Citation: Aviva General Insurance v. Mehdi Najmialdin, 2021 ONLAT 20-001336/AABS

Release date 04/26/2021

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 Applicant

and

Mehdi Najmialdin Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Amanda Fowler, Counsel

For the Respondent: Mehdi Najmialdin, Self-Represented

Court Reporter: Queenie Tsui

HEARD by Videoconference: November 26, 2020

OVERVIEW

1Mehdi Najmialdin, the respondent in this proceeding, alleges he was involved in an accident on January 11, 2019 and sought various accident benefits from the applicant, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2One of the benefits claimed by Mehdi Najmialdin was an income replacement benefit (“IRB”). Based on the information provided to Aviva, M.E. was paid IRBs in the amount of $400.00 per week for the period of January 21, 2019 to July 17, 2019. Aviva claims repayment of the sum of $22,647.59 in IRBs and medical benefits paid as a result of Mehdi Najmialdin’s wilful misrepresentation that he was involved in an accident.

ISSUES

3The issue in dispute is as follows:

a. Is Aviva entitled to a repayment of IRBs and medical benefits in the amount of $22,677.59, with interest, as a result of its overpayment?

FINDING

4Aviva is entitled to repayment pursuant to s. 52 of the Schedule, plus applicable interest.

BACKGROUND

5On January 11, 2019, Mehdi Najmialdin was allegedly injured in an accident. He applied for and received accident benefits from Aviva.

6The issue of repayment stems from surveillance evidence conducted on Mehdi Najmialdin and a resulting report and video. In the video, Mehdi Najmialdin is seen attending his place of employment, Coin Nerds, on several occasions. According to Mehdi Najmialdin, he was employed full-time working over 40 hours per week as the manager of Coin Nerds. During the surveillance, Mehdi Najmialdin is seen moving and lifting boxes and furniture into a moving van. He is also seen assisting customers and attending his place of employment on a regular basis.

7Aviva requested a copy of the police report for the reported January 11, 2019 accident. After a review of the police report, Aviva noted that Mehdi Najmialdin was not listed as an occupant of any vehicle involved in the accident. Aviva contacted the responding officer who confirmed that both drivers involved stated they were the lone occupants. Aviva’s position is that Mehdi Najmialdin was not involved in the accident and therefore requests a repayment of all benefits paid to date. Aviva further posits that Mehdi Najmialdin has willfully misrepresented facts and is not eligible to receive accident benefits.

ANALYSIS

Sections 7, 52, and 53

8Section 7(3)(a) provides that the insurer may deduct 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an IRB.

9Section 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.

10Section 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.

11Aviva has the burden of proving that the IRB was paid as a result of an error, wilful misrepresentation or fraud on a balance of probabilities. On the evidence, I find that the overpayment of IRBs and medical benefits was made in error as M.E. wilfully misrepresented that he was involved in the January 11, 2019 accident. Further, the evidence supports that Aviva meets all of the requirements under s. 52 to justify repayment.

12In response, Mehdi Najmialdin submits that he was involved in the accident, was unable to work, and is therefore entitled to accident benefits.

13Mehdi Najmialdin indicated that he would be calling two witnesses: the driver, Rameez Haq; and his wife, Hanna Haq. However, at the hearing, Mehdi Najmialdin declined to call either witness and relied solely on his own testimony. On the other hand, Aviva relied on the statements made by Constable Giglia and the other driver, Vladimir Gotin. I am persuaded by the evidence provided by Constable Giglia and Mr. Gotin for the reasons below.

Constable Giglia’s evidence

14Constable Giglia testified that when he arrived at the scene of the accident, he observed two drivers at the scene, Mr. Haq and Mr. Gotin. Statements were obtained from the two drivers. Constable Giglia stated that no other independent witnesses made themselves known to him to provide details about the accident. Although Constable Giglia was unsure if Mr. Haq was asked about any passengers in his vehicle, on the Motor Vehicle Accident Report, it was indicated that the number of occupants in Mr. Haq’s vehicle was one.

Vladimir Gotin’s evidence

15Mr. Gotin testified that he was the driver at fault in the accident. His evidence was that he saw the driver but did not see any passengers. Mr. Gotin further testified that he did not see anyone exit the vehicle and that he only saw the driver outside the vehicle.

16Mehdi Najmialdin submitted that he called a taxi after the accident, but he failed to produce any cell phone records to support his claim that he called a taxi on the day of the accident and left the scene. There are no medical records that confirm the injuries he claims to have suffered as a result of the accident. He also failed to produce any employment or bank records to show that he did not make any income during the period he claimed to be unable to work. The surveillance evidence contradicts Mehdi Najmialdin’s claim that he was not able to do heavy lifting or work. In the surveillance evidence videos dated June 18, 26, 27 and July 8, 2019, Mehdi Najmialdin is observed at his place of employment, Coin Nerds, loading boxes and furniture on to a moving truck. Mehdi Najmialdin is also observed at a different Coin Nerds location soliciting customers outside the store, which contradicts his statements made at the Examination Under Oath that he was unable to work or lift heavy items.

17On the evidence, I find that Mehdi Najmialdin has not established that he was involved in the accident. Even if Mehdi Najmialdin had established he was in the accident, I agree with Aviva that Mehdi Najmialdin’s failure to produce documentation requested under s. 33 to support his claim of entitlement to IRBs and the contradictory evidence given in his EUO statements and testimony is confirmation that Mehdi Najmialdin continued to work for Coin Nerds during the alleged post-accident period. The Tribunal therefore draws an adverse inference against Mehdi Najmialdin for his failure to provide any corroborative evidence to establish that he was involved in an accident, or that he was not able to work as a result of his accident-related injuries. Pursuant to s. 52(1)(a), a person is liable to repay the insurer any benefit that is paid to the person as a result of wilful misrepresentation or fraud, provided proper notice is given.

Aviva’s repayment notices

18On the evidence, I find that Aviva complied with all of its obligations under the Schedule and acted diligently when it was made aware of Mehdi Najmialdin’s return to work. Aviva’s notice of request for repayment was provided within the designated time period. Aviva first issued payment of IRBs on January 21, 2019. It subsequently provided notice to Mehdi Najmialdin of its intention to seek repayment of benefits on November 7, 2019, which is within the 12-month period to provide notice as set out in s. 52(3).

19The notice sent to Mehdi Najmialdin meets the criteria prescribed in s. 52(2), as it states the type of benefits paid as a result of a benefit being paid that Mehdi Najmialdin is disqualified to receive (i.e. wilful misrepresentation). Further, although the payment period is not specifically set out in the notice, it requests repayment of all payments made to date. In addition, the notice sets out the amount of repayment sought ($22,677.59, being the amount in dispute). Lastly, the notice indicated that Aviva was seeking interest, which is allowable under s. 52(5) for the period starting on the 15th day the notice is given and ending on the day repayment is received in full. Interest is calculated at the bank rate in effect on the 15th day after the notice is given. For these reasons, I find Aviva’s notice complied with all the requirements for a s. 52 repayment request. Due to Mehdi Najmialdin’s wilful misrepresentation of his involvement in the accident, I find the entire period of repayment is justified.

COSTS

20Aviva claimed costs and argued that Mehdi Najmialdin’s actions meet the test for costs. Under Rule 19 of the Tribunal’s Common Rules, costs may be awarded where a party has acted frivolously, vexatiously or in bad faith, and to deter conduct that threatens the orderly and civil resolution of an application. I disagree that Mehdi Najmialdin’s actions during this proceeding meet the threshold for costs. While Mehdi Najmialdin did wilfully misrepresent his claim, I do not find that his actions had any bearing on the orderly and civil resolution of the matter.

21As such, I decline to order costs against Mehdi Najmialdin

ORDER

22Aviva is entitled to a repayment in the amount of $22,677.59, plus applicable interest starting on the 15th day after the notice was given and ending on the day repayment is received in full, pursuant to s. 52, as a result of its overpayment of IRBs and medical benefits paid to Mehdi Najmialdin

23Aviva is not entitled to costs.