Tribunal File Number: 18-000798/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:
Motor Vehicle Accident Claims Fund (MVACF)
Applicant
and
[I.G]
Respondent
DECISION
PANEL:
Samia Makhamra, Adjudicator
Appearances:
For the Applicant:
Motor Vehicle Accident Claims Fund, Applicant
Andrew Choi, Counsel
For the Respondent:
[I.G.] (did not attend)
Heard:
Via Teleconference: February 21, 2019
OVERVIEW
1The Fund, the applicant in this case, seeks repayment of statutory accident benefits paid to the respondent, referred to as IG. The amount in question is for income replacement benefits and medical benefits paid to IG. The Fund is seeking repayment on the basis of wilful misrepresentation pursuant to s.52 of the Statutory Accidents Benefits Schedule – Effective September 1, 2010 (the “Schedule).
2In short, the Fund submits that it is entitled to repayment because IG was not employed at the time of the incident and should not have received IRBs. Further, IG was not involved in an automobile accident as claimed.
3Unable to recover monies paid to IG, the Fund applied to the Licence Appeal Tribunal (the “Tribunal”). Following a case conference, the Tribunal ordered this teleconference hearing, with written submissions from the parties due well in advance of the hearing. IG did not participate in the last case conference that set out this hearing, nor did he provide written submissions, or call into the hearing.
Attendance of the Respondent
4I am satisfied that IG was given proper notice of this hearing.
5The Tribunal was in contact with IG well into August 2018. The Tribunal sent IG copies of a case conference report and order to his last known address, and the documents were not returned to the Tribunal.
6The Notice for this hearing was sent to the parties on November 28, 2018. The Notice advised the parties of the date of the hearing, February 21, 2019, and of a timetable for written submissions in advance of the hearing. The Tribunal sent the Notice to IG at his last known address. The Notice was returned. However, IG has not advised the Tribunal of any change in his contact information, which he is required to do, according to Tribunal Rule 4.4. Therefore, I determine that the Tribunal properly notified IG of the hearing.
Chronology of contact with the Respondent
7IG’s address was provided to the Tribunal by the Fund. Using the address provided, the Tribunal contacted IG early on, requested a response to the application, and notified him of a case conference. The notice of case conference dated June 8, 2018 advised IG that a case conference had been scheduled for July 23, 2018. IG was represented by counsel at the time, however, counsel got off the record shortly before the case conference.
8IG did not attend the July 23 case conference. A Tribunal order dated July 23, 2018 adjourned the case conference to September 25, 2018, to afford IG the opportunity to attend and obtain new counsel. In addition, the Order stated the following at paragraph 8, under the hearing ‘Notice re: non-attendance’, the order stated the following:
“If the respondent does not attend the next case conference a date for a hearing will [sic] scheduled in his absence.”
9A case conference report and order, both dated Julys 23, 2018 were sent to IG’s address on record. These documents were not returned to the Tribunal.
10Ultimately, another case conference took place on October 18, 2018. A Notice of Case Conference dated August 16, 2018 was sent to IG. This time, the Notice was returned to the Tribunal. The case conference proceeded in IG’s absence on the basis that he had been properly notified of the proceeding. Specifically, the adjudicator determined that the Tribunal had made best efforts to notify IG at his last known address, and that he had received the case conference report and order from July 23, 2018 advising him that a hearing would be scheduled in his absence. The adjudicator referred to Rule 4.4 of the Tribunal’s Rules of practice and procedure, which requires parties to advise the Tribunal of any change in contact information; something IG failed to do.
ISSUES IN DISPUTE
11The issues to be decided are:
i. Is the Fund entitled to a repayment of $28,600.00 for income replacement benefits previously paid to the respondent?
ii. Is the Fund entitled to a repayment of $4,954.05 for the cost of prescription medication previously paid to the respondent?
iii. Is the Fund entitled to interest?
RESULT
12I find that there was an overpayment of benefits, and that the overpayment by the Fund was made as a result of wilful misrepresentation by IG. This means that IG is liable to repay the Fund $28,600.00 for income replacement benefits, and $4,954.05 for the cost of prescription medication previously paid to him, in addition to accrued interest at the prescribed rate.
BACKGROUND
13IG claimed to have been injured in an automobile accident on December 2, 2012.
14IG applied for and received benefits from the Fund pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule).
15According to IG, the motor vehicle accident happened when he was involved in an altercation with two individuals while out with a friend the evening of December 2, 2012. These two individuals eventually assaulted IG, injured IG in his right eye, got into a vehicle and, as they were fleeing, the passenger side of the vehicle struck IG’s left side.
16The Fund paid income replacement benefits (IRBs) in good faith and on a without prejudice basis for the period of December 9, 2012 to April 24, 2014, in the amount of $28,600.00 based on the information provided in IG’s Employer’s confirmation Form. The Fund also paid to IG an amount of $4,954.05 for prescription medication which he claimed was for his left leg pain from injuries sustained in the alleged accident.
17IG submitted an application for accident benefits, employer’s confirmation form, and a notice of collection of personal information to the Fund, which was received on February 21, 2014. For IRBs, IG claimed that he worked for [a car detailing company] as an auto detailer between October 22, 2012 and November 29, 2012, earning over $1,200.00 per week. He provided an employer’s confirmation of income in support of this claim.
18Subsequently, IG’s entitlement to IRBs was an issue at a FSCO arbitration. A decision dated April 10, 2015, found that IG’s claim of being employed at the time of the accident was not credible leading to a finding that he was not employed. As a result, IG’s claim for IRBs was denied. This decision was later affirmed on appeal on April 20, 2017.
19IG was a key witness in the criminal trial of the defendants in connection with the events that took place on December 2, 2012. Justice MacDonnell found that IG was not struck by the vehicle involved in the December 2, 2012. This was based in part on independent witness evidence from the investigating officer.
20A mistrial application was brought before the court on behalf of the defendants. At the mistrial application, it was determined that IG had committed perjury at trial. IG also made an offer to assist one of the defendants in exchange for help in his accident benefits claim. Justice MacDonnell declared a mistrial as a result of IG’s perjury and willingness to obstruct the course of justice.
ANALYSIS AND REASONS
21Section 52 of the Schedule prescribes that a claimant is liable to repay any benefit paid to her or him as the result of an error or as the result of [willful] misrepresentation or fraud. Section 52(3) requires the insurer to notify the claimant of the requirement to repay benefits within 12 months of the overpayment. This limitation period does not apply to overpayments involving willful misrepresentation or fraud.
Repayment of IRBs
22The Fund submits that IRBs were paid as a result of [willful] misrepresentation: IG’s claim to be working was found not to be credible at a FSCO arbitration, and, as a result, IG’s claim for IRBs was denied. Of note, the only evidence that existed with respect to IG’s alleged employment or self-employment was what he had reported in his tax returns and a letter from his alleged employer.
23I reviewed the FSCO decision, the appeal decision, the submissions, as well as the information IG provided to the Fund in support of his claim for IRBs. The evidence shows that IG’s claim to be working was not substantiated, with the sole basis in support of this claim being the employer’s confirmation of income. I have received no submissions from IG to challenge the Fund’s argument. In addition, even if IG was working at the time of the accident, he was not in an accident and, on this basis, he is not entitled to any accident benefits. As a result, I find that the Fund has met its onus and accept that there was willful misrepresentation on the part of IG.
24IG is liable to repay the Fund $28,600.00 for income replacement benefits paid to him, in addition to accrued interest at the prescribed rate.
Repayment of prescription medications
25Based on the evidence submitted in respect of the criminal proceedings and the mistrial, the Fund submits that IG was not struck by a vehicle which also amounts to [willful] misrepresentation.
26Again, I have received no submissions from IG to challenge the Fund’s argument. I find that the Fund has met its onus and accept that there was [willful] misrepresentation on the part of the applicant.
27Again, I have no submissions from IG to challenge the evidence. I have considered the Fund’s submissions and supporting evidence, I find that the Fund has met its onus and accept the finding that indeed IG was not struck by a vehicle on December 2, 2012. With no challenging evidence, I accept the Fund’s submissions, and find that IG’s claim of an accident amounts to [willful] misrepresentation.
28IG is liable to repay the Fund $4,954.05 for the cost of prescription medication previously paid to him, in addition to accrued interest at the prescribed rate.
CONCLUSIONS
29IG is liable to repay the Fund $28,600.00 for income replacement benefits paid to him, in addition to accrued interest at the prescribed rate.
30IG is liable to repay the Fund $4,954.05 for the cost of prescription medication previously paid to him, in addition to accrued interest at the prescribed rate.
Released: October 8, 2019
___________________________
Samia Makhamra
Adjudicator