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:
M.F.
Appellant(s)
and
The Personal Insurance Company
Respondent
DECISION
PANEL:
D. Gregory Flude, Vice-chair
APPEARANCES:
For the Applicant:
M.F.
Volha Vinahradava, Paralegal
For the Respondent:
Gowthigaa Jegathaswaran, Claims Representative
Aubrey Avertick, Investigator
Jonathan Schrieder, Counsel
HEARD:
In Person on: June 26, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant, M.F., was involved in an automobile accident on March 22, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 O. Reg. 34/10 (the ''Schedule''). The applicant was paid certain benefits by the respondent, The Personal Insurance Company (“The Personal”). The Personal has asked for repayment of certain benefits it paid based on M.F.’s alleged wilful misrepresentation. M.F. has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.
2The heart of the dispute between the parties revolves around The Personal’s allegation that M.F. was not a passenger in her sister’s car when it was rear-ended on the evening of March 22, 2016. Initially, The Personal accepted M.F.’s claim for physiotherapy and chiropractic treatment and paid out $3,700. It has now formed the opinion that M.F. lied about being a passenger, that the accident was staged and that M.F. should repay to it the amount of $3,700.
ISSUES
3The issues as consented to by the parties and set out in the case conference order are:
i. Is The Personal entitled to a repayment in the amount of $3,700, being monies paid for medical/rehabilitation benefits to Alania Health & Rehab Clinic, due to a wilful misrepresentation of material facts?
ii. Is The Personal entitled to interest on any repayment due?
RESULT
4While I understand why The Personal has taken the position it has due to M.F.’s vague description of her involvement in the accident, I am satisfied that M.F. was in the car accident on March 22, 2016. She has not obtained a benefit through wilful misrepresentation and The Personal is not entitled to repayment.
PRELIMINARY PROCEDURAL CONCERNS
5There is a fundamental difficulty with the application. The sole substantive issue addresses The Personal’s entitlement to repayment of a benefit. Despite this, and somewhat surprisingly, M.F. brought the application, essentially seeking a declaration that she is not obliged to repay the benefit. The application is The Personal’s to pursue under s. 52, not M.F.’s. I was not directed to any specific section of the Schedule that would permit M.F. to seek the relief she is seeking.
6The Personal did not take issue with the form of the proceeding, either in its Response to the application or at the case conference. The “issue” in the case conference order was framed to reflect the repayment provisions of the Schedule. Thus, notwithstanding that the applicant commenced the proceeding raising a jurisdictional question, the case conference order properly identifies the legal question I must address.
7Rather than allow the form of the application to overcome the substance, and in the interests of an efficient, proportional, and timely resolution of the dispute between the parties, I find the best way forward is to deal with the hearing as if it were an application brought by The Personal for repayment rather than dismissing it because M.F. is seeking relief not permitted by the Schedule.
8In deciding to proceed, I note that there is no prejudice to The Personal. It clearly attended the hearing in the expectation that I would be deciding whether or not M.F. had an obligation to repay because of material misrepresentation. Its evidence was focussed solely on that issue and there were no restrictions on its ability to call witnesses and enter documentary evidence.
9The Personal characterizes the misrepresentation issue as an interplay between the definition of “accident” in s. 3 of the Schedule and s. 53 of the Schedule which permits an insurer to terminate benefits because of wilful misrepresentation or fraud. It is mistaken in this characterization, although the error has only a peripheral impact on the matter. Since the substance of this hearing is the repayment of a benefit, the operative section of the Schedule is s. 52, and more specifically s. 52(1)(a), not s. 53. The impact is peripheral only since the test for repayment in s. 52(1)(a) is that the benefit was paid based on wilful misrepresentation or fraud. While The Personal made submissions citing s. 53 in its allegations of wilful misrepresentation, I have taken them as applying to s. 52, which section engages the same test.
10In my view, The Personal should carry the onus of establishing entitlement to the repayment. When I raised this issue at the commencement of the hearing, The Personal took the position that M.F. had the onus and M.F. did not object to this position. Accordingly, M.F. [proceeded] to lead her evidence first, followed by The Personal. There was no reply evidence.
11Regardless of which party carries the onus, I find that M.F. has led sufficient evidence to satisfy me that she was a passenger in her sister’s car when it was struck from behind on March 22, 2016.
M.F. AS A WITNESS
12The Personal examined M.F. under oath on November 27, 2017. Having read the transcript, it is easy for me to understand why M.F.’s answers to the questions put to her raised red flags and led to the position The Personal now takes. The answers were vague in the extreme. M. F. could not remember what year the accident took place, whether it took place in the late afternoon or evening, what colour or make of car her sister was driving, or the colour or make of the other car in the accident. Her recollection of the accident was far removed from the detailed responses that are the usual stuff of cross-examinations. She recalls it happened after she, her sister and boyfriend had been at [the mall] in Vaughan. She recalled that the accident had happened close by the mall. She did not distinguish between the City of Vaughan and the City of Toronto, saying that the accident happened “in Toronto.” She could not remember her boyfriend’s surname. She described the accident as happening in the “late afternoon.” It actually happened around 8:30 p.m. on a March evening when it had been dark for several hours.
13In her testimony at the hearing, M.F. was equally vague. She had no better recollection of the vehicles involved in the crash. She was as vague about the location of the crash, recalling that it was in the vicinity of Bathurst Street and Promenade Mall. She eventually put it in the vicinity of Bathurst and Centre Street. She was only aware of the year of the crash because counsel had referred to it in opening statements.
M.F.’S CREDIBILITY
14Counsel for the respondent urges me to conclude that it is clear from the vagueness of the answers that the applicant is not credible. I decline to do so. There is medical evidence that indicates that, in addition to multiple sclerosis, M.F. suffers from “a significant cognitive dysfunction” and has done so for many years. M.F.’s neurologist, Dr. Paul O’Connor, notes the significant cognitive dysfunction mentioned above following a consultation on April 6, 2013. On October 13, 2013, Dr. O’Connor notes: “When I saw the patient in April of this year I was struck by her forgetfulness…On exam today, the patient was forgetful of the details relating to her medical history…The patient has MS with cognitive dysfunction and emotional lability.” On June 5, 2014, Dr. O’Connor notes: “she continues to be quite forgetful with decreased attention and concentration.”
15The medical evidence reinforces my own impression of M.F.’s testimony before me. While I had my initial doubts about her credibility because of her vagueness and the inconsistencies in her evidence, I quickly formed the impression that M.F. was trying to tell the whole story truthfully but simply did not recall events in the type of detail that was demanded of her. By the end of the hearing I had formed an opinion that she was a credible witness as far as she was capable of being so.
16M.F.’s evidence is also supported by other evidence. While the police accident report does not mention any passengers in the M.F.’s sister’s car, the attending police officer, P.C. Daniel Joshua, advised M.F. by email that the reason he did not mention her on the police report was because she appeared to have no injuries. He goes on to state: “I do remember you being there with your sister and I can tell the insurance company the same, if that helps. I won’t be able to add your name to the report after the fact, but if they wish to contact me, they can contact me at the office.”
17I note The Personal’s comments that P.C. Joshua did not attend at the scene until approximately 20 minutes after the occurrence. It submits that this was plenty of time for M.F.’s sister to contact her and have her rush to the accident scene and allege that she had been present. I find this submission to be pure conjecture and there is no evidence to support it. It was open to The Personal to seek witnesses, including the other driver, to testify about when M.F. arrived on the scene. It did not do so. In the absence of supporting evidence, I give this submission no weight.
18In sum, I find M.F. to be a credible witness as far as her abilities would let her. Her evidence lacks the usual detail that might be expected but the lack of detail is explained by her cognitive difficulties. Her various versions of the facts are overall consistent. There is also supporting evidence from P.C. Joshua.
ADVERSE INFERENCE
19The respondent asked I draw an adverse inference from the failure of M.F. to produce either her sister or the other driver to support her position that she was in the vehicle at the time of the accident. I decline to do so. As noted above, it is The Personal’s submission that M.F. was not in the vehicle when the accident occurred. It was for The Personal to produce that evidence to support its position. Had there been more than conjecture on that point, it may have fallen to M.F. to counter that evidence, but there is only conjecture.
THE PERSONAL’S EVIDENCE
20Aubrey Avertick is The Personal’s chief investigator in its Special Investigations Unit. He testified that he has been in that unit since 2010 and has investigated approximately 200 claims. His role is to take a second look and investigate claims if there is a suspicion of irregularity.
21In cross-examination, Mr. Avertick stated that it was the totality of the inconsistencies that led to the decision to deny M.F. insurance coverage and seek repayment. He noted that M.F. had been in four other accidents. Both vehicles in this case were older model vehicles, and the applicant’s policy was newly issued. The last two factors may be indicative of a staged accident. Parties buy old vehicles, insure them and shortly thereafter arrange a collision to collect benefits. In Mr. Avertick’s view, the overall vagueness and the other factors raised suspicion enough to deny coverage and seek repayment of benefits.
22I have already given my views on the impact of M.F.’s vague recollection of events. In dealing with Mr. Avertick’s other concerns, I find that the actual evidence does not support his concern about a staged crash. While it is true that both vehicles involved in the collision were older vehicles, they had not been recently purchased. M.F.’s sister had purchased her vehicle almost three years before the accident. The other driver had purchased her vehicle over six months before the accident. There was no evidence that either driver had recently purchased insurance coverage.
23The Personal pointed out that M.F. had recently purchased insurance coverage. It alleged that she had given a false address to get a lower premium. With respect to the address issue, M.F. testified that she moved to Walkerton and rented a room for a period of time. She just wanted to get out of the city. During that time, she purchased insurance for her car and gave the address where she was then living. The Personal did not argue this aspect of the insurance policy any further.
24After the accident, M.F. initially claimed benefits through her sister’s policy. This fact is inconsistent with her purchasing a new insurance policy as a precursor to staging an accident. Only later did her sister’s insurer and The Personal sort out which of them was the primary carrier.
25The Personal’s evidence does not establish that M.F., her sister and/or the other driver were involved in a scheme to defraud. While the facts can be made to fit that scenario with some difficulty, they can only be made to do so if M.F.’s cognitive dysfunction is ignored and her vague answers to questions are taken as evasion and indicia of dishonesty.
CONCLUSION
26Looking at the evidence as a whole, including all of the vagueness and apparent inconsistencies in M.F.’s evidence, I find that the evidence establishes that M.F. was in an accident on the night on March 22, 2016. I find that she did not make a wilful misrepresentation about her involvement in the accident to induce The Personal to pay her benefits.
ORDER
27I order that The Personal is not entitled to repayment in the amount of $3,700, being monies paid for medical/rehabilitation benefits to Alania Health & Rehab Clinic, as there was no wilful misrepresentation of material facts.
Released: August 27, 2019
D. Gregory Flude
Vice-Chair