Dispute Resolution Services

Services de règlement des différends

Neutral Citation: 2019 ONFSCDRS 43

FSCO A12-007408

BETWEEN:

ALI MADINEI

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

Before: Anne Sone

Heard: Final written submissions were received on October 9, 2019.

Appearances: Mr. Madinei represented himself

Paul Omeziri for TD General Insurance Company

Overview and Issues:

The Applicant, Ali Madinei, alleged that he was injured in a motor vehicle accident on July 23, 2010. He applied for and received statutory accident benefits from TD General Insurance Company (“TD General”), claimed under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Madinei applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In a decision dated November 27, 2017, Arbitrator Winer dismissed Mr. Madinei’s claim for benefits, and also dismissed a claim by TD General for repayment of the benefits it had previously paid to Mr. Madinei. This decision was appealed.

In his appeal decision dated June 26, 2018, Director’s Delegate Evans confirmed that the collision in this case was staged. He also found that even though the collision was staged, it was still an accident under the broader definition of “accident” under the Schedule.

Director’s Delegate Evans agreed with numerous cases at the Commission where, if the fraud or misrepresentation related to the fundamental facts of the accident itself, then insureds are required to repay all benefits that were paid to them because they received the accident benefits as a result of wilful misrepresentation or fraud.

With respect to the issue of repayment, Director’s Delegate Evans stated that he did not know which statutory accident benefits were paid to the insured in this case. Accordingly, the matter was returned to arbitration to determine which benefits were paid to the insured, and entitling TD General to repayment of these benefits.

The issue in this hearing is:

What is the amount of the repayment TD General Insurance Company is entitled to receive from Mr. Madinei in connection with the benefits Mr. Madinei received from TD General Insurance Company?

Result:

Mr. Madinei is ordered to repay $3,478.19 to TD General Insurance Company in connection with the statutory accident benefits he received from TD General Insurance Company.

EVIDENCE AND ANALYSIS:

Mr. Madinei was provided with opportunities to make written and oral submissions. After he requested it, he was also provided with a Farsi interpreter.

His main submission was that he had received a letter dated October 18, 2017, indicating that TD General had withdrawn their Application. However, this letter pertained to an Application before the License Appeal Tribunal, and did not apply to the Commission.

Mr. Madinei also submitted that TD General’s payments were not made to him directly. Rather they were made to chiropractors and other specialists whose names he could not remember. He also stated that he did not apply for income replacement or any other benefits. In other words, no payment came directly to him.

In an affidavit dated October 3, 2019, TD General contradicted these submissions and provided proof that Mr. Madinei had claimed and received various amounts for statutory accident benefits in connection with an accident that was found to have been staged.

Here is a list of the cheques issued directly to Mr. Madinei at his home address. The list includes the amount paid to Mr. Madinei, the cheque number, the type of benefit paid and the date it was issued.

AMOUNT

CHEQUE

BENEFIT

DATE ISSUED

$1,600.00

3548256

Housekeeping

February 25, 2011

$1,165.27

3513759

Housekeeping and Prescription Medication

November 23, 2010

$ 356.46

3495118

Attendant Care

October 15, 2019

$ 356.46

3478777

Attendant Care

September 15, 2010

TD General also issued a cheque to Mr. Madinei for $4,864.65 in connection with vehicle indemnity.

Mr. Madinei cashed all of these cheques.

As vehicle indemnity is not a statutory accident benefit, I do not have authority to order repayment for this item.

The amounts paid directly to Mr. Madinei in connection with his claimed and received statutory accident benefits for housekeeping and home maintenance, prescription medication and attendant care total $3,478.19.

Accordingly, I find that Mr. Madinei is liable to repay TD General the amount of $3,478.19 for statutory accident benefits that TD General paid to him in connection with a staged accident.

November 28, 2019

Anne Sone Arbitrator

Date