C.I. v. Certas Direct Insurance Company, 2020 CanLII 12723

Citation: C.I. vs. Certas Direct Insurance Company, 2020 ONLAT 19-000637/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:

C.I.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Counsel for the Applicant: Victoria Polyakevich

Counsel for the Respondent: Jonathan Schrieder

HEARD: In person on: November 12, 13, 2019

OVERVIEW

1The applicant alleges she was involved in an automobile accident on March 5, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). The applicant was denied certain benefits by the respondent and applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

2A preliminary issue determination is being sought on whether the applicant was involved in an accident and whether she wilfully mispresented material facts when she applied to the respondent for statutory accident benefits.

3The respondent’s position is that the applicant’s alleged injuries from the March 5, 2018 collision were not the result of an accident as the accident was staged. The respondent subsequently advised the applicant of this and terminated her accident benefits in a letter dated October 30, 2018 which also requested a repayment of benefits in the amount of $8,189.25.²

4The applicant’s position is that she was in an accident as defined within s. 3(1) of the Schedule when a 2016 Ford Fusion (“Ford”) hit the driver’s side of her 2004 Toyota Sienna mini-van (“mini van”) while she was making a right turn to exit a parking lot. The applicant submits she did not willfully misrepresent the material facts and she was not involved in a staged accident. The applicant testified at the hearing but there were no other witnesses who testified on behalf of the applicant.

PRELIMINARY ISSUES

5At the hearing, the parties agreed the preliminary issues as noted in the Order dated June 26, 2019 should be varied and noted as follows:

i. Was the collision an accident as defined by s. 3(1) of the Schedule?

ii. Is the respondent entitled to terminate the payment of benefits because the applicant willfully misrepresented material facts with respect to the “accident” and her application for benefits under s. 53 of the Schedule?

iii. Is the respondent entitled to a repayment of benefits paid to the applicant as a result of her willful misrepresentation or fraud, pursuant to s. 52(1)(a) of the Schedule? If so, what is the quantum of the repayment?

RESULT

6The applicant was not involved in an accident as defined within s. 3(1) of the Schedule and is therefore not entitled to any statutory accident benefits.

7The respondent is entitled to terminate the payment of benefits under s. 53 of the Schedule because the applicant wilfully misrepresented material facts with respect to the “accident” and her application for benefits.

8The respondent is entitled to a repayment of benefits paid to the applicant as a result of her wilful misrepresentation or fraud, pursuant to s. 52 (1) (a) of the Schedule. The quantum of the repayment is $8,189.25 plus interest in accordance with the Schedule.

ANALYSIS

Burden of proof

9The applicant raised at the outset of the hearing the issue of what the standard of proof is when a dispute involves wilful misrepresentation and who bears the onus of establishing this. The respondent stated this should not form part of the preliminary issues for this hearing as the standard of proof is not listed as an issue in dispute for this preliminary issue hearing and the burden of proof is best left addressed by the Tribunal in its decision-making process on the merits of the case. The Tribunal case 17-000532 v Intact Insurance Company³ was referenced by both parties. There, the adjudicator found that the burden of proof rests with the applicant to demonstrate they were in an accident in accordance with s. 3(1) of the Schedule.

10I concur with the adjudicator’s findings in 17-000532 that the burden of proof rests with the applicant to prove that she was in an accident as defined within s. 3(1) of the Schedule. As the respondent has alleged the applicant materially misrepresented the facts leading to the respondent’s claim for material misrepresentation, I find it is the respondent’s onus to prove wilful misrepresentation on a balance of probabilities. It would be incontrovertible to apply a different standard of proof to this case.

11Section 3(1) of the Schedule notes the definition of an “accident” means an incident in which the use or operation of an automobile directly caused an impairment. The applicant must therefore prove on a balance of probabilities that she was involved in an accident as defined in s. 3(1) of the Schedule.

The “accident”

12The applicant testified that on March 5, 2018 she went to the house of her close friend, G.E to pick up a package as G.E. had just returned from Africa. G.E. asked her to meet a male person at Tim Horton’s that evening to give him the package to deliver to Nigeria, as it would be less expensive than shipping it via Canada Post. The applicant stated she drove her mini van with G.E. who was a passenger and sat in the back seat on the drivers’ side. The applicant stated her other friend, S.I. who was also a passenger, sat in the front seat. The applicant testified G.E. was speaking with someone on her cell phone to obtain directions. They were unfamiliar with the area they were driving to in order to meet the person at Tim Horton’s. It was the applicant’s testimony that they were exiting the plaza parking lot in her minivan which was stopped awaiting to turn right and the applicant did not see the Ford on the road, approaching her mini van from the left side. The Ford struck the driver’s side of the minivan at the left front fender/left front door. An ambulance showed up at the scene and she went to the hospital. The applicant’s vehicle was written off.

13The applicant’s position is that she was involved in an accident pursuant to s. 3(1) of the Schedule. The applicant argues there was a collision between two vehicles as the police were called and two officers showed up at the scene and a Motor Vehicle Accident Report⁴ (“police report”) was generated. The applicant was initially charged with careless driving, but the applicant stated the charge was later reduced to making an improper right turn. The applicant stated Res Judicata⁵ applies because the police showed up and issued a police report. The respondent disagreed that Res Judicata applies as a result of the police showing up at the scene, a police report being issued, and the applicant being charged. I find Res Judicata does not apply. I find that just because the applicant was charged, it does not equate to a finding of fact there was an accident. There was no evidence before me that a court determination has ever been made regarding the charges for careless driving/improper right turn. I note that an “accident” for the purposes of regulatory offences under the Highway Traffic Act⁶ isn’t one and the same as an “accident” for the purposes of entitlement to statutory accident benefits under the Insurance Act⁷, or the Schedule. Further, I do not find pleading guilty to a traffic charge confirms that an accident happened.

Was the collision a staged accident?

Inconsistencies with the applicant’s testimony

14There were several inconsistencies with the applicant’s testimony most of which the applicant failed to provide reasonable explanations for. I will address these inconsistencies.

15The applicant testified that she had no communication with the driver of the Ford following the collision, she could not remember what the driver looked like, or how many people were in the Ford vehicle. The “Motor Vehicle Collision Involved Person Statement”⁸ between the York Regional police officer and the driver of the Ford was produced for the hearing. It noted that the driver of the Ford stated to one of the police officers that he asked the lady driver of the other vehicle (applicant) if she was o.k. and he further stated she did not give him a clear answer. The applicant testified that she could not recall a conversation with the other driver as she stated she lost consciousness at the time of the collision when she hit the left side of her head. She stated her next memory was of the police taking her to a gas station.

16She could not identify at the hearing the area on the left side of her head that she had hit at the time of the accident. She stated she was dizzy and could not recall if she told police that she had pain, or that she was injured. The applicant did not produce any medical documentation, or photographs to substantiate she sustained a head injury at the time of the collision. The handwritten notes of the two police officers at the scene noted no injuries.⁹ It does not make sense for both police officers, who attended at the scene of the collision and are neutral parties to the collision to note there were no injuries in their handwritten notes if the applicant sustained injuries. Further, there was a physiatry insurer’s examination (“physiatry IE”) report, dated June 1, 2018¹⁰, prepared by Dr. M. Khan, physiatrist which noted the applicant reported the left side of her head struck the door during the collision, but the report noted she did not lose consciousness. The applicant stated she would not have told the physiatrist anything like that. There was no further explanation produced by the applicant to explain these discrepancies and no medical evidence was produced by the applicant that she hit her head at the time of the collision. As a result, I afford no weight to the applicant’s testimony that she struck her head when the two vehicles collided or that she lost consciousness following the collision.

17The physiatry IE report also noted the applicant failed to participate in several parts of the physical examination and there were several signs of a non-organic cause of her reported pain and Dr. Khan concluded she sustained uncomplicated soft tissue injuries.¹¹ The applicant testified that she was told by this assessor that she could advise if she did not want to participate in any portion of the physical examination but she did not provide an explanation as to why she chose not to proceed with many parts of the physical examination. I find the applicant’s explanation is unhelpful as it remains unclear why the applicant did not proceed with many parts of the physical examination. The applicant has not produced any medical evidence which confirms the injuries she alleges she sustained as a result of the accident. I am persuaded by the conclusions noted within the physiatry IE assessment report as the applicant’s unsubstantiated testimony is the only evidence produced at the hearing which refutes the conclusions noted within the physiatry IE report. I find she has not provided a fulsome explanation for not completing many parts of the physical examination with this IE assessor who was diagnosing the extent of her alleged physical injuries.

Inconsistencies with the examination under oath (EUO) evidence

18There were a number of inconsistencies with the evidence produced from the EUO transcripts from G.E. and S.I – the applicant’s friends. The applicant testified that she and G.E. were like sisters and had previously travelled in her minivan on a number of occasions when they went to parties and travelled to other places together. The EUO transcript of G.E.¹² contradicted this as the EUO transcript noted that on the evening of the collision, G.E. stated it was the first time she had been in the applicant’s mini van.

19The applicant testified that she went to pick up her friend S.I. and then drove to G.E.’s house in the evening to pick up a package. The applicant testified that G.E. knew the applicant was coming over. The EUO transcript of G.E. noted that the applicant and S.I. just “popped in” to G.E.’s house on the date of the collision at 4:00 pm and that they stayed there until they went to meet the male person at Tim Horton’s at 8:45 pm to drop off the package.¹³ However, the EUO transcript of S.I.¹⁴ noted that the applicant came to S.I.’s home in the evening to pick her up to go to G.E’s home and that they were only at G.E’s home for a couple of minutes. Furthermore, in the EUO transcript, S.I. described that G.E. lived in an apartment building and they had to take an elevator to get to the floor she lived on. This information was inconsistent with the applicant’s testimony which described G.E. living in a townhouse. The applicant’s explanation for this discrepancy was that S.I. was probably referencing where the applicant lived, and not G.E. The EUO transcript noted that S.I. was asked to describe what G.E.’s place looked like. Therefore, I do not accept the applicant’s explanation that S.I. was describing where the applicant lived. Further, the EUO transcripts of G.E. and S.I. noted very different timeframes when the applicant and S.I. showed up at G.E.’s residence. G.E.’s transcript noted 4:00 pm and S.I.’s transcript noted the applicant picked her up in the evening to go over to G.E.’s residence.

20In the EUO transcript of G.E., she submitted that the driver’s side front and rear doors of the minivan were hit in the collision.¹⁵ Pictures from the property damage file¹⁶ show damage to the driver’s front door but do not show damage to both drivers’ side doors. The applicant’s explanation is that G.E. may have been incorrect with what she submitted in her EUO which noted there was damage to both drivers’ side doors. Again, G.E. was not produced as a witness, so further clarification could not be obtained regarding her EUO statement.

21The applicant provided no explanation for most of the discrepancies within the EUO’s noted above. Neither, G.E. or S.I. were produced as witnesses to address the discrepancies raised within their EUOs. Therefore, I am not persuaded by the applicant’s testimony that the alleged accident and the events leading up to it were as the applicant has described. The applicant’s failure to call her friends (G.E. and S.I.) as witnesses amounts to an implied admission that their missing evidence would have been contrary to, or unsupportive to the applicant’s case. As a result, I draw an adverse inference.

Forensic engineering report

22William Jennings, engineer had commissioned two forensic engineering reports dated June 15 and August 13, 2018.¹⁷ He was qualified as an expert witness in the areas of engineering and accident reconstruction. It is the opinion of Mr. Jennings that the minivan and the Ford collided on a 90-degree angle and that the vehicles did not collide on an angle as noted within the police report diagram contained in the Motor Vehicle Accident Report. This conclusion was reached as Mr. Jennings stated the front bumper cover of the Ford had an even damage pattern. He had removed the front bumper cover of the Ford which revealed a wheel imprint from the minivan on the front bumper of the Ford. I am persuaded by Mr. Jennings explanation that the collision did not occur as evidenced within the police report diagram.

23Mr. Jennings concluded the minivan was stopped at the time of the collision and this was further confirmed as the event data recorder, also known as the vehicle’s black box which stores the most recent event data had recorded no event for this collision. The event recorder referenced 3 events, but none referenced this accident. His opinion was that the minivan was stopped at the time the Ford collided and that is why the event data recorder in the minivan did not record the collision. I am persuaded by Mr. Jennings opinion as it provides an explanation as to why the event data recorded did not record an event at the time the Ford collided with it. The applicant has also testified that her minivan was stopped at the time of the collision.

24Mr. Jennings testified that upon examination of the Ford’s event data recorder, it revealed a collision between the two vehicles had occurred. He further referenced his report which noted that in the final two seconds before the two vehicles collided, the trajectory of the Ford changed as it steered to the right.¹⁸ It was opined by Mr. Jennings that the Ford should have steered away from the mini van and it was illogical for the Ford to steer towards the minivan. I find this evidence supports that the Ford steered right to collide with the minivan.

25It was also stated by Mr. Jennings that at the time of the collision, there could not have been two adults (the driver and his wife) in the front seats of the Ford. The EUO transcripts of the driver of the Ford and his wife¹⁹ both noted that the husband was driving, and his wife was the seat belted passenger in the front seat. The event data recorder for the Ford revealed both front seat belt tensioners had deployed but the event data recorder confirmed the passenger front seat occupant was 55 pounds or less and the seatbelt was also so tight that it would not have been possible that the seatbelt had been worn by a normal sized adult. Mr. Jennings opined the length of the seatbelt webbing confirmed there was no seat belted occupant in the passenger front seat at the time of the collision. It was further stated by Mr. Jennings that there was no evidence of a passenger front seat occupant impacting the dash or another area of the vehicle.

26Mr. Jennings opinion was the right front occupant sensor was working properly at the time of the collision. A second forensic engineering report dated August 13, 2018 was produced by Mr. Jennings. This report was done for the purpose of re-examining the Ford to determine if the front passenger seat occupant sensor was working properly at the time of the collision. The report concluded the sensor was functioning properly at the time of the collision and confirmed Mr. Jennings’ opinion. From this evidence, I accept there was no occupant in the passenger front seat of the Ford at the time of the collision. The applicant has not produced evidence which challenges the findings of the forensic engineering report. There has been no explanation proffered to explain why the driver and his wife stated at their EUOs that they were both in the front seat of the Ford when it collided with the mini van as the driver and his wife were not produced as witnesses at the hearing. I draw an adverse inference from this and find the applicant’s failure to produce them as witnesses amounts to an implied admission that their missing evidence would have been contrary to, or unsupportive to the applicant’s case.

27Mr. Jennings stated that when he inspected both front seatbelts of the minivan, they were fully extended and entirely exposed. There were no loading marks (striations) on either of the front seatbelts. He stated both front seatbelts were pinched into the top D-ring and the pre-tensioners did not deploy. From this evidence, it was Mr. Jennings’ opinion that there were no front seat occupants in the mini van at the time of the collision. The applicant has not produced a competing report which challenges this evidence. I accept the forensic evidence of Mr. Jennings which concluded as a result of both front seatbelts in the mini van being fully extended and the pre-tensioners being pinched in the D-ring that there were no front seat occupants in the minivan at the time of the collision.

28The police report noted the applicant’s minivan was traveling approximately 40 kph and the Ford was traveling approximately 5 kph. Mr. Jennings opined that this was likely a mistake in the police report and the speeds noted for each vehicle were likely reversed from what the report had noted. The applicant had testified that the speeds were likely reversed on the police report and stated her vehicle was stopped when the Ford collided with her mini van. From this evidence, I accept that the approximate speed each vehicle was traveling was most likely reversed on the police report and it was previously noted above that I accepted that the applicant’s minivan was stopped at the time the vehicles collided.

29I am persuaded by the conclusions of Mr. Jennings that at the time of the collision: there was no front seat passenger occupant in the Ford, and that there was no front seat belted passengers in the minivan. The Ford vehicle did change its pattern of driving and steered toward the minivan in the two seconds prior to the collision, and that the minivan was stopped when the Ford collided into it. As no expert evidence has been produced by the applicant to challenge the evidence contained within both of Mr. Jennings’ reports, I am not persuaded by the applicant’s testimony due to the numerous significant inconsistencies between her testimony and the documentary evidence. These inconsistencies include: two police officer’s handwritten notes indicating there were no injuries, the discrepancies with the EUO transcripts of G.E and S.I. and the physiatry I.E. report of Dr. Khan. Based on the totality of the evidence before me, I find the applicant has failed to meet her burden of proof to establish that she was involved in an accident as defined within s. 3(1) of the Schedule. I find on a balance of probabilities that this collision was a “staged” accident and is therefore not an accident under s. 3(1) of the Schedule.

Did the applicant wilfully mispresent material facts?

30I find the applicant wilfully misrepresented material facts when she described the events leading up to the collision, how the collision happened, and the injuries she sustained. I find the applicant misled the respondent with respect to these details in an attempt to claim statutory accident benefits (“benefits”) from the respondent to which she was not properly entitled.

31Section 53 of the Schedule allows an insurer to terminate the payment of benefits to, or on behalf of an insured person if the insured person has wilfully misrepresented material facts relating to the application for benefits. The insurer needs to provide the insured person with a notice which sets out the reason for the termination.

32I find the forensic engineering reports and the expert witness testimony of Mr. Jennings to be persuasive. This evidence contradicts the applicant’s position. I accept the opinions and conclusions reached by Mr. Jennings as he was able to explain how his conclusions were reached and the explanations which he provided made sense.

33The applicant’s testimony was full of inconsistencies without any explanation for most of the inconsistencies. I find the evidence supports that the applicant intentionally misled the respondent when she described the events leading up to the collision, and how the collision occurred. Therefore, the respondent has proven that the applicant’s material misrepresentation of the facts was wilful.

34I also find the applicant’s misrepresentation was material as she applied for and received benefits on the basis of injuries allegedly sustained as a result of the “accident” which were paid for by the respondent. I find as a result of the applicant wilfully mispresenting material facts when she applied for benefits from the respondent, the respondent is entitled to terminate the payment of statutory accident benefits to the applicant pursuant to s. 53 of the Schedule.

Is the respondent entitled to a repayment of benefits pursuant to s. 52(1)(a) and, if so, what is the quantum?

35I find the respondent is entitled to a repayment of benefits paid to the applicant in the amount of $8,189.25 plus interest in accordance with the Schedule.

36It is noted within s. 52(1)(a) of the Schedule that a person is liable to repay an insurer any benefit which was paid to the person as a result of wilful misrepresentation or fraud. Under s. 52(5), the Schedule notes the insurer may charge interest on the outstanding amount to be repaid for the period starting on the 15th day after the notice is given under s. 52(2) at the bank rate in effect on that date.

37The respondent provided a notice letter to the applicant dated October 30, 2018²⁰ which advised her that her benefits were being terminated pursuant to s. 53 of the Schedule and noted the applicant had wilfully misrepresented material facts when she applied for benefits from the respondent. The letter also requested a repayment of the medical benefits paid for by the respondent in the amount of $8,189.25. On page two of the letter, the respondent noted interest will be charged on the outstanding balance starting on the 15th day after receipt of the notice letter at the bank rate in effect on that date.

38As I have already found the respondent is entitled to terminate benefits pursuant to s. 53 of the Schedule on the basis of the applicant’s wilful misrepresentation of material facts, I find the respondent is entitled to a repayment of the full amount which it paid to the applicant for benefits pursuant to s. 52(1)(a) of the Schedule. The amount of the repayment is $8,189.25 plus interest in accordance with the Schedule.

ORDER

39The applicant was not involved in an accident as defined within s. 3(1) of the Schedule and as a result, is not entitled to any statutory accident benefits.

40The respondent is entitled to terminate the payment of benefits under s. 53 of the Schedule because the applicant wilfully misrepresented material facts with respect to the “accident” and her application for benefits.

41The respondent is entitled to a repayment of benefits paid to the applicant as a result of her wilful misrepresentation or fraud, pursuant to s. 52(1)(a) of the Schedule. The quantum of the repayment is $8,189.25 plus interest in accordance with the Schedule.

42The applicant’s appeal is dismissed.

Footnotes

1. 1Ontario Regulation 34/10
2. 2Exhibit #13 – Termination letter of accident benefits from respondent to applicant, dated October 30, 2018. Respondent’s Document Brief, Volume 3, Tab 11 H
3. 317-000532 v Intact Insurance Company, 2017 CanLII 87155 (ON LAT)
4. 4Exhibit 1 - Respondent’s Document Brief, Volume 2, Tab 7 A1
5. 5The Merriam-Webster Dictionary defines Res Judicata as: a matter finally decided on its merits by a court having competent jurisdiction and not subject to litigation again between the same parties.
6. 6Highway Traffic Act, R.S.O. 1990, c. H.8
7. 7Insurance Act, R.S.O. 1990, c. I.8
8. 8Exhibit 2 - Tab 7 A2, at 4
9. 9Ibid, at 9, 12
10. 10Exhibit 3 – Physiatry IE Assessment Report of Dr. Khan, Respondent’s Document Brief, Volume 9, Tab 33B, at 3
11. 11Ibid, at 7
12. 12Exhibit 5 – EUO transcript of G.E, Respondent’s Document Brief, Volume 1, Tab 3, at 46, question 314
13. 13Ibid, at 56, 57 questions 389-390, and 397
14. 14Exhibit 7 – EUO transcript of S.I., Respondent’s Document Brief, Volume 2, Tab 6, at 27, 33, questions 164, 215
15. 15Supra, note 12, at 65, question 467
16. 16Exhibit 6 – Respondent’s Document Brief, Volume 2, Tab 7 C1, at 10
17. 17Exhibit 12 – Forensic Engineering Reports of William Jennings, dated June 15 and August 13, 2018. Respondent’s Document Brief, Volume 2, Tabs 7 B1 and B3
18. 18Ibid, Forensic Engineering Report of William Jennings, Tab 7 B1 at 21
19. 19Exhibits 8 & 9 – both EUO transcripts of the driver of Ford Fusion and his wife. Respondent’s Document Brief, Volume 1, Tabs 4 & 5
20. 20Supra, note 2