November 01, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Knox Henry
Date of Decision: August 1, 2014 =
DECISION ON A PRELIMINARY ISSUE
Mr. Peter Kwadwo Anane and Ms. Margaret Yeboah claimed to be involved in an automobile accident March 26, 2010, and each sought benefits from Intact Insurance Company. The parties were unable to resolve their disputes through mediation, and Mr. Anane and Ms. Yeboah applied for arbitration at the Financial Services Commission of Ontario.
The issues in this Preliminary Hearing are:
Were Mr. Anane and Ms. Yeboah involved in an “accident?
Did Mr. Anane and Ms. Yeboah willfully misrepresent the circumstances surrounding the alleged accident when applying for accident benefits?
Are Mr. Anane and Ms. Yeboah each liable to repay any monies provided to them by Intact pursuant to paragraph 47(1) of the Schedule, subject to the limitations set out in subsections 47(2) and (3)?
Is Intact entitled to its Expenses?
Mr. Anane and Ms. Yeboah were not involved in an “accident” as defined in the Schedule.
Intact has established that Mr. Anane and Ms. Yeboah wilfully misrepresented the circumstances surrounding the alleged accident when applying for accident benefits.
Mr. Anane and Ms. Yeboah are each liable to repay any monies given to them by Intact pursuant to paragraph 47(1) of the Schedule, and
Intact is entitled to compensation for its Expenses.
At the commencement of the hearing the lawyer for Mr. Anane and Ms. Yeboah brought a motion seeking:
An Order that Intact’s documents which have not been properly served on Mr. Anane and Ms. Yeboah in accordance with the Dispute Resolution Practice Code, be excluded from evidence.
An Order that Intact’s witnesses as well as the documents prepared by them, be excused from testimony at the hearing of the Preliminary Issue in these matters.
An Order that the costs of the motion be made payable by Intact to Mr. Anane and Ms. Yeboah.
Intact’s documents are included as evidence.
Intact’s witnesses as well as the documents prepared by them, are permitted at the hearing of the Preliminary Issue in these matters.
The issue of costs for this motion was deferred until after the disposition of the hearing in these matters.
Mr. Anane and Ms. Yeboah’s Position on the Preliminary Motion:
Intact had failed to provide the requested productions listed in “Appendix B” of Mr. Anane and Ms. Yeboah’ Application for Arbitration (Form C), and
Intact failed to provide the requested documents in support of their experts’ evidence, to Mr. Anane and Ms. Yeboah at least 30 days before the scheduled Preliminary Issue Hearing.
Intacts’s Position on the Preliminary Motion:
Intact submitted that they did not receive some of Mr. Anane and Ms. Yeboah’ documents until commencement of today’s hearing. Further, Intact had provided materials requested by Mr. Anane and Ms. Yeboah to Mr. Anane and Ms. Yeboah’ counsel on March 27, 2014.
The Arbitrator noted that both counsel abandoned all sense of decorum in arguing their positions. Some of the submissions took place both ‘on the record’ and ‘off the record’. The Arbitrator provided counsel with three options:
Adjournment of the preliminary issue hearing until a date greater than 30 days hence, to allow the parties an opportunity to review all the documentation in a timely manner and consult about the same with their clients, or
Adjournment of today’s proceedings for an hour or slightly more, if necessary, for counsel to review all the documentation in a timely manner and consult about the same with their clients, or
Proceeding as schedule with the Arbitrator ensuring counsel have every opportunity to conduct direct examination, cross-examination, reply, to permit them every opportunity to fairly present the evidence and submissions in this matter.
Counsel advised that an adjournment and re-convening of this matter would mean a delay of many months due to their busy schedules. The Arbitrator stated that such a lengthy delay was unfair to Mr. Anane and Ms. Yeboah who had already been waiting many months for this hearing.
The Arbitrator ruled that the hearing would proceed after a very brief recess for the following reasons.
The Arbitrator pointed out to counsel that the Introduction to the Code states, in part, “the Code creates rules for timely, cost-effective and fair dispute resolution services provided through FSCO’s Dispute Resolution Group….”
FSCO is a tribunal and as such, is governed by its enabling legislation and the Statutory Powers Procedure Act. As a tribunal, FSCO is allowed more latitude than one is subject to in a proceeding before a Court. As an example, tribunals are permitted to allow hearsay evidence (subject to certain conditions) in a hearing. This latitude allows the opportunity for a more “timely, cost-effective and fair dispute resolution process.” In addition, Mr. Anane and Ms. Yeboah did not indicate how they were prejudiced by Intact’s late filing of documents and why they did not file their own documents until the morning of the hearing. Considering these factors the Preliminary Issue did proceed forthwith.
The Preliminary Issue: Testimony
The evidence and testimony of Mr. Anane and Ms. Yeboah was oral as well as in the form of provision of the transcripts of their respective Examinations under Oath. They spent most of their early years in Ghana and Twi is their first language. During the hearing, most of their oral testimony was through an interpreter.
On March 26, 2010, at approximately 8:30 p.m., Ms. Yeboah testified that she was driving a brown 1998 Ford Windstar southbound on Jane Street in Vaughan, ON. Mr. Anane testified that he was a passenger in the front seat. They both stated that there were two other passengers in the vehicle. As they approached the ‘T’ intersection of Cidermall Avenue, they purportedly collided with a red 2010 Dodge Journey that failed to stop before entering the southbound lane on Jane Street.
On June 21, 2010, Mr. Anane and Ms. Yeboah submitted their respective claims for accident benefits to Intact.
Ms. Yeboah’s Testimony:
Ms. Margaret Yeboah stated that she was born October 4, 1977, in Canada, and moved to Ghana at one year of age. She returned to Canada in 1998. She is a single mother with 3 children. At the time of the accident, she had worked for the previous eight years as a certified Personal Support Worker, assisting the elderly and the infirm. Since 2006, she has been employed by Highbourne Lodge Care Centre. Her starting salary was $16.75 per hour, and she currently earns $20.11 per hour. She resides in the Etobicoke area of Toronto.
She testified that she never had any traffic convictions or a criminal record prior to the accident in this matter. Under cross-examination, she admitted that she had a previous motor vehicle accident in March, 2010, but provided no further details.
At the time of the accident, she and Mr. Anane were very close friends. In the afternoon of June 21, 2010, she picked up Mr. Anane at his home and they had travelled around the vicinity, undertaking some errands and doing some shopping. During this period of travel time, Mr. Anane received a call on his cellphone from a friend who requested that he and his girlfriend be picked up at the Vaughan Mills Shopping Centre. Mr. Anane proposed they all spend the evening at a Ghanaian festival that evening in the Toronto area. Subsequently, Ms. Yeboah picked up Mr. Anane’s friends, Mr. Tsekpo and Ms. Oladokan. Ms. Yeboah testified that she had never previously met Mr. Tsekpo and Ms. Oladokan.
Ms. Yeboah stated that she was driving south on Jane Street at approximately 65 kilometres per hour at approximately 8:30 p.m. She testified that as she approached the intersection of Cidermall Avenue, a red Dodge car, driving east at approximately 65 kilometres per hour, failed to heed the stop sign and drove onto Jane Street, turning south in front of her vehicle, with the result being that the front end of her Ford Windstar collided with the left side of the Dodge vehicle. She stated that the airbags in her vehicle deployed and she struck her head and chest on the steering wheel, temporarily losing consciousness for 15 to 20 seconds. She claimed she was assisted out of the vehicle by Mr. Anane. Shortly thereafter they left the scene of the accident with a friend of Mr. Anane who arrived and picked them up. They did not call the police, fire department or the Emergency Medical Services to the scene of the accident. She alleged that both vehicles were towed from the accident scene.
Ms. Yeboah testified that her vehicle had no previous damage other than a few minor scratches. She stated that, to her knowledge, there were no witnesses to the accident, although another person came upon the scene and provided them with a telephone number for a vehicle towing company.
Other than temporarily losing consciousness at the time of the accident, Ms. Yeboah testified that she felt no pain that day. However, the following day she began to experience pain as a result of the accident. On March 30, 2010, Ms. Yeboah reported the accident to the York Region Police.
Mr. Anane’s Testimony:
Mr. Anane testified that he was born on June 20, 1968 and currently resides in Etobicoke, living with a girlfriend. He was born in Ghana and emigrated to Canada in 1991. He currently works as a carpenter earning $17.70 per hour.
During his examination in chief, he stated that on the day of the accident, he was at home and realized he needed to do some shopping for food and called Ms. Yeboah who was his girlfriend at that time. She picked him up at his home; they did some shopping and then went to Ms. Yeboah’s home.
Mr. Anane testified that he had been at Ms. Yeboah’s home for about 2½ hours on the afternoon of March 26, 2010, when he received the call from Mr. Tsekpo requesting that he and Ms. Oladokan be picked up at Vaughan Mills Centre. Ms. Yeboah drove to Vaughan Mills Centre and they picked up both Mr. Tsekpo and Ms. Oladokan. He stated that the four of them planned to attend a party that evening.
He corroborated Ms. Yeboah’s evidence that they were travelling south on Jane Street at approximately 60 kilometres per hour when they struck the red Dodge car that failed to stop before entering the southbound lane on Jane Street. He stated that Ms. Yeboah had begun to apply the brakes prior to the accident, but there was not enough time for her to stop before the collision occurred. He did not feel the vehicle slow down prior to the accident.
Following the accident, he called a friend who came and picked them up as Ms. Yeboah’s vehicle had to be towed from the scene of the accident. He testified that they did not bother to call the police because there were no injuries and thus he felt it was not necessary to involve the police. At the time of the accident he did not feel any pain or injuries. However, a couple of days later he did experience some pain which he felt was a result of the accident.
He testified that Ms. Yeboah had told him a couple of days after the accident that she was feeling quite a lot of pain that was apparently more severe than he was experiencing and she wanted to call the police. Together they went to the police and reported the accident about three days after the accident. Under cross-examination, he confirmed that they reported the accident to the police on March 30, 2010, four days after the accident. He stated that, to his knowledge, Ms. Yeboah’s brown 1998 Ford Windstar was damage-free prior to the accident. He stated that he could not recall if he had ever been in a previous motor vehicle accident.
Intact submitted that their subsequent accident investigation revealed that Ms. Yeboah’s ‘accident’ on March 26, 2010 did not occur as alleged by Ms. Yeboah and Mr. Anane. They presented Mr. K and Mr. S as expert witnesses on vehicle accident reconstruction.
Mr. K’s Expert Evidence:
Mr. K is a licensed Consulting Professional Engineer, principal of Kodsi Engineering Incorporated, and specializes as a motor vehicle accident investigator with over 20 years of experience conducting forensic investigations. He was retained by Intact to conduct an investigation in this matter. He testified that he and his colleague, Mr. RE, BA Sc., MBA, P.Eng., conducted a thorough examination of all the documents provided to him by Intact and took photographs of Ms. Yeboah’s 1998 brown Ford Windstar. He examined several photographs taken from different angles of the 2010 Dodge Journey provided to him by Intact. He stated that his investigation indicated that there was a substantial difference between the testimony of Ms. Yeboah, Mr. Anane, and the physical evidence on the vehicles. It was his expert opinion, that the accident as alleged by Mr. Anane and Ms. Yeboah never occurred. He stated as his reasons the following facts:
If the red 2010 Dodge Journey had proceeded onto Jane Street and been struck on the left side by the 1998 Ford Windstar, there would have been an angle of about 30° between the vehicles. Considering the alleged speed that both vehicles were traveling (60 to 65 km/h), in his opinion, the vehicles would have rotated away from each other due to the impact and most likely endured multiple subsequent contacts between the Ford Windstar’s right side and the Dodge Journey’s left side.There were no dents or deformation of components along the sides of the vehicles.
Had the accident occurred as alleged, there would have been extensive initial contact damage on the right front corner of the 1988 Ford Windstar.Instead, the damage on the Ford Windstar was not substantial and evenly distributed across its front end.
Had the accident occurred as alleged, there would have been extensive initial contact damage to a small area on the left side of the Dodge Journey.Inspection of the photographs of the damage to the Dodge Journey revealed that the damage to that vehicle was spread over a large area covering the lower portion of both doors on its left side.
Had the accident occurred as alleged, and the Dodge Journey was traveling forward when impacted by the Ford Windstar, there should have been some evidence of longitudinal scratches and/or scuffs along its left side. No such damage was observed on the Dodge Journey.
Had the 1998 Ford Windstar been traveling at 60 to 65 km/h as alleged, upon impact, the damage to the Ford Windstar would have been much more severe than what was observed.At that alleged rate of speed, there would have been damage to the Ford Windstar’s front fenders either through crushing or being pushed towards the rear of the vehicle.There was no such evidence.In his opinion, the damage to the front end of the Ford Windstar was probably caused when the vehicle was traveling at 20 km/h or less.
The damage on the brown 1998 Ford Windstar’s front end, as well as on other areas of the vehicle did not match the color of the red 2010 Dodge Journey or any of the features on the left side of the Dodge Journey. Instead, there were vertical black scuffs and blue paint transfer marks under the right headlight of the brown 1988 Ford Windstar. In his opinion, these blue paint transfer marks appeared consistent with the shape and color of the digits on a license plate.He further opined that it was highly unlikely that a license plate was mounted on the left side of the red Dodge Journey.Rather, in his opinion, the damage to the front end of the Ford Windstar appeared to be caused by a rear-end or head-on collision with another vehicle.He opined that this was inconsistent with Mr. Anane and Ms. Yeboah’s testimony that the 1998 Ford Windstar had never been involved in a motor vehicle accident and there was no pre-existing damage to the vehicle.
The black longitudinal scratches and scuffs on the left corner of the Brown 1998 Ford Windstar’s front bumper cover did not match the color of the red 2010 Dodge Journey or any of the features on the left side of the Dodge Journey.Also, if the two vehicles had made contact as Mr. Anane and Ms. Yeboah reported, it stretches credibility to believe that this area would have come into contact with the 2010 Dodge Journey’s left side.Thus, in his opinion, this damage was unrelated to contact between the two vehicles.
The longitudinal scratches on the left and right sides of the 1998 Ford Windstar could not have been caused by the alleged accident as the Windstar’s left side would not have come into contact with the Dodge Journey.He opined that there would have been insufficient relative movement between the vehicles to have caused such longitudinal scratches on the Windstar’s right side and there was not any corresponding damage on the Dodge Journey.Also, the yellow longitudinal scuffs on the Windstar’s rear left side did not match the red color of the red 2010 Dodge Journey.
The 2010 Dodge Journey’s left front fender showed some slightly angled, almost vertical scratches above the left front wheel.These did not match up with the crushed area on the 2010 Dodge Journey’s left side and appeared to be separate from the crush damage.
He opined that the damage to the front end of the Ford Windstar showed no notable structural deformation that would’ve caused the airbags to deploy.Further, the damage to the left side of the 2010 red Dodge Journey was relatively low in severity and was inconsistent with the allegations that the impact occurred at 60 to 65 km/h.
He stated that that the deployment of the airbags in the brown 1998 Ford Windstar was more likely related to the black scuffs and blue paint transfers on its right front which probably occurred during an unrelated rear-end or head-on collision.
He could not explain the melted area discovered on top of the driver’s side airbag.In his opinion, this melted area was not typically observed after an airbag deployment.
Mr. S’s Expert Evidence:
Mr. Robert S has been a principal of Collision Analysis and Reconstruction, a firm that provides case analysis and expert testimony with regard to collision reconstruction issues, since 1999. From 1986 until 1999, he was a Sergeant with the Ontario Provincial Police (OPP) in charge of the development and coordination for the Technical Collision and Reconstruction Programs at the OPP Academy. Previously, he spent nine years with the Metropolitan Toronto Police.
Mr. S was retained to analyze the circumstances around this alleged accident and to provide an opinion to Intact. He deposed that he was provided with the York Regional Police Services Collision Reporting Centre collision summary report; the Intact history claim notes with respect to the reported collision of concern dated March 27, 2010; the statutory declaration filed by Margaret Yeboah; the Intact Insurance damage appraisal and photographs with respect to the 1998 Ford Windstar; the Enterprise Rent-A-Car Inc. damage appraisal and photographs with respect to the 2010 Dodge Journey.
He stated that he was not able to personally examine the 2010 Dodge Journey. On June 4, 2010 he did examine and photograph the 1998 Ford Windstar at Impact Auto Auctions in Stouffville, Ontario. In his professional opinion, this accident never occurred as alleged by Mr. Anane and Ms. Yeboah. He based his opinion on several factors:
The horizontal height or elevation and the profile of the damage on both vehicles indicated they had not been involved in a collision. The damage to the driver’s side door of the red 2010 Dodge Journey was well below the height of the bumper on the 1998 Ford Windstar. He testified that when a fast-moving vehicle suddenly applies its brakes the front end of the car tends to dip downwards vertically. Even if the Ford Windstar was in full braking mode, its front bumper would still have been elevated above the damaged area on the side of the Dodge Journey.
Neither the Ford Windstar nor the Dodge Journey showed any evidence of transfer of paint from the other vehicle. He stated that when painted components come into contact with each other in a collision there is a heat exchange which results in paint melting and smearing. As a result, paint will be transferred to the opposing vehicle.
In his opinion, the profile of the damage to the front of the 1998 Ford Windstar was consistent with a collision involving a stationary object rather than a vehicle in motion.
Had the Ford Windstar been traveling at 60 to 65 km/h as stated by Mr. Anane and Ms. Yeboah, the extent of damage to both vehicles in a collision would have been much more extensive.
Had the airbags been deployed in the accident as reported by Mr. Anane and Ms. Yeboah, the driver’s-side airbag should have prevented Ms. Yeboah’s head from striking the steering wheel as she alleges.
While airbag deployment can be associated with an abrupt decrease in speed (often referred to as Delta-V), there is no evidence that Ms. Yeboah had vigorously applied the vehicle’s brakes.
There was no evidence of displacement or deformation of the corroded license plate bolts located on the leading edge of the front bumper of the Ford Windstar as would have been expected in this type of alleged accident. Similarly, there was no evidence of any license plate bolt impression damage to the left side of the Dodge Journey as would have been expected.
Had the Ford Windstar struck the left side of the Dodge Journey as alleged, there should have been some evidence of the blue and white paint from the Ford Windstar’s front license plate on the left side of the Dodge Journey. No such evidence existed.
The Ford Windstar suffered damage to the front of the vehicle that was consistent with a perpendicular or angular impact and not that which would result from colliding with the reported right turning movement of the Dodge Journey at the point of impact.
In his experience, a right-turning vehicle will normally turn a corner with the speed of approximately 15 km/h, not at 60 to 65 km/h.
He stated that he was unable to find any correlation between the abrasion damage on the 2010 Dodge Journey that corresponded with the profile of any component on the frontal aspect of the Ford Windstar.
In his opinion, the most troubling discrepancy was that there was no extensive crushing on the front end of the Ford Windstar and no injuries to any of the passengers in that vehicle – which would have been expected on any accident where the speed exceeded 50 km/h. Further, there is no report of a debris field from the Ford Windstar at the scene of the accident.
Section 2(1) of the Schedule states:
In this Regulation,
“accident” means 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;
Section 47(1) of the Schedule states:
47. (1) a person shall repay to the insurer,
(a) any benefit under this regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of willful misrepresentation or fraud;
47. (3) the obligation to repay a benefit does not apply unless the notice under subsection (2) is given within 12 months after the payment was made.
Analysis and Findings
Mr. Anane and Ms. Yeboah claim that as a result of the ‘accident’ that occurred on March 26, 2010, they suffered injuries and sought statutory accident benefits under the Schedule.
The Arbitrator found it curious that, in an accident where Ms. Yeboah claimed to suffer a temporary loss of consciousness, and her vehicle suffered damages that made it inoperable such that it had to be towed from the accident scene, she and Mr. Anane felt it was unnecessary to immediately notify the police.
Mr. Anane’s statements respecting when he reported the accident to the police were inconsistent. Under direct examination, he stated he went to the police three days after the accident. Yet, under cross-examination, he stated it was four days after the accident.
Mr. Anane and Ms. Yeboah provided conflicting evidence as to where they were located when Mr. Anane received the telephone call from Mr. Tsekpo. Ms. Yeboah stated they were in her vehicle driving when Mr. Tsekpo called Mr. Anane. Yet, Mr. Anane deposed that it was while he and Ms. Yeboah were spending time at her home, where they had been for 2½ hours, when he received the cellphone call from Mr. Tsekpo.
Mr. Anane and Ms. Yeboah did not present any corroborating oral evidence by either Mr. Tsekpo or Ms. Oladokan, who were allegedly passengers in Ms. Yeboah’s Ford Windstar at the time of the accident.
The Arbitrator found the collision reconstruction opinions by both Mr. K and Mr. S far more convincing than that of Mr. Anane and Ms. Yeboah. Further, the evidence of these two expert witnesses was not shaken on cross-examination.
In the Preliminary Issue Document Brief of Mr. Anane and Ms. Yeboah, is a copy of a Self- Reporting Collision Report, ostensibly completed by EA of Rochester, Minnesota, dated March 31, 2010, wherein he states he was the driver of the red 2010 Dodge Journey involved in the March 26, 2010 accident with Ms. Yeboah. This document was not lead as evidence nor was its veracity tested by cross-examination. The Arbitrator declined to accept it as evidence in this matter. Mr. EA was not called as a witness to explain the inconsistencies as deposed by Messrs. K and S.
Thus, on a balance of probabilities, the Arbitrator found that Mr. Anane and Ms. Yeboah were not involved in an accident with the red 2010 Dodge Journey on March 26, 2010. Accordingly Mr. Anane and Ms. Yeboah have failed to meet their evidentiary burden of establishing that they were involved in an accident as defined in section 2(1) of the Schedule.
The Arbitrator found that Intact has established, on a balance of probabilities, that Mr. Anane and Ms. Yeboah have wilfully misrepresented the circumstances surrounding the alleged accident when they applied to Intact for accident benefits. Mr. Anane and Ms. Yeboah did not provide any evidence or submissions to refute Intact’s claim for repayment of monies paid to them by Intact.
In light of the findings, Mr. Anane and Ms. Yeboah are each liable to repay any monies provided to them by Intact pursuant to section 47.(1) of the Schedule, subject to the limitations set out in subsections 47(2) and (3).
The Arbitrator found that Intact is entitled to its expenses of this preliminary issue hearing.