minicounsel

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 229

FSCO A14-000548

BETWEEN:

(ELIZABETH) BOLANLE AJETUNMOBI DADA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

Before:

Arbitrator Kimberly Parish

Heard:

In person at ADR Chambers on June 20 & 21, 2017 and by written submissions completed on June 26, 2017

Appearances:

Ms. (Elizabeth) Bolanle Ajetunmobi Dada participated

Mr. Richard Gorrin participated for Ms. (Elizabeth) Bolanle Ajetunmobi Dada

Ms. Elizabeth Scott participated for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Ms. (Elizabeth) Bolanle Ajetunmobi Dada (“Ms. Dada”), was injured in a motor vehicle accident (“MVA”) on May 14, 2011 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Dada, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is Ms. Dada liable to repay Wawanesa the Income Replacement Benefits (“IRBs”) she received in the amount of $28,078.96?
Is Ms. Dada entitled to receive weekly IRBs in the amount of $364.00 from November 11, 2012 to May 14, 2013?
Is Ms. Dada entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the hearing?

Result:

Ms. Dada is not liable to repay Wawanesa the amount of $28,078.96 for the IRBs received.
Ms. Dada is not entitled to receive an IRB in the amount of $364.00 from November 11, 2012 to May 14, 2013.
As no benefits are payable, Ms. Dada is not entitled to any interest.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me within 30 days of the date of the Order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

Ms. Dada was a rear passenger in a vehicle which was struck from behind by another vehicle on May 14, 2011. Ms. Dada sought IRBs from Wawanesa. Ms. Dada received IRBs at the rate of $364.00 per week for the period from May 21, 2011 until November 11, 2012, totaling $28,078.96. Wawanesa is seeking a repayment of the $28,078.96 for material misrepresentation and fraud. Ms. Dada’s counsel, Mr. Gorrin, stated that there is no basis for the IRB repayment. Mr. Gorrin further stated that Wawanesa terminated Ms. Dada’s IRBs on November 11, 2012, and Ms. Dada is entitled to outstanding IRBs in the amount of $9,413.00 from November 11, 2012 to May 14, 2013.

The Insurer’s counsel, Ms. Scott, stated that Wawanesa’s repayment claim is based on material misrepresentation and fraud surrounding her employment with an agency called Century On Time, and other material facts. Ms. Scott stated that Ms. Dada has provided no medical opinion that she meets the test for entitlement to IRBs past the stoppage date of November 11, 2012.

Ms. Dada’s Testimony

Ms. Dada testified that on February 21, 2011, she started working as a cleaner for an agency called Century On Time. Her job duties included cleaning, sweeping, mopping, and packing up at sites following the completion of construction/renovation jobs. Typically, Ms. Dada worked 40 hours per week, Monday to Friday. Ms. Dada worked weekends on two occasions to make up 40 hours for a work week when she travelled in April and May 2011. Her gross weekly income from this job was $520.00, per her paystubs from Century On Time.² The Employer’s Confirmation Form (OCF-2)³ dated May 26, 2011 noted Ms. Dada started work at Century On Time on February 21, 2011, and her last date of work was May 13, 2011.

Ms. Dada stated that she went to Nigeria from April 27 to May 2, 2011, and submitted an e-ticket⁴ to confirm this. The purpose of the trip was to bring money into Canada, as she was not allowed to transfer it. Ms. Dada submitted that she worked the weekend prior to departing and the weekend she returned from Nigeria.

On May 6, 2011, Ms. Dada saw Dr. Steven MacDonald. His clinical notes and records for that date⁵ state Ms. Dada had been in Africa for 6 weeks. Ms. Dada stated this was incorrect. She stated she had been in Africa for 6 days, not 6 weeks. Dr. MacDonald was not her regular treating doctor, but was the doctor attending at the clinic that day.

As proof that Ms. Dada returned to Canada on May 2, 2011, a photocopy of her Canadian passport was provided showing a date stamp of May 2, 2011.⁶ A copy of Ms. Dada’s original Nigerian Passport was provided at the hearing which showed a date stamp of April 28, 2011. Mr. Gorrin submitted the original Nigerian Passport is the best evidence. Nigeria is 5 hours ahead of Toronto time.

Following the MVA, Ms. Dada stated that she was unable to return to work for three years, as she experienced back pain and muscle pain in her right leg, and suffered from sleeplessness and anxiety. She attempted to start her own business, buying automobiles from auctions in Canada and shipping them to Nigeria to be sold for a profit. Ms. Dada testified that if vehicles were shipped at the end of the year to Nigeria, she would not receive payment for them until the following year. Ms. Dada stated she was not able to attend auctions following the accident due to the noise and having to stand on her feet. Ms. Dada stated she could not return to work at Century On Time, as there were no modified duties available to her. Ms. Dada attempted to return to work for 2 months in 2015 for an agency called Turn Key, but was unable to continue this work due to back pain.

Ms. Dada testified she visited her family doctor, Dr. Ajisafe, regularly and reported ongoing impairments from the MVA.

A letter dated April 25, 2017 from Dr. Ajisafe⁷ stated he first saw Ms. Dada for complaints related to this MVA on August 2, 2011.

Cross-Examination of Ms. Dada

It was noted in the “Statement of Bolanle Elizabeth Ajetunmobi Dada”, stamped by Wawanesa September 6, 2011,⁸ that Ms. Dada had stated she started working at Century On Time in January 2011 and earned an hourly rate of $14.00 or $15.00. Ms. Dada testified she disagreed with what had been noted in that statement, and said she started working at Century On Time in February 2011 and earned $520.00 per week. The transcript from an Examination under Oath (“EUO”) conducted by Wawanesa on November 17, 2016⁹ was produced. There, Ms. Dada stated she started working in January 2011 for Century On Time and earned $10.00 per hour. Further in the EUO transcript, Ms. Dada stated she did not work weekends for Century On Time.¹⁰ Additionally noted within the transcript, Ms. Dada stated she did not take any trips or vacations in 2011, and that her last trip prior to the accident was to Africa was in 2007.¹¹ Ms. Dada later stated in the EUO transcript that she was in Africa for 3 weeks in 2011, possibly in February. At the hearing, Ms. Dada stated that she does not remember stating she earned $10.00 per hour at Century on Time, as she earned $520.00 per week working there, which is $13.00 per hour. Ms. Dada stated that she was not scheduled to work weekends at Century On Time. As previously stated at the hearing, she only worked weekends on two occasions to make up 40 hours for the week she travelled to Nigeria.

The paystubs provided by Ms. Dada from Century On Time include one-week earning periods for the following dates: February 21, 2011 - February 27, 2011; April 4, 2011 - April 10, 2011; April 18, 2011 - April 24, 2011; May 2, 2011 - May 8, 2011; and May 9 - May 15, 2011. Ms. Scott questioned why the dates of February 21, 2011 and April 22, 2011 (both statutory holidays) were noted within the pay periods reflected on the paystubs provided by Ms. Dada. Ms. Scott further questioned why there were no statutory pay amounts noted on the paystubs for the periods which included the statutory holidays. Ms. Dada said Century On Time was an agency and she was not a full-time employee, and she was therefore not paid statutory holidays. Ms. Dada further stated that she needed to work, and accepted the dates regardless of whether they were holidays or not. The owner/manager of Century On Time at the time was Peter Addai. Ms. Dada stated she has been unable to locate him as he no longer works in the office where Century On Time is located.

Ms. Scott put to Ms. Dada that in her Statement to the Insurer (July 6, 2011)¹² she had said she was paid every two weeks, and that the copies of the paystubs provided by Ms. Dada noted weekly pay periods. Ms. Dada testified that she was issued a paycheque every two weeks, but was issued paystubs which reflected a weekly period.

A copy of an e-ticket¹³ was produced at the hearing. Ms. Scott put to Ms. Dada the e-ticket noted Ms. Dada departed New York City on April 27, 2011 and arrived in Lagos, Nigeria on April 28, 2011, and noted that Ms. Dada left Lagos on May 1, 2011 and entered New York on May 2, 2011. Ms. Scott stated that there were no other details confirming the airfare and payment, although it had been requested by the Insurer. Ms. Dada’s Canadian passport showed a stamp that she entered New York City on May 2, 2011. Ms. Dada stated she had arrived in New York City in the morning of May 2, 2011 and that she had slept on the flight from Nigeria and the 7-hour bus ride from New York City to Toronto. Ms. Dada stated she returned to work on May 2, 2011 and worked an 8-hour overnight shift that night.

Ms. Scott showed Ms. Dada a copy of the page of Ms. Dada’s Nigerian passport that showed a date stamp of April 28, 2011.¹⁴ The date stamp was clear on this black-and-white photocopy. Ms. Scott put to Ms. Dada that the date stamp appeared darker and the font was slightly different on the photocopy when compared with Ms. Dada’s original Nigerian passport, produced at the hearing. Ms. Scott then asked Ms. Dada why the photocopy of the Nigerian passport¹⁵ provided to the Insurer had an issue date of October 4, 2014, while the original Nigerian passport showed a date of issue of October 9, 2014.¹⁶ Ms. Dada stated that her original Nigerian passport expired in 2014 and was in Nigeria. Ms. Dada further stated the photocopies provided to the Insurer were sent to her by a friend in Nigeria who had her Nigerian passport. Ms. Dada could not explain why the stamp on the photocopy appeared darker than the stamp on her original passport, nor if the photocopies had been altered prior to them being sent to her.

Ms. Scott referenced a copy of the OHIP summary,¹⁷ and put to Ms. Dada that there was a gap in Ms. Dada’s OHIP summary from October 12, 2010 to May 6, 2011. Ms. Scott stated that in the years of 2008 and 2009, Ms. Dada visited a doctor on a monthly basis. Ms. Scott asked Ms. Dada if she agreed there was a gap in the OHIP summary from October 12, 2010 to May 6, 2011. Ms. Dada confirmed there was a gap in the OHIP summary but provided no further details and stated she did not know why there was a gap.

Ms. Scott questioned Ms. Dada regarding her visit to Dr. MacDonald on May 6, 2011. Ms. Dada was asked why his clinical note and record¹⁸ noted she was in Africa for 6 weeks and had some jet lag. Ms. Dada responded that she was in Africa for 6 days, not 6 weeks, and that she did not state to Dr. MacDonald she suffered from jet lag.

The ambulance call report for Ms. Dada, dated May 14, 2011,¹⁹ noted complaints of neck and back pain. Ms. Dada stated she attended Malton Physiotherapy for treatment following the accident. The clinical notes and records from Malton Physiotherapy²⁰ noted Ms. Dada received treatment up until June 2012. Ms. Dada stated she stopped treatment then as the Insurer stopped paying for the treatment. Ms. Dada confirmed she has not received any psychological treatment since the accident.

An Orthopedic Insurer Examination Assessment conducted by Dr. Sekyi-Otu on September 20, 2012 noted on page 4²¹ that Ms. Dada was a cleaner for a construction company for approximately one year prior to the accident. At the hearing Ms. Dada stated this was not correct; she stated she only performed this work for 12 weeks prior to the accident.

In the psychological Insurer Examination Assessment on September 27, 2012, Dr. McCutcheon noted on page 14²² that Ms. Dada had worked as a cleaner for Century On Time since January 2011 and was working there at the time of the accident. At the hearing, Ms. Dada stated she started working for Century on Time in February, not January of 2011.

Ms. Scott put to Ms. Dada that Wawanesa had sent a request letter dated August 1, 2013²³ asking Ms. Dada to provide a copy of her T4 for 2011 and a copy of her Canada Revenue Agency Assessment from November 2011. Income tax return information from Canada Revenue for 2011 and 2012 was provided by Ms. Dada’s former counsel. It was explained by prior counsel, through a correspondence letter dated January 6, 2014 enclosing the 2011 and 2012 tax return information:

Please note, our client advises us that for the year 2012, she reported her Income Replacement Benefit payments as business income. Her IRB was her only “income” for that year. As for 2011, our client advises us that she likewise reported her IRB payments as business income, along with her regular income from before her MVA of May 14, 2011.²⁴

Ms. Scott further put to Ms. Dada there was no reference to any T4 income on the 2011 tax return information initially provided. Lastly Ms. Scott put to Ms. Dada that when the gross amount from Century On Time was added to the IRB amount paid by Wawanesa for 2011, the amounts were less than what was noted for total gross business income on the 2011 tax return information. Ms. Dada stated in response that the gross business income earned was prior to the accident and that no business income was earned from the car business for the four weeks prior to the accident.

Ms. Scott referenced a T4 which Ms. Dada later provided to Wawanesa²⁵ in which the deductions for CPP, EI, and income tax did not match the same amounts noted on Ms. Dada’s final paystub from Century On Time.²⁶ Ms. Scott put to Ms. Dada that the amounts were close on the two documents but did not match up exactly as they should. Ms. Dada stated the T4 and the paystub were provided to her by Century On Time and she does not know why they did not match. Ms. Scott put to Ms. Dada that at her EUO on November 17, 2016 when she was asked if she had worked anywhere other than Turn Key in 2015, or made any money besides what she earned at Turn Key since the accident in 2011, Ms. Dada stated no.²⁷ Ms. Dada testified at the hearing that she had filed her tax return for 2014 in 2015. Ms. Dada further stated it would not make sense for to lie about her income at the EUO in 2016.

Testimony of Ms. Kathleen Phelan - Insurance Adjuster for Wawanesa

Ms. Kathleen Phelan (“Ms. Phelan”), an adjuster with Wawanesa, testified that Wawanesa issued a letter dated September 13, 2011²⁸ advising Ms. Dada that she qualified to receive an IRB. At that point, Wawanesa had not received the statement from the employer, Peter Addai of Century On Time. Ms. Phelan stated that Wawanesa hired an independent adjusting firm, Granite Claims Solutions (“Granite”), to obtain the statement from the employer. Several attempts were made by telephone, and the independent adjuster visited the business address. No one answered the telephone or was present at the business address when the adjuster showed up. This was reported to Wawanesa in a letter from Granite dated September 29, 2011.²⁹ The letter noted there was an office with the name Century On Time and a phone number on the door. IRBs continued to be paid to Ms. Dada.

Wawanesa hired H & A Forensic Accounting Inc. to assist with Ms. Dada’s IRB calculation. It issued a letter dated October 7, 2015³⁰ which requested further financial documentation from Ms. Dada.

Ms. Phelan submitted that Ms. Dada provided no further paystubs, bank records, copies of cheques, employment records, or business records as it related to any self-employment activity. Subsequently, Ms. Dada was placed in non-compliance as per section 33(6) of the Schedule and was advised of this by letter from Wawanesa dated January 2, 2014.³¹

Cross-Examination of Ms. Phelan

Ms. Phelan confirmed that the statement provided by Ms. Dada to Wawanesa on September 6, 2011³² was that Ms. Dada was working at Century On Time prior to the accident, and the information in the statement was consistent with the OCF-2 dated May 26, 2011 (received by Wawanesa July 12, 2011).³³ Ms. Phelan stated that the IRB was calculated based upon the information reported on the OCF-2.

A letter from prior legal counsel dated June 4, 2015³⁴ enclosed 2011 and 2012 Notices of Reassessment (dated May 26, 2015) for Ms. Dada. The total income noted for 2011 was

$22,310.00 and $11,398.00 for 2012. Mr. Gorrin put to Ms. Phelan that upon receipt of the 2011 and 2012 Notices of Reassessment, Wawanesa would not be able to make a determination of business income, which made up the difference unaccounted for by earnings from Century On Time and IRBs paid by Wawanesa. Mr. Gorrin put to Ms. Phelan that the letter from

H & A Forensic Accounting dated October 7, 2015 was the first letter Wawanesa issued to Ms. Dada which requested further financial documentation and business statement information. Ms. Phelan agreed on both points. Ms. Phelan further stated Ms. Dada had not provided any information which confirmed the amounts of Ms. Dada’s business activity. In addition to this, Ms. Phelan stated the Insurer was missing financial information as requested through s. 33 of the Schedule. It was stated by Ms. Phelan, as this information had not been provided, the Insurer could not make a conclusion that there was a material misrepresentation.

Testimony of Mr. Michael Lake - Investigator with Insurance Bureau of Canada

Michael Lake (“Mr. Lake”) is an Investigator with the Insurance Bureau of Canada (“IBC”). He is responsible for the intake of information regarding concerns within the insurance industry involving claims files.

Mr. Lake testified that in July 2011, IBC was contacted by a member insurer regarding concerns about Century On Time. Mr. Lake stated that other member insurers had reported this employer had been resistant in providing information requested by member insurers. Mr. Lake went through the copies of paystubs provided by this employer for multiple claimants, which had been redacted to maintain privacy. He noted inconsistencies within the format and design of the paystubs. The descriptors, date format, addresses for the business, and appearance of company name varied among the copies of the 2011 paystubs. Pay periods for some paystubs were weekly, some were bi-weekly. The formatting and appearance of these paystubs also differed from Ms. Dada’s 2011 paystub copies provided to the Insurer.³⁵ Mr. Lake stated the inconsistencies with all these paystubs were unusual and inconsistent with normal payroll/accounting practices.

Closing Submissions of the Applicant

IRB Repayment in the amount $28,078.96

Ms. Phelan stated that Wawanesa relied on the information provided within the OCF-2. Ms. Phelan stated she believed the information contained in Ms. Dada’s statement later provided to Wawanesa accurately represented the information previously provided within the OCF-2. Ms. Phelan further stated this information was used by Wawanesa to determine Ms. Dada’s entitlement and quantum of the IRB. Further, Mr. Gorrin submitted that the information provided on the OCF-2 was confirmed by the paystubs provided by Ms. Dada.

The IRBs Ms. Dada had been receiving were terminated by Wawanesa on November 11, 2012 via a letter dated October 25, 2012,³⁶ pursuant to section 37(2)(c) of the Schedule.

Nearly two years after Wawanesa approved the IRBs for Ms. Dada, Wawanesa sent a letter dated August 1, 2013 to Ms. Dada requesting Ms. Dada to provide Wawanesa with a copy of her T4 for 2011 and her Canada Revenue Assessment from November 2011.

Mr. Gorrin submitted that Ms. Dada’s former counsel provided a letter dated January 6, 2014 to Wawanesa, which included Ms. Dada’s tax returns for 2011 and 2012. The letter also advised that “for 2011, the Applicant reported her IRB payments as business income, along with her regular income from before her MVA of May 14, 2011” [Emphasis Mr. Gorrin’s]. Mr. Gorrin submitted that this 2011 tax return information stated gross business income in the amount of $21,310.00. Mr. Gorrin submitted that it was this document which caused Wawanesa to conclude Ms. Dada made a wilful misrepresentation.

Wawanesa first notified Ms. Dada through a letter dated November 19, 2014 that the repayment of IRBs was being sought. Mr. Gorrin submitted: “Since the notice was not provided within twelve (12) months of the after [sic] the “payment of the amount that is to be repaid”, section 52(3) of the Schedule states that the Applicant ceases to be liable “unless it was originally paid to the person as a result of wilful misrepresentation or fraud” [Emphasis Mr. Gorrin’s].

Mr. Gorrin further submitted:

As such, section 52(3) ought to be interpreted to mean that the original information provided to the Insurer to determine IRB eligibility is the relevant information to consider, in reaching a determination as to whether there was wilful misrepresentation or fraud, rather than information provided subsequent to the approval of the IRB.

Mr. Gorrin submitted that Ms. Phelan testified that Ms. Dada’s income statement for 2011 should be $6,240.00 + $10,192.00 (IRB), for a total gross income of $16,432.00. This was different from the amounts reported on the 2011 tax return information provided by prior counsel by $4,878.00. Mr. Gorrin submitted this led Wawanesa to conclude there was a wilful misrepresentation regarding Ms. Dada’s pre-accident employment history.

Ms. Dada testified that she commenced her employment with Century On Time on February 21, 2011, and that prior to the accident she operated her own business of importing/exporting vehicles to Nigeria. Ms. Dada testified that it was not uncommon for her to receive payment for the sale of vehicles until the following calendar year. Mr. Gorrin submitted that this would mean that Ms. Dada would have had almost two months to receive money from her business in the amount of $4,878.00. In the EUO conducted November 17, 2016, Ms. Dada stated that in 2010 she was operating her own business which involved buying cars in Canada and exporting them to Nigeria.³⁷

Wawanesa received a letter dated June 4, 2015 from Ms. Dada’s prior counsel in response to the repayment request. It included the Notices of Assessment for 2011 and 2012 for Ms. Dada. Ms. Phelan admitted that the information in the documents would not have led to a conclusion that there was a material misrepresentation.

Mr. Gorrin noted that the letter dated October 7, 2015 from H & A Forensic Accounting Inc. was the first letter issued by Wawanesa which requested Ms. Dada’s business income. Mr. Gorrin submitted that without this information, Wawanesa would not have been able to determine the business income which made up for the amounts unaccounted for by IRBs and earnings from Century On Time. Ms. Phelan agreed that Wawanesa did not issue a request letter for business income from Ms. Dada before October 7, 2015. That was almost one year after Wawanesa issued its request for repayment. Ms. Phelan stated under cross-examination that without further business income information from Ms. Dada, it would not be possible to make a conclusive determination that there was a misrepresentation.

Mr. Gorrin submitted that Wawanesa could only allege that as a result of Ms. Dada not providing information, this could have led to a “conclusive determination if a misrepresentation had been made, and this information was not even requested until long after the decision was made to seek repayment.”

Entitlement to IRBs from November 11, 2012 to May 14, 2013

A December 1, 2014 letter from Ms. Dada’s family doctor, Dr. Ajisafe, opined that Ms. Dada reached maximum medical improvement in August 2012. He noted her back pain had increased, and referred her to another round of physiotherapy and to see a pain specialist for injections.³⁸

Ms. Dada submitted that she had been unable to return to work until 2015, when she performed work on a contract basis for approximately two months for an agency called Turn Key. She was substantially unable to continue at this job due to ongoing impairments from the accident of May 14, 2011.³⁹

A Disability Certificate (OCF-3) dated February 17, 2017 was submitted to Wawanesa, and noted Ms. Dada was substantially unable to perform her essential tasks of employment within 104 weeks of the accident.⁴⁰

Mr. Gorrin submitted that the clinical notes and records supported that Ms. Dada regularly saw her family doctor and received injections from a pain clinic from 2012-2013.

Mr. Gorrin concluded that Ms. Dada’s IRBs should not have been terminated on November 11, 2012, and Wawanesa should have continued to pay IRBs to Ms. Dada to the maximum period of eligibility, in the amount of $9,413.04.

Closing Submissions of Insurer

IRB Repayment in the amount $28,078.96

Ms. Scott submitted there were several inconsistencies and an absence of other supporting documentation regarding Ms. Dada’s alleged employment with Century On Time. These inconsistencies included the date when Ms. Dada started working for Century On Time, the number of hours/days worked in a week and the hourly wage Ms. Dada earned. Ms. Scott stated there were credibility issues regarding information provided throughout the course of the claim and during Ms. Dada’s testimony at the hearing. Ms. Scott concluded that Ms. Dada did not work for Century On Time for the period which she claimed, materially misrepresented her pre-accident employment information, and the documents she provided in support of her IRB claim were fraudulent.

Ms. Scott stated the paystubs provided by Ms. Dada showing she worked 12 weeks prior to the accident could not be relied upon. There were no copies of pay cheques, bank records, employment records, or business records produced by Ms. Dada to confirm the income allegedly earned at Century On Time.

Ms. Scott submitted that there were inconsistencies with Ms. Dada’s reported travel dates to Nigeria while she was allegedly employed with Century On Time. Inconsistencies arose regarding this at the EUO in November 2016. Ms. Dada stated at the EUO that her last trip to Africa was in 2007. Ms. Dada then said at the EUO that she had been to Africa for 3 weeks in 2011, possibly in February. There was the discrepancy in the note from Dr. MacDonald on May 6, 2011 that Ms. Dada was in Nigeria for 6 weeks. There were inconsistencies with the photocopies of Ms. Dada’s Nigerian passport compared to her original Nigerian passport. Ms. Dada’s evidence was that she did not miss any time from work when she travelled to Nigeria from April 28, 2011 to May 2, 2011, which was inconsistent with the evidence Ms. Dada provided at the EUO, where she stated she did not work overtime or weekends prior to the accident.

Ms. Dada’s prior legal counsel advised that Ms. Dada had reported her IRB income and her regular income on her tax returns in error. However, there was no T4 income referenced in the 2011 tax return information originally provided by prior counsel. There was no other pre-accident income, other than Century On Time referenced by Ms. Dada’s prior counsel. Ms. Scott submitted “the insured’s intentional silence by omission regarding other employment is a wilful misrepresentation.” Once Wawanesa confirmed Ms. Dada had reported gross business income from both before and after the accident, Wawanesa hired H & A Forensic Accounting to determine the effects on the Applicant’s IRB, and additional documentation was requested from Ms. Dada.⁴¹

Ms. Scott further submitted that Ms. Dada testified that she operated a car import/export business prior to the accident; however, this was never disclosed on her Application for Accident Benefits (OCF-1)⁴², her OCF-2, and her statement to Wawanesa, or at any other time prior to the EUO. In the EUO, Ms. Dada testified that, other than the work she did for two months for an agency called Turn Key, she has not earned any other income post-accident. Ms. Dada further testified at the EUO that she had not returned to the business of buying and exporting vehicles for sale since the accident.⁴³

In an Income Tax and Benefit Return (T1 General 2011) for Ms. Dada dated November 29, 2016,⁴⁴ gross business income for 2011 was reported in the amount of $83,650.00. Ms. Dada’s testimony at the hearing was that the business income she generated in 2011 was prior to the work which she commenced for Century On Time in February 2011. Ms. Scott responded that this business income for 2011 exceeded all of the business income ($82,101.00) for 2010, as evidenced through Ms. Dada’s T1 General 2010, both dated November 29, 2016.⁴⁵

Ms. Scott further submitted that Ms. Dada misrepresented her ability to work post-accident and continued to earn self-employment income following the accident, which was never reported to the Insurer during the time period IRBs were being paid. Further documentation regarding the Applicant’s self-employment income was requested but not provided. This led to Wawanesa’s request for the IRB repayment based on wilful misrepresentation and fraud, per s. 52(1)(a) of the Schedule.

Wawanesa submitted that the totality of Ms. Dada’s evidence was highly suspect due the glaring inconsistencies between her documentary evidence, her EUO testimony, and her testimony at arbitration. Wawanesa relies on Aviva and S.A.,⁴⁶ which addressed a claim for repayment of an IRB. The insured (Respondent) originally qualified and was paid an IRB based upon information reported in the original OCF-1. The Respondent had checked off a box indicating he had been employed for 26 of the 52 weeks preceding the accident, and indicated and that he had been approved to receive Employment Insurance (“EI”) benefits. But it was later found that the Respondent was not employed for 26 out of the 52 weeks prior to the accident and had not been approved to receive EI. Therefore, as a result of this misrepresentation, the Respondent was not entitled to receive IRBs and was ordered to repay the amount received for the IRBs to Aviva.

Wawanesa also relied on Michalowski and St. Paul Fire & Marine Insurance Company,⁴⁷ which addressed the test for wilful misrepresentation, and Rovella and State Farm Mutual Automobile Insurance Company,⁴⁸ which stated the burden of proof is on an Applicant to prove the quantum of their IRB, but the burden of proof is on an Insurer that (on a balance of probabilities) it is entitled to a repayment of IRBs based upon wilful misrepresentation.

No Entitlement to IRBs from November 11, 2012 to May 14, 2013

Ms. Scott submitted that the only medical evidence Ms. Dada provided to support her claim for IRBs in this arbitration are one-page reports from Dr. Ajisafe dated December 1, 2014 and April 25, 2017. Both of these reports are outside of the 104-week period, and neither addressed Ms. Dada’s ability to return to work. The last time Ms. Dada attended physiotherapy treatment was in June 2012. There were no treatment plans in dispute. Ms. Dada submitted she received pain injections, but no further evidence was provided at arbitration supporting this. The most recent OCF-3 dated February 17, 2017 was outside of the 104 weeks since the accident.

A multi-disciplinary Insurer Examination assessment was conducted on September 20, 27, and October 5, 2012 by Dr. Sekyi-Otu (Orthopedic Surgeon), Dr. McCutcheon (Psychologist) and Dr. Becker (Kinesiologist) to assess ongoing entitlement of IRBs for Ms. Dada. The conclusions reached by these assessors were that Ms. Dada did not suffer a substantial inability to engage in the essential tasks of her pre-accident employment as a result of the May 14, 2011 MVA.⁴⁹ Wawanesa issued a letter dated October 25, 2012⁵⁰ which notified Ms. Dada her IRBs would be stopped effective November 11, 2012, based on ss. 37 & 54 of the Schedule.

ANALYSIS AND DECISION:

I find that Ms. Dada is not liable to repay IRBs to Wawanesa in the amount of $28,078.96.

Section 52(1)(a) of the Schedule states:

Repayment of IRB to Insurer

(1) Subject to subsection (3), a person is liable to repay to the insurer,

(a) any benefit described in 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 wilful misrepresentation or fraud;

Wawanesa has claimed a repayment of IRBs based upon Ms. Dada committing wilful misrepresentation and fraud regarding income amounts she earned prior to and following the May 14, 2011 accident. The onus is therefore on Wawanesa to prove on a balance of probabilities it is entitled to a repayment.

Ms. Dada qualified for IRBs in the amount of $364.00 per week based upon information provided to Wawanesa in the OCF-2, and further endorsed by Ms. Dada’s statement to Wawanesa. The paystubs Ms. Dada provided to Wawanesa corroborated what was reported by the employer on the OCF-2. Wawanesa accepted this information and paid Ms. Dada IRBs.

Wawanesa had in its possession the OCF-2 in July 2011 and Ms. Dada’s statement in September 2011. The OCF-2 noted Ms. Dada earned $13.00 per hour; the statement given by Ms. Dada noted she earned $14.00 or $15.00 per hour. Wawanesa sent a letter dated September 13, 2011⁵¹ to Ms. Dada confirming entitlement to receive IRBs. At that time, Wawanesa did not raise the issue regarding the discrepancy in the hourly rate between the OCF-2 and what was noted in Ms. Dada’s statement. Ms. Dada was paid IRBs commencing September 18, 2011.

Wawanesa hired Granite to investigate the information provided on the OCF-2 by Century On Time. Granite was unable to make contact with the employer and as a result made no finding.

Granite then closed its investigation.⁵² Therefore, based upon the evidence provided at the hearing, I am unable to conclude that the information provided in the OCF-2 and the paystubs from Century On Time are unreliable.

The first time Wawanesa asked Ms. Dada to provide a copy of her 2011 T4 and her Canada Revenue Agency Assessment from 2011 was in August 2013, as evidenced by an August 1, 2013 letter from Wawanesa⁵³ and confirmed by Ms. Phelan’s testimony. I find this request came 9 months following the stoppage of Ms. Dada’s IRBs, and it is unclear why Wawanesa waited so long to request this information.

Wawanesa submitted the paystubs submitted by Century On Time reflected weekly pay periods but Ms. Dada testified she received weekly paystubs but was paid every two weeks. Wawanesa submitted the paystubs included dates which were statutory holidays, but no statutory holiday amounts were noted on those paystubs. Ms. Dada testified she needed to work, and accepted the dates, regardless of whether they were holidays or not. I accept Ms. Dada’s explanation as reasonable on both points. Mr. Peter Addai of Century On Time was not produced as a witness to testify regarding these paystubs.

Wawanesa relied on evidence provided by Mr. Lake, an IBC investigator who stated that the 2011 paystubs issued by Century On Time for Ms. Dada and other accident benefit claimants looked unusual and appeared inconsistent. However, these paystubs have not been authenticated and the author(s) of all of these 2011 paystubs was unconfirmed. I do not afford any weight to the testimony provided by Mr. Lake regarding the paystubs. I have reviewed Ms. Dada’s paystubs and they appear to be genuine regarding their appearance and format.

Wawanesa also relied on inconsistencies regarding Ms. Dada’s travel to Nigeria in 2011. Ms. Dada travelled to Nigeria from April 27 - May 2, 2011. This was supported by a photocopy of an e-ticket. Payment is typically provided prior to the issuance of an e-ticket. Therefore, I do not find issue with no fare and payment details being provided by Ms. Dada. The e-ticket was also dated more than 6 years ago, and it is reasonable to assume that Ms. Dada would not have retained the fare and payment information. I also note that the stamps contained within the original Canadian and Nigerian Passports coincide with the e-ticket. I find that the Nigerian passport and the copy of the e-ticket produced at the hearing appeared genuine. Ms. Dada testified that she did not create the photocopies of the Nigerian passport, they were sent to her by a friend in Nigeria and she could not confirm if or why they were altered from the original passport which was later produced and provided as evidence at the hearing.

The entry by Dr. MacDonald of May 6, 2011 noted Ms. Dada was in Africa for 6 weeks. But even if Dr. MacDonald could be produced as a witness, it may be unlikely that he could clarify what he noted 6 years ago, and he was not Ms. Dada’s regular doctor. The evidence provided by Ms. Dada at the EUO on November 17, 2016 was that she was in Africa for three weeks, possibly in February. Ms. Dada testified at the hearing that she was only in Africa for 6 days in 2011, and supported this with the copy of her e-ticket and her original Canadian and Nigerian passports. While I recognize there are inconsistencies within the passport documentation presented at the hearing, I find that the Applicant’s testimony matches what was reflected in her original Nigerian passport, and is further supported by her Canadian passport and the copy of her e-ticket.

The onus lies with Wawanesa to prove its claim that it is entitled to a repayment of IRBs. I cannot find that Wawanesa has proven a material misrepresentation or fraud with regard to the IRBs paid to Ms. Dada up to November 11, 2012. Ms. Dada provided reasonable explanations at the hearing regarding the inconsistencies raised by Wawanesa, and I find her testimony credible.

IRB Entitlement from November 11, 2012 to May 14, 2013

I do not find Ms. Dada is entitled to receive IRBs from November 11, 2012 to May 14, 2013.

Wawanesa conducted three IEs which included an Orthopedic Assessment (September 20, 2012), a Psychological Assessment (September 27, 2012), and an assessment by a Kinesiologist (October 5, 2012.)⁵⁴ It was the conclusion of these assessors that Ms. Dada did not have a substantial inability to engage in the essential tasks of her pre-accident employment as a result of the May 14, 2011 MVA.

Ms. Dada relied on a one-page medical report from Dr. Ajisafe dated December 1, 2014⁵⁵ which noted ongoing pain in her lower back and right thigh, and referrals for additional physiotherapy and a pain clinic for injections.

Mr. Gorrin noted that there was evidence within Dr. Ajisafe’s clinical notes that Ms. Dada received injections for pain in 2012-2013. I did not find evidence of this contained within the clinical notes and records admitted, nor was there any evidence provided at the hearing to support that Ms. Dada received injections for pain. Further, even if Ms. Dada were to have received pain injections, it is uncertain if this would prove her entitlement to IRBs.

Ms. Dada further relied on an OCF-3 dated February 17, 2017⁵⁶ which noted Ms. Dada was substantially unable to perform her essential tasks of employment within 104 weeks of the accident.

I agree with Wawanesa that the report of Dr. Ajisafe (December 1, 2014) and OCF-3 (February 17, 2017) are dated beyond the timeframe in which IRBs are being claimed for this arbitration. In addition, Dr. Ajisafe’s report made no reference regarding an inability to return to work. The last time Ms. Dada received physiotherapy was in June 2012, and there are no treatment plans in dispute for this arbitration which indicates that further physiotherapy treatment has not been sought from Wawanesa by Ms. Dada.

Therefore, I do not find Ms. Dada has proven entitlement to receive IRBs beyond the stoppage date of November 11, 2012 within 104 weeks of the MVA, specifically from November 11, 2012 - May 14, 2013.

Interest

No interest is payable as there are no benefits payable.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this

matter, the parties may request an appointment with me within 30 days of the date of the Order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

August 28, 2017

Kimberly Parish Arbitrator

Date