclude with that driver that the collision was too minor to bother reporting, get back in the car and continue on his way. The 27-minute car ride does not appear sufficient to allow for this interlude to have actually taken place.

[25] The only piece of evidence which provides any glimmer of a foundation for the Plaintiff’s claim is the Advantage Forensics comment with respect to the scuff mark on the back of Mr. Ayyaz’s car. But that glimmer does not suffice to counter the weight of the evidence on the side of Mr. Ayyaz and the other Defendants. The overwhelming preponderance of evidence establishes that no accident transpired while the Plaintiff was a passenger in Mr. Ayyaz’s car on June 20, 2019. All the Plaintiff can point to in response is an observation in an engineering report that it “cannot be ruled out” that an accident had caused a scuff mark on the car.

[26] The phrase “cannot be ruled out” is put forward by Plaintiff’s counsel as, in effect, her best foot. In my view, that does not raise a triable issue. The moving party’s onus is to demonstrate its case on the balance of probabilities – a test which Mr. Ayyaz has clearly met. As moving party, Mr. Ayyaz is not required to rule out every possible alternative theory put forward by the Plaintiff, no matter how tenuous.

[27] Accordingly, I find that there is no genuine issue for trial. The evidence in the record, and my assessment of the Plaintiff’s limited credibility, satisfies me that on the balance of probabilities the car accident alleged in the Statement of Claim did not occur. The action is dismissed.

[28] The parties may make written submissions on costs. I would ask counsel for Mr. Ayyaz and the other two Defendants to send brief written submissions by email to my assistant within two weeks of the date hereof, and for counsel for the Plaintiff to send equally brief submissions by email to my assistant within two weeks thereafter.

Date: December 9, 2022 Morgan J.