November 14, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Andrew Diamond
Date of Decision: October 30, 2015
Ms. Askar alleges that she hurt in a car accident on February 18, 2010. She applied for statutory accident benefits from State Farm for $25,200.00 for Caregiver Benefits and $8,400.00 for Housekeeping and Home Maintenance Benefits, payable under the Schedule. State Farm denied the benefits, and after failed mediation Ms. Askar applied for arbitration at the FSCO.
Pending the Arbitration Hearing, State Farm sought to have a Preliminary Issue Hearing to determine as to whether Ms. Askar was involved in an “accident”.
The issue in this Preliminary Issue Hearing is:
Was Ms. Askar involved in a motor vehicle accident on February 18, 2010, as defined in the Schedule?
Ms. Askar was not involved in an accident as defined in the Schedule, and her Application for Arbitration is hereby dismissed.
EVIDENCE AND ANALYSIS:
There is no dispute that on February 18, 2010, a 2003 Dodge Caravan, owned by Ms. Askar but driven by her son Mr. O, collided with a 2007 GMC Acadia driven by Mr. M, in a parking lot. What is at issue is whether Ms. Askar was a passenger in the Caravan at the time of collision. Mr. O had a G1 licence at the time, and Ms. Askar claims she was the fully licenced driver in the passenger seat. Mr. M claims Ms. Askar was not a passenger in the Caravan.
Ms. Askar’s testified that when she got in the car, she sat in the passenger’s seat and reclined the seat to give her back pain some relief. Just as Ms. Askar and her son were about to pull out of their parking spot, a neighbour parked near them and came over to say hello after having seen Ms. Askar’s son in the driver’s seat of the Caravan. After a brief hello, Ms. Askar testified that she and her son went to leave to go home and while exiting the parking aisle collided with the Acadia that was travelling in the laneway in front of the mall.
Ms. Askar and Mr. O testified that Ms. Askar was a passenger in the Caravan at the time of the collision. Mr. M and Mr. A testified that Ms. Askar was not in the Caravan at the time of the collision.
Ms. Askar testified that at the time of the collision she remained in the Caravan while her son, who speaks better English, got out to talk to the driver of the Acadia. Because the two vehicles were blocking traffic, her son and the driver of the Acadia agreed to move their vehicles to nearby parking spots in the lot to continue their conversations. Ms. Askar testified that only once her son had re-parked the Caravan did she get out of the vehicle to go into Shoppers Drug Mart to try and find her neighbour, who Ms. Askar said had better English and could help her with the driver of the Acadia.
Ms. Askar’s testified that she saw Ms. DE leaving the drug store. Ms. Askar testified that while she was talking to Ms. DE her son called her in a panic looking for the insurance papers for the car, and she and Ms. DE returned to where the cars were parked to talk to the family from the Acadia.
Ms. Askar testified that because her son was young she wanted to try and avoid involving the insurance companies, and so attempted to make arrangements to pay for the damage directly. However, Ms. Askar’s evidence was that while the driver of the Acadia said the accident was Mr. O’s fault, Ms. Askar advised the other driver that it was his fault and that she wanted him to pay for the damage to the Caravan. Ms. Askar testified that after half an hour or so it was agreed that Ms. Askar would pay for the damage to the Acadia and that Mr. M agreed to pay for the damage to the Caravan. Ms. Askar agreed under cross-examination that she refused to give Mr. M her insurance details but denies ever having said that she did not have insurance. Ms. Askar believes the negotiations took about 20 to 30 minutes at the end of which she believed there was an agreement to get estimates for the damage. Ms. Askar’s evidence was that Ms. DE was present during the negotiations but did not participate.
It is Ms. Askar’s evidence that the next day she was called at home by the Toronto Police Service and told that Mr. O had to attend at 11 Division because he had been in an accident and did not have insurance. Ms. Askar advised the police that Mr. O was her son and that she did have insurance. Mr. O and Ms. Askar did attend at 11 Division in the afternoon of February 19, 2010 and Mr. O completed a “Self-Reporting Collision Report”.
On cross-examination, counsel for State Farm attempted to impeach Ms. Askar’s testimony, in particular about Ms. DE. As part of the claims process, State Farm examined Ms. Askar under oath on December 13, 2010, some 10 months after the accident. During the examination, Ms. Askar was asked several questions regarding the description and identification of Ms. DE/witness. There were discrepancies in Ms. Askar’s testimony about the name of the witness, and the whether she in fact saw the accident or attended the scene afterward.
When asked about the discrepancy in the name of the witness Ms. Askar testified Ms. DE had an English nickname. However, she did not explain the discrepancy between Ms. DE having apparently witnessed the accident and Ms. Askar’s testimony before the Arbitrator that she went to get Ms. DE after the accident.
Mr. O’s testimony is mostly consistent with Ms. Askar’s, however, Mr. O testified that his mother was gone for five to ten minutes before returning with Ms. DE; Mr. O testified that, while he was about to call his mother for her to bring the insurance information, he in fact did not call her; there was never a discussion about the driver of the Acadia paying for the damage to his mother’s car; and that Ms. DE was involved in the negotiations with the driver of the other car. Mr. O testified that he knew Ms. DE as Ms. DE (her Somali name).
Mr. O also testified about attending at the police station and completing Exhibit 6. Under cross-examination, counsel for State Farm directed Mr. O’s attention to the question in part 3 of the form which says “Number of Occupants of the Vehicle” and Mr. O’s answer was one. Mr. O testified that the police did not explain to him what that meant and he thought it meant how many passengers were in the car with him.
Ms. DE testified that she and Ms. Askar were acquaintances at the time of the collision, they were both from Somalia and both lived in the same townhouse complex. She testified that she went to the drug store to buy paper towels and that when she was parking she saw Mr. O at the wheel of Ms. Askar’s van. Ms. DE parked next to the van and then saw Ms. Askar and said hello before going into the drugstore. Ms. DE testified that Ms. Askar was reclined in her seat and that she had a shopping bag on her lap. Ms. DE testified that as soon as she came out of the store, Ms. Askar approached her and told her that she had had an accident and asked her to be a witness and help with the driver of the other car as he was speaking English.
Ms. DE admitted that she did not see the accident itself so could not say whether or not Ms. Askar was in her vehicle at the time of the accident. However, Ms. DE testified that when she and Ms. Askar approached the two vehicles, they were still at the site of the collision. This is inconsistent with both Ms. Askar’s and Mr. O’s evidence, although it is consistent with the evidence of Ms. Askar given at her Examination under Oath.
Ms. DE testified that when she and Ms. Askar approached the vehicles Mr. O was talking to three people however, she testified that she could not remember exactly what they looked like as it was a long time ago. Ms. DE also testified that she was involved in the conversation with the driver of the other vehicle but cannot remember what it was she said.
On cross-examination, Ms. DE testified that her nickname was Ana Aeinap, although she admitted that her nickname does not appear anywhere in her social media presence including Facebook or otherwise.
Mr. A testified his wife works at the at Sheridan Mall and that he was sitting in his car parked in front of the drug store waiting for her. Mr. A testified that he regularly picks his wife up from work and is familiar with the parking lot and on that day he was looking towards the entrance of the Shoppers Drug Mart when he saw over his shoulder a vehicle moving quickly from the other side of the mall parking lot and then he heard a bang as the two vehicles collided. Mr. A then testified that he saw a young man get out of the van and talk to the driver of the SUV. Mr. A’s evidence is that he got out of his vehicle and approached the drivers of the two vehicles that had been in the accident and heard the driver of the van ask the driver of the SUV if he could wait for his mother who was in the Shoppers Drug Mart and had the papers for the van. Mr. A testified that he walked down the passenger side of the van and there was no one in the passenger seat. Mr. A testified that the driver of the SUV approached him about being a witness, and he provided his contact information, and then the two drivers moved their vehicles out of the traffic and parked them nearby. Mr. A then testified that after the vehicles had been moved, he saw a woman come out with a 12 year old girl and talk to the drivers, after which his wife came out and he then left. Mr. A testified that he was contacted one month later and was interviewed by an adjuster and gave a statement that was entered as Exhibit 11.
Mr. A did not recall seeing Ms. DE or any other woman with Ms. Askar. Mr. A also agreed that he did not mention the 12 year old girl or looking in the passenger window of Ms. Askar’s van in his March 18, 2010 statement.
Mr. M testified by video link from a court reporter’s office in New Brunswick where he was on holiday. Mr. M testified that on February 18, 2010 he was driving a GMC Acadia when it was struck by a Dodge Caravan. It was Mr. M’s evidence that he was alone in his car at the time of the accident. Immediately after the accident, a young man got out of the Caravan and approached Mr. M. Mr. M testified that the driver of the Caravan advised him that he was going to call his mother who had the insurance details. Mr. M’s evidence is that a third party then got out of another car and gave Mr. M his contact information if he needed a witness after which Mr. M and the driver of the Caravan agreed to move their vehicles out of the way and park them.
Mr. M testified that at about the same time as Ms. Askar arrived on the scene, he was joined by his wife and nephew. On July 5, 2015, some 15 days prior to the this Preliminary Issue Hearing, Mr. M provided counsel for State Farm with a will-say statement in which he said that:
Approx. 5 years ago I was at Sheridan Mall I was driving along the front of the mall with my nephew, when a van (if I recall correctly) came out of one of the parking aisles and struck the right front corner of my van…(emphasis added)
When asked about the discrepancy between his statement and his testimony before the Arbitrator that he was alone in the car, he testified that his wife was convinced that their nephew had been in the car at the time (even though she was in the mall) and he accepted her recollection. However, Mr. M testified that after having prepared the statement, but prior to the date of the Preliminary Issue Hearing, he had called his nephew to determine if, in fact, he had been in the car at the time of the collision and his nephew had advised Mr. M that he had not.
On direct examination, Mr. M was asked if it was possible that someone else was in the Caravan at the time of the accident, and he answered that:
No I don’t think it was possible as you would expect them to get out. No one was in the passenger seat.
On cross-examination, counsel for Ms. Askar suggested that the Caravan had really tinted windows and that Mr. M did not care about how many people were in the vehicle. Counsel for Ms. Askar asked Mr. M “you assumed if someone else was in the car they would have gotten out?” to which Mr. M answered “yes”.
Mr. M and the driver of the Caravan then agreed to move their vehicles to get out of the traffic. Mr. M testified that after the cars were moved, two women walked over and he asked for the insurance. One of the women said she did not want to involve insurance and Mr. M testified that that was fine but he still wanted to obtain as much information as he could, and asked the woman for the proof of insurance which she refused to produce and then advised Mr. M that she did not have insurance.
After leaving the mall, Mr. M testified that he felt uncomfortable about the woman claiming not to have insurance so he decided to go to the police station where he completed a “Self-Reporting Collision Report”. On direct examination, Mr. M testified that he filled out the form saying there was one occupant of his vehicle. Under cross-examination, counsel for Ms. Askar pointed out that Mr. M had failed to answer the question as to how many occupants there were in the other vehicle and suggested that this was because he did not know or pay attention to that as he was only concerned with getting his damage fixed. Mr. M testified that he simply missed the question on the form.
Ms. KR testified that she did not see the accident but came out of the mall shortly after the accident and asked her husband Mr. M happened. Ms. KR’s evidence was that between 5 and 10 minutes after she came out of the mall, two women approached her husband and asked if they could pay cash for the damage, which she said her husband was prepared to do; however, he was also insisting on them providing the insurance information for the vehicle.
The Arbitrator reviewed the evidence and the law, and determined Ms. Askar has the onus of proving, on a balance of probabilities that she was in an “accident”. Only four of the six witnesses were in a position to know whether or not Ms. Askar was in the car, and there are issues with the accuracy of each those witnesses’ testimony. The Arbitrator noted the unreliability of human observation and recollection that may account for many of the discrepancies in the testimony including Mr. A’s belief that there was a 12 year old girl present and only one adult woman from Ms. Askar’s side, particularly since he made no mention of a 12 year old girl in his statement given only one month after the collision. However, there are some discrepancies in the testimony that go beyond the unreliability of observation and recollection.
The Arbitrator determined that with the two very different versions of events, Ms. Askar has the onus of proving her version. Viewing the evidence as a whole, the Arbitrator concluded that Ms. Askar has failed to satisfy her burden of proof, on a balance of probabilities that she was in the vehicle at the time of the collision.