January 25, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
MD v Intact LAT 17-000532
Decision Date: December 15, 2017
Heard Before: Adjudicator Deborah Neilson
WAS APPLICANT IN ACCIDENT: applicant’s evidence contains very many inconsistencies; applicant fails to call own expert witness; applicant fails to show that incident is an accident; expert testimony regarding collision differs greatly from the applicant’s evidence
MD claims he was involved in a car accident on March 13, 2014. He applied to Intact for SABs, but when Intact stopped paying MD IRBs pending receipt of information MD applied to the LAT to dispute the suspension of his IRBs. Intact has since denied that MD was in a motor vehicle accident and claims the March 13, 2014 collision was staged. Intact also claims MD made a material misrepresentation in describing the circumstances surrounding the incident on March 13, 2014. The parties have sought a preliminary determination on whether MD was involved in an accident and whether he wilfully made a material misrepresentation when he applied for accident benefits.
MD denies that the collision was staged. He claims that he was stopped at an intersection behind a Mazda when a Hyundai car rear-ended his Toyota Tundra truck, forcing the Tundra forward into the rear end of the Mazda. MD claims that his Tundra struck the Mazda once. Intact relies on an accident reconstruction report and claims that the collision could not have happened in the manner reported by MD. The accident reconstruction engineer determined that a collision likely occurred between MD’s Tundra and the Hyundai, but the Tundra struck the Mazda five times or not at all. Intact’s position is that all three cars were part of a conspiracy to stage an accident. MD was either not in an accident as reported or he staged an accident with the two other vehicles.
Intact alleges that MD is not credible. It relies on a number of circumstances, connections and similarities that MD’s collision has in common with four other collisions that took place over a four month period to allege the collision was staged. Some of those factors are that all five accidents occurred after 10:00 p.m., rental vehicles were involved in 4 of the accidents, and some of the occupants or drivers of the vehicles were Facebook friends with other drivers or occupants in the other collisions, or they attended Seneca College at the same time. This includes the fact that MD’s collision took place at the same location as another accident that occurred about 5 weeks later and involved a passenger in a vehicle who was a Facebook friend with the driver of the Mazda involved in MD’s collision.
- Was the collision an “accident” as defined by section 3(1) of the Schedule?
- Is Intact entitled to terminate the payment of benefits because MD wilfully misrepresented material facts with respect to the “accident” and his application for benefits under s.53 of the Schedule?
In order to show this is an accident, MD must prove on a balance of probabilities that the collision was an incident in which the use or operation of an automobile directly caused an impairment as defined in s.3(1) of the Schedule. Was the accident was staged?
- MD has failed to prove that he was in an accident as defined in s.3(1) of the Schedule. The Adjudicator found the collision did not occur in the manner MD claimed it did. Intact was entitled to terminate benefits under s.53 of the Schedule because MD wilfully made a material misrepresentation in his application for benefits.
MD claimed that Intact is relying on an exclusion in the Schedule to deny MD’s entitlement to benefits. Part VII of the Schedule deals with general exclusions for a claimant’s actions such as driving without insurance, without a driver’s licence, or where the driver was engaged in a crime at the time of the accident and is subsequently convicted of that crime. Intact does not rely on that Part of the Schedule. Intact relies on s.53 of the Schedule, which allows an insurer to terminate the payment of benefits to or on behalf of an insured person if he or she wilfully misrepresented material facts with respect to the application for the benefit and the insurer provides the insured person with its reasons for terminating the benefit.
Adjudicator Neilson noted she is bound by the Court of Appeal and that the burden of proof to show that he was in an accident rests with MD. For this reason, MD was ordered to present his case first.
In order to claim accident benefits from Intact, MD must prove on a balance of probabilities that he was involved in an accident as defined in s.3(1) of the Schedule. The definition of “accident” in s. 3(1) of the Schedule means an incident in which the use or operation of an automobile directly caused an impairment. Intact submits that the collision MD was involved in was staged. MD claims that even if the accident was staged, a staged collision will meet the definition of “accident” in the Schedule. The Adjudicator disagreed with MD and determined that if the collision was staged, MD will be unable to prove he was in an accident as defined in the Schedule for the following reasons.
MD relies on the Supreme Court of Canada decision of Amos and Insurance Corporation of British Columbia for interpreting the definition what is meant by the use or operation of a vehicle. This is the Amos Test. The first part of the two part test, the ordinary and well known activities to which vehicles are put, is described as the purpose test. The second part of the test, the nexus or causal relationship, is the causation test.
The Amos purpose test has been found by the Ontario Court of Appeal to apply to the definition of “accident” in s.3(1) of the Schedule. In order for a finding that the collision was an accident MD must prove on a balance of probabilities that the collision resulted from the ordinary and well-known activities to which automobiles are put. MD submits that travelling in a vehicle and stopping at a red light at an intersection, just as he was doing, is an ordinary and well known activity for a truck.
Intact relies on a number of decisions from the Financial Services Commission of Ontario (FSCO) that held that a staged accident is not an “accident” as defined in the Schedule. Those cases appear to have accepted that deliberately driving a vehicle into another vehicle is not an ordinary or well known activity for vehicles without analysing the purpose test.
Section 118 of the Insurance Act, RSO 1990, c I.8 essentially states that a person shall not profit under an insurance policy from that person’s intentional or criminal act.
The Adjudicator reviewed the law and the facts. The law is clear that if a crime is being committed the persona committing the crime should not profit from it.
When the definition of “accident” in the Schedule is interpreted in light of s.118 of the Insurance Act , “accident” does not include a staged collision. The purpose of a staged collision is for the participants to profit from the insurance policy. A definition of “accident” that allows people to profit under the insurance policy because of their intentional acts is contrary to public policy and s.118 of the Insurance Act.
The Adjudicator reviewed the evidence and MD’s testimony. The Adjudicator agreed that MD’s evidence is inconsistent and, when provided with an opportunity to explain the inconsistencies between prior statements, he was unable to do so in a satisfactory manner. The inconsistencies arise in MD’s evidence in a number of instances. The most significant include the events leading up to the accident and the explanation of why MD was at the accident location at that time. His EUO was not consistent with further testimony. The Adjudicator determined that with all the inconsistencies in MD’s evidence there are general issues about MD’s evidence overall.
The Adjudicator then reviewed the evidence regarding the accident reconstruction. The Adjudicator accepted the expert testimony of the accident reconstruction which suggested a much different scenario than MD testified to.
MD submits that little weight should be given to Mr. Jenkins’ opinion that if the Mazda and the Tundra struck each other, they did so no less than five times because his opinion was based on a photograph taken at an angle.
Based on the totality of the evidence and MD’s inconsistent testimony the Adjudicator found that MD’s evidence about how the collision occurred is inconstant with the expert evidence. For this reason, together with the inconsistencies in MD’s previous statements and the logical inconsistency to his evidence, MD’s evidence as to what occurred the evening of March 12, 2014 and the early morning of March 13, 2014 is not reliable.
MD submits that the medical report from Intact’s neurologist supports that MD was in an accident. The report was dated May 24, 2016, which was over two years after the alleged accident in this case. This opinion does not assist MD because the report was based on what MD’s statement and MD’s information of what occurred. The physician did not have Mr. Jenkins’ report. Further it appears he was not aware that MD was in a motor vehicle accident on January 8, 2015. Without a discussion by the doctor eliminating any other cause for his findings, the Adjudicator cannot accept that Dr. Brown’s opinion is evidence that MD was in his Tundra when it was struck by the Hyundai.
Although the evidence was circumstantial, the Adjudicator found that MD has failed to satisfy his onus to show he was in an accident as defined in the Schedule. MD’s evidence is unreliable and there is no expert evidence to refute the accident reconstruction and expert opinion. The Adjudicator drew an adverse inference from MD’s failure to call any evidence to corroborate his version of the collision. For all of these reasons she found that the collision was staged.