Citation: R.H. v. Wawanesa Insurance, 2022 ONLAT 18-011887/AABS

Licence Appeal Tribunal File Number: 18-011887/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

R.H.

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Zeitoon Vaezzadeh, Counsel

For the Respondent:

Kahtleen O’Hara, Counsel

Interpreter

Nesreen Meulud, (Kurdish)

Court Reporter(s):

Guido Riccioni

Queenie Tsui

HEARD by Videoconference:

December 9, 10, 11, 15, 2020, January 12, 13, and 14, 2021

BACKGROUND

1The applicant was allegedly injured in an automobile accident on August 23, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The respondent denied that the accident occurred and states that the applicant wilfully misrepresented the details of the accident.

2The parties agreed that the issues in dispute at this preliminary hearing are the following:

a. Is the incident of August 23, 2016 an “accident” as defined in section 3 of the Schedule?

b. Is the respondent entitled to terminate the payment of benefits on behalf of the applicant because the applicant willful misrepresented material facts with respect to his application for benefits pursuant to section 53 of the Schedule?

RESULT

3For the reasons noted below the applicant has not met his onus to show that the incident of August 23, 2016 is an “accident” as defined under the Schedule. Further the respondent has met its onus to show that the applicant wilfully misrepresented material facts with respect to his application for benefits.

ANALYSIS

Background and Parties Position

4According to the applicant (aged 33) on August 23, 2016 he was the front seat passenger in a vehicle driven by Ms. B., aged 27. Also, in the vehicle at the material time, was a back-seat passenger, Mr. R, aged 42, who was seated behind the driver. At some point during a drive Ms. B was not able to apply the brakes and/or was unable to bring the vehicle to a stop and thus she went off the road and struck a tree. As a result of this the applicant submits that he was involved in an accident and sustained impairments.

5The respondent argues the incident as described by the applicant and the others who were allegedly in the vehicle is not credible and that the incident was a staged accident in that it was preplanned and/or was for the purposes of obtaining monies from the insurer.

6The parties agree that the onus is on the applicant to prove, on a balance of probabilities, that the incident of August 23, 2016 is an “accident” as defined in the Schedule.

7The parties agree that the onus is on the respondent to show willful misrepresentation of the material facts by the applicant.

Is this incident an accident?

8Accident is defined under the Schedule. The jurisprudence has established a two-part test that includes purpose and causation. The Tribunal has on numerous occasions held that a staged accident is not an “accident” under the Schedule.

9At the heart of this matter is whether the applicant has shown on a balance of probabilities that the incident occurred in the manner he says he did in that the incident arises out of the ordinary use and well-known operation of an automobile (the purpose test) and did this operation cause the impairment (the causation test).

10For the reasons noted below I find that the applicant has not shown on a balance of probabilities that the incident meets the purpose and causation test. Most fatal to the applicant’s case is that inconsistencies between the passenger’s accounts, the driver’s account and the applicant’s account of what transpired on the day of the incident, how they came to the scene of the incident and what occurred thereafter are so copious that it calls into question the totality of the evidence of how the incident occurred. Thus, I cannot accept the applicant’s account of the incident and therefore it cannot be said that the applicant has met his onus in proving on a balance of probabilities that this incident is an accident as defined under the Schedule.

11None of the three individuals allegedly involved in this incident have a consistent story about how they came to be in the vehicle that day, nor do they have a consistent story about the events leading up to the day of the incident and what transpired just prior to the vehicle and tree making contact or what transpired following. The applicant provided oral testimony, the driver, though summoned by the applicant, did not attend the hearing and the rear seat passenger, Mr. R provided testimony that was inconsistent with his earlier statements.

12In addition to the inconsistent depictions of the day and incident by the three involved in the incident, there is also evidence from an expert witness as well as medical practitioners in support of other inconsistencies with respect to the state of the car, the mechanisms of the incident and the injuries purportedly sustained. By way of background and to provide context to the statements below, at the material time the driver Ms. B lived in London. The applicant and the passenger Mr. R lived in Hamilton. The applicant and Ms. B’s sister work at the same commercial bakery located on the Hamilton “mountain”. The three involved agree that Ms. B bought a new vehicle (a CRV) that needed repairs in order to pass the emissions test to obtain the proper “sticker” to affix to the vehicle’s license plate. After the new sticker was obtained the three decide to go drive around and go from Hamilton to Mississauga and then back to Hamilton. The end destination when returning to Hamilton is the applicant’s workplace. On the return to Hamilton Ms. B is the driver, the applicant is the front seat passenger and Mr. R is the back-seat passenger behind the driver. In the area close the applicant’s workplace there is a potential issue with the brakes on the vehicle and/or Ms. B gets nervous due to a truck(s) and/or a combination of both just prior to the incident. As a result, the three occupants submit, that the car goes off the road and hits a tree.

13Despite the above there are a glaring number of inconsistencies in the telling of how the incident occurred and what occurred following the incident. Specifically, the inconsistencies that there are differing accounts with respect to the following:

• Servicing of the vehicle, who recommended the mechanic shop, and who paid for the servicing
• The plan to get together on the day of the incident i.e., who calls whom, whose idea it is
• The time the three meet on the day of the incident, time they arrive in Mississauga and time arrive back in Hamilton
• Time of the incident and what occurs following the incident including the injuries to the applicant.

14Following the incident Ms. B and Mr. R provided statements to the respondent in which the inconsistencies are seen.

15Specifically, on September 20, 2016 Ms. B provided the following in her statement:

• Ms. B and her father purchased brake parts from Canadian Tire/Parts Source and the next morning on either August 12 or 13, 2016 her father put the front brakes on the vehicle¹ that was involved in the incident.
• Ms. B states that between August 12, 2016 and the incident she needed to get the vehicle e-tested as she was provided with a temporary “sticker”.²
• Ms. B called the applicant about this e-test.³
• The applicant introduced Ms. B to Mr. R (the backseat passenger) and Mr. R knew companies that do inexpensive e-testing.⁴
• Ms. B, Mr. R. and the applicant took the vehicle to a mechanic shop in Hamilton for the e-testing.⁵
• The repairs were about $800.00, and the applicant paid a bit.⁶
• The repairs took place the day before the incident. As well the sticker and the ministry paperwork however were obtained the day before on August 22, 2016 after the vehicle passed the e-test.
• The vehicle remained at the Hamilton mechanic shop overnight and Ms. B returned back to London with her sister (who works in Hamilton).
• The next morning, August 23, 2016 Ms. B came back to Hamilton with her sister and waited at her sister’s workplace from 7 a.m. to 11 a.m.
• The applicant and Mr. R arrived at Ms. B sister’s workplace. They arrived in Mr. R’s vehicle at approximately 11 a.m. to pick up Ms. B.⁷
• From Ms. B’s sister’s workplace, the three of them go to the mechanic shop to pick up Ms. B’s vehicle and then drop off Mr. R’s car.
• The three then drive to Mississauga in Ms. B’s vehicle at the behest of Ms. B and they just drive around.⁸
• They returned to Hamilton around 7:30-8:00 p.m.⁹
• The applicant was to start work around 7:00 p.m. but called in to say he was going to be late.¹⁰
• The incident occurred when the applicant was trying to apply the brakes, but the brakes were not working.
• The back of the car was shaking.
• At this time Mr. R, who was behind the driver Ms. B, moved to behind the passenger so he could speak with Ms. B.¹¹
• Ms. B saw a tree and decided to go to the tree to get the car to stop.
• The airbags deployed and the applicant’s face hit the airbag and his nose was bleeding like a waterfall.¹²
• Ms. B does not recall how fast she was going on impact but does state 60-65km/hr. probably.

16Mr. R the rear seat passenger provided a statement on October 3, 2016 and stated the following:

• The day before the incident or a few days before, Ms. B called Mr. R about helping her get an emission test so that she could register the vehicle (which was involved in the incident) properly in her name.
• Ms. B had a temporary permit plate on the vehicle, and she drove it from London to Hamilton.
• Mr. R led her to the mechanic shop in that he drove his vehicle to the mechanic shop, and she followed in her own vehicle, he does not know the owners of the shop personally, but they did good work for him in the past.
• The shop replaces some sensors, and it then passed the e-test on August 22, 2016 (the day before the incident).
• August 22, 2016 Mr. R then took Ms. B from the mechanic shop to Service Ontario to get a new sticker for her plate and then Ms. B drove back to London after getting the license plate sticker.
• The next day, August 23, 2016 Mr. R called Ms. B as he did not have a car that was drivable, and he wanted her to come get him and the applicant so they could go to Mississauga to drive around.
• Ms. B drove from London and met Mr. R at his residence and then they drove to pick up the applicant.
• The applicant was picked up between 2:30-4:30 p.m.
• In Mississauga they went to get a sandwich from a plaza and went to some store in the area of Square One on Hurontario Street. Mr. R was looking for a suit to buy while in Mississauga.
• The applicant then got a call from work asking if he was coming in and the applicant told them he would be late.
• They left Mississauga in the evening when it was dark, and Mr. R gave directions to Ms. B leading Ms. B towards the applicant’s workplace.
• The incident occurred when they were 3-4 minutes from the applicant’s workplace.
• Just prior to the incident, there was a clicking noise in the car, but the car was not shaking and Ms. B suddenly said that she had no brakes.
• They were following another car at the time and were close enough to see two car seats.
• Ms. B panicked and steered the car toward the ditch, back on the road and then the car went into the tree.
• Believes the car was still going 55-60 km/hr. when it hit the tree.
• The airbags went off and the applicant had his face full of blood.
• The ambulance came within 7 minutes of the incident.

17The applicant did not provide a statement in the three months following the incident, but he and Ms. B did attend at examination under oaths. The EUOs are more detailed however further inconsistencies are noted with respect to the events of the day of the incident.

18Ms. B’s EUO takes place on November 22, 2016 and in that EUO she states the following:

• Confirms that the front brakes were fixed by her father on August 12, 2016.
• Confirmed that prior to the e-test of August 22, 2016 an earlier e-test was done in London and the vehicle did not pass because it required some repairs.
• Her sister told her of a place in Hamilton that could do the repairs and e-test and the location of the mechanic shop¹³ was told to her by her sister and Ms. B took her car there either on the 21st of August or the 22nd.
• At some point while driving the vehicle from London to Hamilton to get it repaired Ms. B received a call from her insurer indicating that there is no insurance because she has a temporary sticker on her plate.
• Ms. B states that she then pulls over at gas station and has the vehicle towed to the mechanic shop in Hamilton and she rides with the tow truck to get to the mechanic shop
• She then waits until after 7:00 p.m. for her sister to pick her up from the area of the mechanic shop and goes back to London because Ms. B’s vehicle will not be ready until the next day.
• The next morning Ms. B returns to Hamilton with her sister at 7 a.m. and then Mr. R and the applicant met Ms. B at her sister’s workplace and picked her up, this occurred anywhere between 11:00 am – 12:30 p.m.
• Then the three go to a Tim Hortons drive thru and then the mechanic shop.
• The vehicle is ready by approximately 3-5 p.m. Ms. B and Mr. R go to the Ministry to get the sticker for the license plate.
• The mechanic shop closes at 5 p.m.
• By the time they return to the mechanic shop, the shop is closed, and the vehicle is outside.
• They then pick up the vehicle from the mechanic shop and the three of them head to Mississauga.
• They return back to Hamilton and approximately 8:30 p.m. or so they are at a Tim Horton’s in Hamilton with the plan to go and drop the applicant off at work after leaving this Tim Horton’s.

19The EUO of the applicant is completed on March 29, 2017 some 6 months after the incident. The applicant provides the following with respect to the events surrounding the incident

• He had been in Ms. B’s vehicle prior to the incident.
• The applicant met up with Ms. B at around 10-11 a.m. the day of the incident.
• Ms. B picked him up from his residence and then when in the car, Mr. R called and said he wanted to go to Mississauga they met Mr. R around 12:00 p.m. and then went to Mississauga following a coffee stop at Tim Hortons.
• During the drive the applicant did not notice any issues with the vehicle.
• They left Mississauga at approximately 2:00 p.m. and returned to Hamilton.
• They then stopped for coffee at Tim Hortons.
• After Tim Hortons the intention was to take drive the applicant to work.
• The applicant was to start work at 9:00 p.m.
• The incident took place 3-4 minutes away from the applicant’s workplace.
• The incident took place prior to the start of his shift.
• The incident took place because Ms. B was scared of another truck or vehicle that was on the road and she panicked.
• The car impacted with the tree, but the applicant did not see the tree prior to the collision.
• The vehicle was travelling around 50km/hr., and/or 55km/hr. when it impacted the tree.
• The applicant lost consciousness, his face was bleeding and came to when the ambulance and police were there.

20The applicant argues that there were issues with translation during the EUO and that is why there are inconsistencies. In support of this the applicant provides the expert report of Ms. Gulzar, an interpreter, dated April 5, 2018 and an addendum report by her dated September 7, 2018. In both the report and addendum report I note that Ms. Gulzar points to the specific questions, answers and statements from the transcripts that were misinterpreted. I note however, that the misinterpreted answers, questions and/or statements are not the items summarized in paragraph 19 above.

21As well during the course of the EUO the applicant did not voice any issues with translation, and while I appreciate it would be difficult to do so I do note that during the hearing the applicant was able to do so and in fact did so. There is also no information provided correcting the answers prior to the hearing so that complete and accurate picture could be presented to the respondent and the Tribunal.

22Further, I note during the EUO that the applicant refused to answer questions with respect to the events leading up to the incident and specifically the events between 2:00 p.m. and the time of the incident. Thus, the gap between this 2:00 p.m. stop and the 9:00 pm start of the shift is never explained.

23At the hearing again the story about the events leading up to the incident changes. The applicant now testifies that he and Mr. R had a plan to go to Mississauga. Ms. B called the applicant in the morning and the applicant told her about the plan. Now as per the testimony at the hearing, the applicant states that he was at a Tim Hortons and Ms. B and Mr. R arrive in the car together to pick him up. The three then head to Mississauga and then they return back to Hamilton at around 7-8 p.m. The applicant also testified upon returning there was a stop for coffee, and he was then being driven to work following this coffee stop.

24Further at the EUO the applicant confirmed he was to start work at 9 p.m. and that he was on the phone with his supervisor at the time of the incident. The incident as per the police report occurred at 9:55 p.m. Again, there is approximately 2 hours from the time of arriving back in Hamilton at 8 pm. to the time of the incident.

25The testimony at the hearing by Mr. R differs from his statement in that Mr. R testifies that in the morning on the day of the incident there was a three-way phone call between Ms. B, the applicant and Mr. R. and the plan was made during this call to go to Mississauga. I note that the applicant never in the hearing or in his EUO mentions a three-way call.

26According to the testimony of Mr. R, Ms. B picks him up first and then they both pick up the applicant from the Tim Horton’s. This is inconsistent with Mr. R’s earlier statement and certainly the opposite of Ms. B who speak about the applicant and Mr. R meeting her.

27Mr. R when asked about the inconsistencies between his earlier statement and the previous statement states that the person taking his earlier statement misunderstood what he said at almost every sentence. Mr. R posits it is because there was a lot of noise. However, it is important to note that the applicant never states this to the person taking the statement makes no mention of it anywhere and states that his memory is clearer at the hearing, some three years post-incident.

28The above is not a full account of all of the inconsistencies that came out during the hearing and through the evidence, however the above provides enough to show that the inconsistencies are so vast that they cannot be overlooked.

29The applicant posits that the inconsistencies related to the events leading up to the incident are not relevant.

30In isolation the events or inconsistencies may not be relevant but considering the context; that three people who supposedly experienced the same traumatic day have differing recollections for that day, it simply behooves logic. This context then colours the credibility and believability about the incident and the events surrounding the incident. Simply put the parties that were involved in this incident are not credible.

31Moving forward to the incident the applicant submits that the vehicle impacted with the tree at 50-60 km/hr. This is indicated in the police report which is based on the information provided by the driver, the applicant and the passenger. On this point all three are consistent and there are no independent witnesses.

32As well when looking at the EUOs and the statements of Ms. B and Mr. R there is no consistency as to what time the incident took place. None of the three involved put the incident time at close 10:00 p.m. despite the police report indicating the accident took place at 9:55 p.m. On the whole the applicant, Ms. B and Mr. R have the incident occurring between 8-9 p.m. This one hour is never accounted for.

33The inconsistencies between those involved cannot be overlooked.

34I also find the report and testimony of the expert mechanic Mr. Sullivan helpful in determining if this incident is an accident.

35I note that the applicant raised an objection to Mr. Sullivan not being a “human factor’s expert” and thus should not be opining on the driver’s reactions while she was operating a motor vehicle, I find that the applicant’s reactions while driving is not the persuading or relevant factor.

36What is relevant from the testimony and expert reports of Mr. Sullivan is the state of disrepair of the vehicle in that the vehicle was in such a state of disrepair that it would have been noticeable. Further Mr. Sullivan confirmed that the car while drivable would be very hard to steer and a driver would have to constantly be over steering in order for the vehicle to drive straight. It 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. As well the photographs of the vehicle show an old vehicle in state of disrepair.

37I am also not persuaded by the events that took place following the incident. There were photographs of the applicant lying with his eyes closed on the grass near the scene of the incident. Mr. R testified that he took those photographs from his phone and sent them to the applicant’s mother because the applicant’s mother was calling Mr. R at the time of incident. Mr. R did not speak with the applicant’s mother until after the photographs were sent. In other words, Mr. R simply provided the photographs of the applicant to his mother uninitiated. This again defies logic. I note that the applicant confirms that he lived with his mother at the time of the incident. The applicant’s evidence is that he was scheduled to work that evening and he called in late. This would mean that at the time of the incident the only people who did not know that the applicant was not at work would be Ms. B, Mr. R and the applicant’s employer. There is no evidence that the 33-year-old applicant called his mother to advise that he was not at work nor is there any evidence that his mother should be worried and thus required photographs.

38Further, in the neuropsychological assessment by Dr. Salmon of May 17, 2017 the applicant’s mother provided information during her collateral interview. In this collateral interview she confirmed that she did not know about the incident until 12 hours later and then did not tell her anything about the incident or that it had occurred until 2-3 days later.

39The photographs are also problematic because the applicant testifies that the photographs are taken because the applicant asked Mr. R to do so because the paramedics/doctors had torn and cut his clothes. Again, this is inconsistent with the testimony of Mr. R.

40The respondent points out further issues with credibility including the fact that the applicant in speaking about his injuries tells doctors and others that he had a broken nose and broken leg in the accident. The medical records confirm that this is not the case as there were no fractures to the nose nor are there any fractures to his leg. Further, the applicant reports a lot of blood that he alleges is from the airbag in the collision, Mr. R and Ms. B describe it at various times as a waterfall of blood or a full face of blood, however the pictures of the airbag again taken the night of this accident shows that there is little to no blood on the airbags.

41Further there are issues with whether the injuries as described are in line with the incident as described.

42Again, the onus is on the applicant to show that this incident is an accident. There is no doubt that the tree and the vehicle made contact. The police saw this. The applicant submits however that the vehicle was travelling at 50-60 km/hr. when it impacted the tree. There is no evidence for this.

43The evidence is that the tree and the vehicle were in contact. Dr. Getahun provided evidence that the injuries sustained by the applicant are in line with acceleration and deceleration, however Dr. Getahun does not indicate that the injuries sustained are in line with the vehicle coming to a dead stop while travelling 50-60 km/hr. (as opposed to decelerating quickly when one brakes)

44Dr. Getahun opines that the injuries that the applicant sustained are consistent with a car coming to a stop quickly while travelling 50-60 km/hr. but then states that injuries that should be consistent with a car hitting a tree and stopping at 50-60 km/hr. would be a plethora of things including facial fractures. I note that there are no facial fractures. Dr. Getahun also opines that he would expect to see injuries to the clavicle and shoulder from the seatbelt and whiplash injuries to the neck. I note that the ambulance call report specifically states that there is “no signs of trauma on right shoulder where seat belt would have restrained pt [patient]”.

45I also note that the blood to the applicant’s nose, as per the ambulance call report is dried blood with no active bleeds. Again, contradicting the evidence of Dr. Getahun about significant facial injuries for a vehicle coming to a dead stop at 50-60 km/hr.

46Based on the above I am not persuaded that this vehicle was being used in an ordinary and well-known manner while the applicant was a passenger. 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 and thus the applicant has not met his onus to show that the vehicle was being used in an ordinary and well known purpose.

47The Tribunal has held in M.D. v Intact¹⁴ that a staged accident is not an accident. In M.D. the applicant argued that even if the accident was staged it was still an “accident” as defined. The Tribunal rejected this and in my opinion properly held that the purpose of a staged collision is for the participant to profit from the insurance company and that a definition of “accident” that allows an individual to profit from the insurance company because of their intentional act is contrary to public policy and the Insurance Act, RSO 1990, c I.8. While the M.D. decision is not binding it has been adopted by the Tribunal in other decisions and thus, I adopt the holding that a staged accident is not an accident.

48I am also not persuaded this incident caused an impairment. I acknowledge that the applicant went to the hospital on the night of the accident. However, the ambulance call report notes nothing objective in terms of injuries as noted in the examples below:

• The applicant is unable to determine where the headache starts from and where it ends. He tells the paramedics through Mr. R (who is translating) that the headaches feel like “thunder”
• Pain on lumbar spine, no obvious trauma or deformity, no other complaints of pain or discomfort on palpitations.
• “Complaints of right lower leg pain – pain on palpation 10/10- assuming the tibia palpation, still excellent colour, lower limbs identical when compared, excellent pedal pulses and sensation, pt extremely volatile when limb was palpated.” [emphasis added]

49As noted above the applicant is indicating his own pain complaints but the paramedics are not noting anything objective. Further, despite the applicant submitting that he has issues with his nose as a result of the incident, I note that there is nothing more than dried blood noted by the paramedics and that when being admitted to the emergency department of the hospital the hospital notes that the chief complaint is not the applicant’s nose but the lower extremity

50Further, as per the hospital records the applicant does not even allow himself to be examined by the emergency room physician (ERP) and instead discharges himself because he was upset that the paramedics cut his clothes in order to assess him at the scene. Specifically, the hospital notes state the following:

“Pt [patient] was told to have eyes examined by ERP. Pt refused. Pt wanted to use washroom. Writer notes after the washroom pt very upset b/c [because] pants were cut, tank top was cut by EMS and clothes were ruine[d]. Writer offered a change of clothes pt refused and stated he would be taking pictures and complaining as his shoe was [m]issing. Writer notes that only 1 [one] shoe was brought by EMS. Pt was walking with a steady gait. As pt was leaving he mentioned that he had a headache writer tried to explain to stay as per the ER doc still wanted to assess and pt. Refused pt yelling out about how much better Iraq is than Canada when leaving. Pt requesting a taxi. Writer brought patient to taxi phone. Pt had a GCS of 15. Pt is alert and oriented x3. Pt has steady gait. Pt told writer to leave and stated he would be fine. Pt appeared very angry. Tried to deescalate but pt refused.”

51I am not persuaded that applicant had any impairments caused by this incident because it is not credible that despite impacting with a tree at 50-60 km/hr. and having (as the applicant put it) a “face full of blood” and despite having 10/10 leg pain the applicant chose not to get treated at the hospital and instead was so concerned that his clothes were cut by the paramedics who attended to help him and was upset about a missing shoe that the applicant chose to walk out of the hospital.

52Further the applicant was never really truly assessed at the hospital. The applicant reports he had a broken leg and broken nose which is not true. The applicant submits he has ongoing issues with his nose due to the nasal injuries however again there is no persuasive evidence that the incident is the cause for this as it is only based on the applicant self-reporting same. As per the report of Dr. Getahun the applicant showed up to the assessment with Dr. Getahun using a cane to assist with his gait which when he left the hospital the night of the incident, he had no issues with his gait.

53I also find that the applicant was able to express his anger about the hospital and the specifics of comparing hospitals in different countries, requesting a taxi, asking the nurse who wrote the note to leave. Yet the applicant could not speak to the paramedics at the scene of the accident to at least provide them with some, however minimal, information about his injuries.

54Therefore, based on the evidence and reasons noted above I find that the applicant has not shown that he has impairments from this incident let that the cause of the impairments is this incident.

Willful Misrepresentation

55Pursuant to section 53 of the Schedule the insurer to may terminate the payment of benefits on behalf of an insured person if a) the insured person has wilfully misrepresented material facts with respect to the application for the benefit and b) if the insurer provides the insured person with notice setting out the reasons for the termination.

56With respect to whether the applicant willfully misrepresented material facts the parties agree that the onus is on the respondent to show willful misrepresentation of the material facts by the applicant. The parties agree that notice pursuant to section 53(b) of the Schedule was properly provided to the applicant.

57The respondent in fulfilling their onus relies on the ongoing inconsistent statements of the applicant as well as the passenger and the driver which is distilled in great detail above.

58The respondent became suspicious of the claim because the vehicle was insured a few days prior to the incident despite the vehicle being purchased much earlier. The circumstances on their own as to the insuring of the vehicle would not be relevant to this matter except for the fact that Ms. B states that the applicant was involved and/or provided payment for the repairs that would assist in allowing the vehicle to pass the emissions test in order for Ms. B to obtain the necessary “sticker” that would allow the vehicle to legally be on the road and be insured.

59The applicant denied this involvement. However, the surveillance evidence obtained by the respondent shows the applicant on March 20, 2017 attending and socializing at the body shop/mechanic shop that did the repairs and e-testing prior to the incident. This at the very least corroborates the evidence of Ms. B that the mechanic shop was not at arm’s length from the applicant.

60Again, none of the the three involved in this incident have a consistent story about how they came to be in the vehicle that day, nor do they have a consistent story about the events leading up to the day of the incident and what transpired just prior to the vehicle and tree making contact or what transpired following. The applicant provided oral testimony, the driver, though summoned by the applicant, did not attend the hearing and the rear seat passenger, Mr. R provided testimony that was inconsistent with his earlier statements.

61The applicant however notes that the onus is on the respondent to prove willful misrepresentation and the respondent did not call Ms. B and thus an adverse inference should be drawn. I agree that I can draw this adverse inference however given the evidence as distilled above an adverse inference towards the respondent would not change the evidence.

62The respondent has not proved with certainty what the role of the applicant was in this incident, just that he played a role. I find that regardless of what the applicant’s role was in this incident, his description of the incident, the circumstances leading up to it and the circumstances thereafter were made with the intent of misleading the respondent about what actually happened. This is a willful misrepresentation.

63Thus, the respondent has met its onus to show that the applicant willfully misrepresented material facts with respect to the application for the benefit and/or benefits under the Schedule.

CONCLUSION

64For the reasons noted above the alleged accident of August 23, 2016 is not an “accident” as defined under the Schedule. The applicant willfully misrepresented material fact with respect to the application for the benefit and/or benefits under the Schedule.

Released: January 14, 2022

___________________________

Monica Chakravarti, Adjudicator

Footnotes

1. 1Tab 45, Transcribed Statement of Benaye Nouri dated September 20, 2016 page 37 and 41
2. 2Ibid, page 54
3. 3Ibid page 56
4. 4Ibid page 57
5. 5Ibid page 58
6. 6Ibid page 60
7. 7Ibid page 88-89
8. 8Ibid page 95-96
9. 9Ibid page 123
10. 10Ibid page 121
11. 11Ibid page 109
12. 12Ibid page 114
13. 13Transcript of the EUO of Ms. Benaye Nouri, dated November 22, 2016 page 59-60
14. 1417-000532 v Intact Insurance Company, 2017,87155 (ON LAT)