Sonnet Insurance Company v. Mitchell, 2021 CanLII 108361

Sonnet Insurance Company v. Mitchell

Citation: Sonnet Insurance Company v. Mitchell, 2021 ONLAT 20-006073/AABS

Licence Appeal Tribunal File Number: 20-006073/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:

Sonnet Insurance Company

Applicant

and

Jennifer Mitchell

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Sonnet Insurance Company, Applicant

Monika Bolejszo, Counsel

For the Respondent:

Jennifer Mitchell, Self-Represented

HEARD: In Writing

BACKGROUND

1The respondent, Jennifer Mitchell, claimed that she was involved in an automobile accident on July 9, 2019, and sought benefits, including an income replacement benefit (“IRB”) from the applicant, Sonnet, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). In good faith, Sonnet began payment of the IRB and medical benefits.

2However, on receipt of various medical records and after conducting an Examination Under Oath (“EUO”), Sonnet determined that the respondent was not involved in an accident as she had originally stated in her application. Rather, Sonnet determined that the respondent had sustained injuries as a result of falling down a flight of stairs. As a result, Sonnet sought repayment of the IRB and the benefits paid due to the respondent’s wilful misrepresentation and applied to the Tribunal for same.

3The respondent failed to attend several properly scheduled case conferences, has not responded to Sonnet or the Tribunal’s correspondence and did not file submissions for this written hearing.

ISSUES

4The issues in dispute are as follows:

Is Sonnet entitled to a repayment of benefits in the amount of $17,830.30, of which $12,057.14 is for repayment of an IRB for the period from July 9, 2019 to May 25, 2019; and $5,773.16 is for repayment of medical benefits submitted July 9, 2019 and denied March 4, 2020, as follows:

a. $495.25 after pre-approval of an OCF-18 recommended by Body on Balance Physio dated August 16, 2019 in the amount of $1,792.00;

b. $798.00 after pre-approval of an OCF-18 recommended by Body on Balance Physio dated August 16, 2019 in the amount of $1,792.00;

c. $498.75 after pre-approval of an OCF-18 recommended by Body n Balance Physio dated August 16, 2019 in the amount of $1,792.00;

d. $140.00 after pre-approval of an OCF-18 dated October 7, 2019 in the amount of $1,267.00 recommended by Balance Physio and Wellness;

e. $698.25 after pre-approval of an OCF-18 dated October 7, 2019 in the amount of $1,267.00 recommended by Body n Balance Physio & Wellness;

f. $2,200.00 for chiropractic services for an OCF-21 dated January 15, 2020 from Beach Chiropractic and Wellness Centre and pre-approved OCF-23 dated August 2, 2019;

g. $399.00 after pre-approval of an OCF-18 dated October 7, 2019 in the amount of $1,267.00 recommended by Body in Balance Physio and Wellness;

h. $283.91 after partial approval of an OCF-6 dated August 14, 2018 for various medical expenses;

i. $260 for approval of 20 yoga class passes.

Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Pursuant to s. 52, Sonnet is entitled to repayment for the IRB and all of the medical benefits and expenses paid in the amount of $17,830.30, plus interest, as a result of the respondent’s misrepresentation.

ANALYSIS

Section 52

6Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer,” the insured person or any other person, or as a result of wilful misrepresentation or fraud. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

7I find that Sonnet has demonstrated that it paid IRB and various medical benefits and expenses to the respondent as a result of the respondent’s wilful misrepresentation or fraud.

The “accident”

8In her OCF-1 application to Sonnet, the respondent indicated that she was involved in an accident on July 9, 2019 when the vehicle she was riding in was T-boned at an unidentified intersection on Spadina Avenue in Toronto. She maintained that she did not know the driver of the vehicle, the type of vehicle she was riding in or the other occupants of the vehicle, as she was intoxicated and had only just met them at a restaurant. She attended at family physician Dr. Monte’s office as a brand-new patient on July 26, 2019 and indicated that she was involved in an accident on July 8, 2019. She reported to Dr. Monte that the driver of the other vehicle hit the vehicle she was riding in and fled and that the driver of the vehicle the respondent was in took off on foot, leaving the respondent alone in the vehicle in the middle of the road.

9Notably, while the accident purportedly occurred in downtown Toronto, the respondent attended at Trillium Hospital in Mississauga on July 9, 2019—some 22 kilometres away from the alleged scene on Spadina Avenue in Toronto. The clinical notes from Trillium actually state that the respondent had reported tripping and falling down a set of concrete stairs, while intoxicated, and had fractured her pelvis and sustained other injuries to her right side. On July 10, 2019, the respondent saw Dr. Cheah at Trillium’s fracture clinic and again reported that she fell, resulting in a fractured pelvis.

10Suffice to say, Sonnet did not have these damning medical records from the July 9, 2019 fall at the outset of the respondent’s claim, when it agreed to begin payment of the IRB and fund the medical benefits on a good faith basis, given what the respondent had reported on her OCF-1 and OCF-3 documents.

11Sonnet then requested the records from Trillium and Dr. Monte on January 9, 2020 pursuant to s. 33 of the Schedule. On receipt, Sonnet realized that the respondent’s injuries were the result of a drunken fall and not because of a motor vehicle accident for which there was no record whatsoever. Sonnet scheduled an EUO for February 19, 2020.

12At the EUO, the respondent testified that on July 9, 2019 she left a birthday party to go to a house party. She did not know the two other people in the vehicle. She did not attempt to find out the names of the two people who were in the vehicle. She did not know what type of vehicle she was in or what colour it was. While she recalled that the purported T-bone accident occurred on Spadina Avenue, she stated that neither police, fire nor an ambulance attended the scene. The respondent testified that she did not know how she got to Trillium Hospital or why she was taken to a hospital 22 kilometres away for medical attention. She did not know what happened to the driver of the vehicle she was in or the driver of the other vehicle and purportedly never attempted to identify either of them, despite her claim that they both fled the scene. The respondent testified that she told the Hospital and EMS that she fell down a set of stairs because she was drunk and because she did not want to get anyone in trouble or get the police involved because the accident was never reported.

13Following the EUO, Sonnet sent the respondent a letter dated March 4, 2020 requesting repayment in the amount of $12,057.14 for IRBs and $5,773.16 for medical benefits, pursuant to s. 52 and 53 of the Schedule. The letter states that there is no evidence to verify that the use of operation of a motor vehicle caused any impairment or any documentation confirming that an accident took place. The letter states that the respondent intentionally and wilfully materially misrepresented her claim. Sonnet has yet to receive a response from the respondent.

The respondent committed wilful misrepresentation or fraud

14The Tribunal has defined wilful misrepresentation as “any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” Further, the Tribunal has held that “silence or a failure to report” can constitute wilful misrepresentation.¹ Section 52(1)(a) provides that a person is liable to repay an insurer any benefit that is paid to the person as a result of an error, wilful misrepresentation or fraud.

15On the evidence, I find it clear that the respondent’s injuries were caused by a fall down a set of stairs and not because of an accident that occurred on July 9, 2019. I find that the respondent misrepresented the cause of her impairments in her claim documentation filed for the purpose of her accident benefits claim and that Sonnet relied on those fraudulent statements when it began paying benefits in good faith. The respondent’s testimony at the EUO defies logic and her own reporting in the medical documentation. To date, the respondent has been unable to provide evidence of the purported accident despite requests from Sonnet. The respondent’s refusal to respond to Sonnet’s communications or participate in Tribunal proceedings further undermines her credibility, leading the Tribunal to draw an adverse inference. The respondent has provided no evidence to suggest that Sonnet’s theory of the case is inaccurate or that her impairments were caused by a motor vehicle accident.

16The notice letter dated March 4, 2020 satisfies all of the requirements for a repayment claim, as it describes the reason for the repayment, the amounts to be repaid, the relevant sections of the Schedule and the benefits at issue. The notice was provided within 12 months of the period to be repaid and the respondent was provided with the appropriate dispute resolution information. Accordingly, pursuant to s. 52, Sonnet is entitled to repayment in the amount $17,830.30 for IRB and medical benefits paid to the respondent as a result of the respondent’s wilful misrepresentation or fraud.

17Sonnet also seeks interest on repayment. Sections 52(5) and (6) provide guidance on when an insurer may recover interest on repayment. Sonnet may charge interest on the outstanding balance of the amount to be repaid for the period starting on the 15th day after the notice is given and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice is given. Accordingly, as I find Sonnet is entitled to repayment because of misrepresentation or fraud under s. 52, it follows that it may seek interest on overdue amounts under s. 52(5).

ORDER

18Sonnet is entitled to repayment in the amount $17,830.30, plus interest, for IRB and medical benefits paid to the respondent as a result of the respondent’s wilful misrepresentation or fraud.

Footnotes

1. 1Unifund v. MDC, 2020 CanLII 94799 (ON LAT).