Volume. 6 Issue. 6 – February 16, 2022
We begin this week with the Tribunal considering two incidents, both ultimately being found as “staged” collisions. Following Tribunal jurisprudence, in each instance, both were found not to satisfy the definition of “accident” in accordance with the Schedule.
The final case, a reconsideration dealing with what constitutes a ‘completed’ OCF3 – the Vice-Chair, eschewing what seemed settled jurisprudence as established by the Tribunal, states “I correctly considered and applied the applicable legislation.”
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In Trending – Precedents Followed in 2 Staged Accidents
Collision Not “Accident” Despite Police Attending – In Gyesus v Royal Sun Alliance (21-001119), the Tribunal confirmed that the parties were indeed in an “accident” however not with each other, even though police attended at the “scene”.
It was the opinion of the RSA’s expert that “the vehicles were in separate collisions with other vehicles that were not involved in this accident.” The expert found that the extracted data from the “black boxes” of each vehicle were not related to the same collision, and further the accident as described would “defy the law of physics”.
Gyesus relied upon the fact that the police attended and created an accident report. The Tribunal however found that “having the police attend at the scene and create a motor vehicle accident report is not sufficient proof to establish an accident occurred as defined in section 3 of the Schedule in light of some inconsistencies from her evidence and the conclusions set out in the (Respondent expert’s) Report.” The Tribunal was further influenced by there being no satisfactory reason for the vehicles having been towed from the accident scene in London to Mississauga as well as the failure to call any of the available corroborating witnesses, or to produce requested phone records of calls alleged to 911 and the police.
It was noted that in a prior decision of the Tribunal, M.D. v. Intact, it was “determined that a staged accident is an intentional act that is contrary to public policy. Allowing a party to claim accident benefits from a staged accident would be contrary to the public policy and section 118 of the Insurance Act which reads:
“Unless the contract otherwise provides, a contravention of any criminal or other law in force in Ontario or elsewhere does not, by that fact alone, render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage…”
Not Sure What Happened, But Not “Accident” – Similarly, in R. H. v Wawanesa (18-011887), the Tribunal considered whether an “incident” as described was an accident”. Ultimately, the inconsistencies between the accounts of the passengers, driver and that of R. H. were “so copious that it calls into question the totality of the evidence of how the incident occurred.” It “behooves logic” that “three people who supposedly experienced the same traumatic day have differing recollections for that day.”
As Wawenesa’s expert confirmed the vehicle in question to have been in a decided state of disrepair that would have been noticeable, it further “behooves logic that three people in a vehicle driving for a full afternoon on highways and city streets noted, provided statements under oath, and testified that there was nothing at all noticeably wrong with the vehicle.”
Ultimately, the Tribunal held that “While I cannot with any specificity say what transpired on the day of the incident, or the cause for the contact of the tree and the vehicle and the events in and around this incident or how the vehicle and tree made contact, I am persuaded that the applicant’s account of what transpired is not to be believed…”.
As in the previous case, reference was made to M.D. v Intact, that while not binding “has been adopted by the Tribunal in other decisions and thus, I adopt that holding that a staged accident is not an accident.”
Prior Tribunal Decisions “Are at Most Persuasive”
Prior Tribunal Decisions Persuasive at Most? – In a prior issue, we featured a case Munu Munu v Aviva (20-005924), wherein the Vice-Chair “doubled down” on a unique interpretation requiring an OCF3 to endorse NEB entitlement in order for the OCF3 to be considered complete.
Hearing its own reconsideration, the Vice-Chair once again opted to double down, concluding that “I correctly considered and applied the applicable legislation.” The Tribunal reiterated the contention that “a completed” disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for NEB”.
The Vice-Chair found that “I did not violate the rules of procedural fairness or make any errors of fact and law by failing to follow Tribunal and FSCO decisions cited by the applicant. None of these decisions are binding on me and, after consideration of all of the case law submitted by the applicant, I found them unhelpful…”. Countering the Applicant’s contention, the Vice-Chair further confirmed “stare decisis does not require a tribunal to follow its own decisions which are, at most, persuasive.” Therefore, the failure to follow these non-binding decisions “is not an error or violation of procedural fairness.”
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