Aviva General Insurance Company v. N.G., 2019 CanLII 119718

Aviva General Insurance Company vs. N.G., 2019 ONLAT 18-005588/AABS

Tribunal File Number: 18-005588/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:

Aviva General Insurance Company

Applicant

and

N. G.

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Monica Pathak, Counsel

For the Respondent: None

HEARD: In writing on January 28, 2019

OVERVIEW

1The respondent was involved in an automobile accident on September 26, 2016 and sought benefits from the applicant pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The applicant paid income replacement benefits (“IRBs”) to the respondent and now claims a repayment of the benefits paid and has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

2Although the respondent has not participated in the Tribunal’s adjudicative process, I am satisfied he has received proper notice of the Application by an Insurance Company (“the application”) and the notice documents sent by the Tribunal. The applicant provided a certificate of service which duly notes the respondent was personally served with the application on April 3, 2018. The case conference and hearing notices were sent by the Tribunal to the respondent via courier and are deemed to have been received pursuant to Rule 6.2 of the Common Rules of Practice & Procedure.

ISSUES

3The issues in dispute in this hearing are:

i. Is the applicant entitled to the repayment of income replacement benefits (“IRBs”) in the amount of $2,400.00 for benefits paid during the period spanning October 1, 2016 to November 16, 2016?

ii. Is the applicant entitled to interest on the overdue repayment of the income replacement benefit?

RESULT

4The applicant is not entitled to a repayment of IRBs or interest.

BACKGROUND

5The respondent was involved in an accident and received IRBs from the applicant. The respondent filed an Application for Accident Benefits with the applicant which indicated the respondent’s address was different than the address provided when the respondent previously renewed the policy of automobile insurance. The applicant investigated the matter and concluded the respondent wilfully misrepresented his home address at the time the policy was renewed, invalidating the agreement. The applicant cancelled the policy, repaid premiums to the respondent, and claimed a repayment of the IRBs it paid.

6Section 52(1)(b) of the Schedule permits the applicant to claim a repayment of IRBs paid to the respondent if the respondent was disqualified from receiving IRBs. Section 31(1)(b) provides the applicant is not required to pay IRBs to any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into a contract of automobile insurance or who intentionally failed to notify the insurer of a change in a risk material to the contract.

7An insured’s address of residence falls under the category of a risk material to the contract. For the applicant to be entitled to a repayment of IRBs, it must first prove, on a balance of probabilities, the respondent wilfully misrepresented his address when he entered into the contract of automobile insurance or, failed to notify the applicant of a change in address during the term of the contract.

DID THE RESPONDENT WILFULLY MISREPRESENT HIS ADDRESS?

8I find the applicant has failed to establish the respondent wilfully misrepresented his address when entering into or during the term of the insurance contract. As a result, the applicant is not entitled to a repayment of IRBs. My reasons are as follows.

9The motor vehicle accident report does not support the applicant’s position. The motor vehicle accident report lists the respondent’s address as the same Durham address the respondent claimed to have on the auto insurance policy.

10The application for accident benefits (OCF-1) is not proof of wilful misrepresentation. The document only lists the respondent’s address as a Toronto location and does not note when the applicant started to reside there, nor does it state whether the address is the applicant’s permanent address.

11The statement in the adjustor’s log notes provided is not proof of wilful misrepresentation. The statement recorded in the log notes says the accident benefits package (“the AB package”) was mailed to the respondent at “the address he is staying at the moment”. This is only proof the respondent was at the Toronto address at the time the AB package was mailed out to him. Likewise, subsequent correspondence sent to the respondent at the Toronto address is also not proof of wilful misrepresentation. Instead, it is proof the applicant continued to stay at the Toronto address.

12The return mail addressed to the respondent’s Durham address is not proof of wilful misrepresentation. The applicant provides no evidence of the returned mail. However, it is irrelevant considering it occurred after the respondent advised the applicant of the Toronto address.

13There is no evidence to support the balance of the applicant’s submissions. The applicant claims an investigation was conducted and the respondent indicated he wilfully misrepresented his city of residence for various reasons however, there is no evidence of this. There is no investigation report or memo to review. Nor is there an Affidavit to support the findings of the investigation. The evidence which the applicant directed me to, the log notes, makes no mention of the investigation’s findings or of the respondent indicating a misrepresentation of his address. Similarly, the applicant’s submissions allege the respondent entered into a lease agreement for the Toronto address in 2009 however, submissions are not evidence and there is no evidence of this and there is no information in the log notes to support this claim.

CONCLUSION AND ORDER

14The applicant has failed to establish the respondent wilfully misrepresented his address when entering into the contract for insurance. As a result, the applicant is not entitled to a repayment of IRBs.

15The application is dismissed.