April 16, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: March 22, 2016
Heard Before: Adjudicator David Evans
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal of the Arbitrator’s order of October 16, 2014, is allowed, and paragraph 1 of the order is rescinded and replaced with the following:
Mr. Elmi was involved in an “accident” as defined in subsection 2(1) of The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996.
REASONS FOR DECISION
Mr. Elmi claimed that on August 8, 2010, he was driving with three passengers in his 2003 Buick Rendezvous at about 20 kilometers an hour when he rear-ended a 2000 VW Jetta that unexpectedly stopped for an amber light. The air bags did not deploy. The VW driver gave his personal details but left for work. Mr. Elmi’s car, which was no longer drivable, was taken to a Collision Reporting Centre (CRC), where Mr. Elmi reported the incident. Mr. Hamidi also provided a collision report.
Mr. Elmi appealed Arbitrator Mills’ decision of October 16, 2014 that he was not involved in an “accident” as defined by of the SABS. The appeal turns largely on Arbitrator Mills’ interpretation of an analysis of expert evidence regarding a vehicle’s Electronic Data Recorder (EDR) and whether the Arbitrator properly dealt with the issue before her.
Arbitrator Mills stated in her decision that State Farm had hired a forensic engineer who analyzed the EDR in Mr. Elmi’s vehicle. The analysis concluded that Mr. Elmi’s vehicle was stationary for some time before accelerating into the back of the other car. On this basis State Farm submitted that there was no accident within the meaning of the SABS: “State Farm does not deny that a collision occurred but argues that the collision was staged.” After reviewing the forensic information State Farm sent Mr. Elmi an explanation of Benefits dated October 20, 2011, terminating entitlement to Accident Benefits as he had “willfully misrepresented material facts with respect to your application for Accident Benefits … State Farm concludes that you were not involved in a motor vehicle accident on or about August 8, 2011”.
At the arbitration hearing, the expert testified that while the damage to the two vehicles was consistent with the vehicles having collided in the fashion described by the applicant, the third party driver and the witnesses, the EDR data was not consistent with Mr. Elmi’s description of the accident. On the basis of the testimony given Arbitrator Mills concluded that the collision was consistent with a staged accident, and that Mr. Elmi had not met the burden of proof on a balance of probabilities to establish that there was an accident as defined the Schedule.
In this appeal Mr. Elmi submits that the Arbitrator erred in law by applying the 1996 SABS instead of the 2010 SABS. Arbitrator Evans found no merit in this submission because the definitions are identical in both SABS and the transitional provisions of the 1996 SABS do not apply to the definition of “accident.”
Mr. Elmi also submits that Arbitrator Mills did not address the issue before her of whether he had been in an accident but rather found that he had been in a staged accident. State Farm submits that the Arbitrator never specifically found there was a staged accident and submits that there can be a collision that is still not an “accident.”
Arbitrator Evans concurred with Mr. Elmi and found State Farm’s position untenable. Arbitrator Evans then reviewed the law, and the definition of Accident in the 1996 ‘SABS’. He concluded that in this case, there was an incident, as there was no suggestion that the collision between the cars did not occur. Neither the expert, nor State Farm denied a collision. The fact that one car accelerated into another does not make it less of an accident under the definitions.
Arbitrator Evans found that Arbitrator Mills erred in law by not answering the question before her.
Accordingly, the Arbitrator erred in law in finding that Mr. Elmi was not in an accident. The appeal is, therefore, allowed. The Arbitrator’s order will be amended to read that Mr. Elmi was involved in an “accident” as defined in the SABS.