January 7, 2020 by Greg Meckbach
An insurer suspicious about a vehicle accident obtains evidence that the occupants of the different vehicles were talking by phone to one another.
But without knowing exactly who was talking and what the vehicle occupants were talking about, this type of phone record does not necessarily point to a conspiracy – at least in the eyes of one British Columbia judge.
In Insurance Corporation of British Columbia v. Mansur, released Dec. 31 by the B.C. Supreme Court, Justice Michael Brundrett found Basim Mansur – along with Yasir Khayyoo – staged a collision on Aug. 17, 2013 in Surrey. The pair was found jointly and severally liable to ICBC for $34,007, most of which was from vehicle damage claims. The court also ordered Mansur to pay ICBC $10,000 in punitive damages.
Khayyoo is not liable for punitive damages, only for general and special damages. Khayyoo was not the “operating mind” behind that particular collision, the judge reasoned. Justice Brundrett’s decision was based largely on admissions from Khayyoo.
In the lawsuit, ICBC alleged fraud against 13 defendants in three separate collisions. A trial was held over 18 days in 2019.
In the Aug. 17, 2013 collision, Mansur was driving a Porsche, which was rear-ended by a Chevrolet Uplander van driven by Khayyoo.
In an examination for discovery in March, 2018, Khayyoo denied deliberately causing the collision. But in a second examination for discovery seven months later, Khayyoo admitted that the collision was staged. Khayyoo said he was new to Canada, had lost his father in June of 2013 and needed money for expenses. He alleged that Mansur offered to help by coming up with a plan to stage an accident.
ICBC was also suing Mansur in connection with a 2010 collision, in which Mansur claimed he was a passenger of a vehicle. ICBC alleged that Mansur was not in fact in the vehicle at the time it was hit. A Suzuki driven by Mansur’s sister was rear-ended. Mansur got $18,000 as a final settlement in his property claim as well as $533.63 in accident benefits. ICBC did not look at the claim again until three years later, after two 2013 collisions within days of each another. Regarding the 2010 collision, Justice Brundrett was not completely convinced that Mansur was not in fact in the back seat. So the court tossed ICBC’s civil fraud claim against Mansur and two co-defendants in connection with the 2010 collision.
In the Aug. 17, 2013 collision (which the court ruled was staged by Mansur and Khayyoo), two passengers were riding in the back seat of Khayyoo’s vehicle. ICBC paid a combined total of about $1,300 in medical expenses for the passengers. ICBC alleged the passengers were involved, but Justice Brundrett was not convinced.
ICBC gave evidence of calls between a phone number associated with Mansur and one of the passengers, on Aug. 16 and 17.
Mansur said he loaned one of his cell phones to a man named “Robin” because Robin had no credit to get a phone. Mansur said Robin has since moved to the United States and Mansur has lost track of him. Although the calls are suspicious, the phone record presented by ICBC do not establish who was talking on the phone at the time and what they were talking about, Justice Brundrett noted. Therefore the evidence falls short of establishing the passenger was involved in a conspiracy.
Phone evidence was also used by ICBC in the same lawsuit in a collision that occurred six days earlier. In that case, a 2003 Audi A4 sedan travelling on a side-street ran a stop sign and struck a 2000 Nissan X-Terra SUV on the passenger side. It happened about 1:45 a.m on Aug. 11, 2013. Justice Brundrett dismissed civil fraud claims against the defendants in that particular collision.
There were four 17-year-olds in the Audi. There was disagreement as to whether Johni Soko or Maykil Zaya was actually driving the Audi. Initially Soko said he was driving but later said it was Zaya who was driving. Soko had borrowed the Audi from his sister, who did not own it but was listed as the principal driver.
“The evidence about the drivers of the Audi A4 switching places does not necessarily support a staged collision,” Justice Brundrett wrote. Instead, the evidence points to “an ill-conceived plot” among the vehicle occupants to falsely claim Soko was driving. Soko had borrowed the car from his sister and did not necessarily have permission to let another teen drive it.
Melad Hana was the owner and driver of the Nissan that was T-boned by the Audi. Hana received five calls between 10:00 p.m. and 2:00 a.m. Those calls were from a cellphone number associated with Soko. One of those calls was made at 1:45 a.m. about the time of the collision.
Hana insisted he was talking that Yaqoob Soko, Johni Soko’s brother. Hana said Yaqoob Soko is a client and friend of his. Meanwhile, Johni Soko testified that he had his brother Yaqoob’s cell phone with him that evening. Johni said that other people in the Audi, including Zaya, used the phone. Johni Soko said he did not know who Zaya was speaking with when Zaya used the phone.
“The inference that Mr. Zaya and Mr. Hana were talking about planning the collision is certainly possible, but it is speculative too,” wrote Justice Brundrett, explaining why the fraud lawsuit against Hana is dismissed. “The evidence only shows that calls were placed. It does not prove who was speaking on the phone or what was said.”
There is no “clear evidence” that Hana was speaking to an occupant of the other vehicle the night of the collision, Justice Brundrett wrote.
Hana’s wife was a passenger in the Nissan. She was taken to hospital and later had about $900 worth of chiropractic treatment. It is unlikely she would have had that much treatment had her injuries not been legitimate, Justice Brundrett found. Hana only claimed $30.15 from ICBC for pain medication and did not take time off work.
“Mr. Hana insured his Nissan in a minimal way to cover liabilities. He did not pay for collision coverage. I find that if Mr. Hana was going to stage an accident, he likely would have opted for greater coverage,” Justice Brundrett wrote. “The sum total of Mr. Hana’s windfall from perpetrating this alleged fraud was thus just over thirty dollars and the towing fee for his Nissan.”