Cahns v. Intact Insurance Company, 2021 CanLII 99825

Cahns v. Intact Insurance Company, 2021 CanLII 99825

Citation: Cahns v. Intact Insurance Company, 2021 ONLAT 19-010591/AABS

Released Date: 10/12/2021

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:

Shermon Cahns Applicant

and

Intact Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: No one appeared

For the Respondent: William Sproull, Counsel

HEARD: by Videoconference: August 11, 2021

REASONS FOR DECISION

OVERVIEW

1This proceeding, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), arises out of a motor vehicle accident (“MVA”) that was reported to have occurred on November 9, 2018. The applicant, Mr. Shermon Cahns, was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefit Service (“Tribunal”).

2The respondent is seeking a determination of preliminary issues of whether Mr. Cahns was involved in an accident and whether he wilfully mispresented material facts when he applied to the respondent for statutory accident benefits. The respondent’s position is that the applicant falsely described circumstances surrounding the incident of November 9, 2018, and therefore is not entitled to the accident benefits that he claims.

3The parties participated in a telephone case conference on February 16, 2021. At that time, the applicant was represented by counsel. On consent, the preliminary issues addressed here were scheduled today. The parties agreed that if the adjudicator finds in favour of the applicant, they will contact the Tribunal to arrange a case conference to address the substantive issues.

4On July 8, 2021, Mr. Cahns’ counsel advised the Tribunal that they no longer represent him. They provided an email address and a mailing address for their ex-client. On July 9, 2021, the Tribunal sent the applicant a confirmation of the preliminary issues hearing scheduled for August 11-13, 2021 and asked for his confirmation of if/how he wanted to proceed (given he was no longer represented by counsel). The respondent served the document brief to this address. The address provided by ex-counsel was the same as that on the LAT application and the same address given by the applicant during his examination under oath (“EUO”) dated December 11, 2020. During the morning of this hearing, the Tribunal attempted to contact the applicant at the email and telephone number on file. As at the start of the hearing, the applicant failed to communicate with the respondent or the Tribunal since being self-represented.

5The applicant did not participate in this hearing and no explanation was provided for his absence. We delayed starting the hearing until approximately 35 minutes after the scheduled start time. The respondent called Ms. Karla Cassidy, Biomechanist & Accident Reconstructionist of Kodsi Engineering, as its witness.

ISSUES IN DISPUTE

6The issues to be decided at this hearing are:

Preliminary Issues

1. Was the collision which occurred on November 9, 2018 an “accident” as defined by s. 3(1) of the Schedule? If yes, then:
2. Is the respondent entitled to terminate the payment of benefits because the applicant willfully misrepresented material facts with respect to the “accident” and his application for benefits under s. 53 of the Schedule?
3. Is the respondent entitled to repayment of benefits totalling $558.65 paid to the applicant as a result of his willful misrepresentation or fraud, pursuant to s. 52(1)(a) of the Schedule?

RESULT

7After reviewing the submissions, I find

1. The applicant was not involved in an “accident” as defined s.3(1) of the Schedule and is therefore not entitled to any statutory accident benefits.
2. The 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 his application for benefits.
3. The respondent is entitled to a repayment of benefits paid to the applicant as a result of his 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

8Section 3(1) of the Schedule defines “accident” as an incident in which the use or operation of an automobile directly causes an impairment. The respondent’s position, relying on 17-000532 v. Intact Insurance Company,¹ is that the burden of proof is on the applicant to prove on a balance of probabilities that he was involved in an accident as defined in s.3(1) of the Schedule. I agree.

9Further, I agree with C.I. v. Certas Direct Insurance Company² that because the respondent has alleged the applicant materially misrepresented the facts, it is the respondent’s onus to prove wilful misrepresentation on a balance of probabilities.

The Accident

10The applicant failed to appear at this videoconference hearing and failed to provide submissions supporting any position regarding these preliminary issues. I relied on the applicant’s account of the accident provided in his examination under oath (“EUO”).³ At paragraph 238 of the transcript, the applicant states that he was about to pass a building, and a car flew out of the driveway of the building, entering his path and the applicant “pretty much t-boned it, or the back half of his car.” At paragraph 247, the applicant surmises the other vehicle was going a little bit too fast for the 50-kilometre-per-hour zone and later, in paragraph 251, that “he was travelling at a speed around 45 – 50 kilometres per hour.” The applicant testified at the EUO he was wearing a seatbelt and the airbags did not go off.

11The applicant’s passenger, Chanel Brown, gave an account of the accident and events leading up to same in another examination under oath (“EUO”).⁴ At paragraph 133, Ms. Brown describes the accident as, “it was raining, they were coming down a street and a vehicle just basically came out of a driveway, he didn’t stop or even look.” Later in the EUO, she states “it was a car, dark coloured and the airbags went off on collision.” Throughout the EUO, Ms. Brown was inconsistent as to whether she saw the vehicle they hit as stopped and then sped out in front of them, or it just came speeding out into the street. She did, however, say that there were two male passengers in the vehicle they collided with, and she saw them exit the vehicle as the paramedics were attending to her.

12The respondent called Ms. Karla Cassidy to speak to the Kodsi Engineering reports dated February 1, 2019⁵ and March 12, 2019.⁶ These reports analyzed damage to both vehicles involved in the subject MVA.

13Ms. Cassidy spoke to the findings in the Kodsi reports. The reports included an analysis of the applicant’s vehicle, a 2013 black Honda Civic (“subject vehicle”) and of the vehicle the applicant claims to have hit, a silver 2017 Infiniti Q50 (“2nd vehicle). The analysis of the damage to each vehicle was based on photographs, damage estimates for repair, and the Motor Vehicle Collision Report,⁷ completed by a police officer on site, dated November 9, 2018. This collision report states that there were two passengers in each vehicle.

14The 2nd vehicle was first analyzed. It was noted this vehicle sustained damage primarily to the left rear corner. The data from the 2nd vehicle’s Airbag Control Unit (“ACU”) (also known as the vehicle’s “black box”) was downloaded and the information was stored as a Crash Data Retrieval (“CDR”) report (attached to the February Kodsi report). Ms. Cassidy summarized the results of the ACU information:

a. The driver’s side and front passenger’s side seatbelts were fastened, but b. The front passenger’s side seat was vacant at the time of the collision c. The vehicle was in park five seconds before it was hit (and possibly while it was hit) d. No acceleration pedal or brake pedal was applied just prior to contact with the other vehicle e. The damage on the 2nd vehicle was consistent with damages that would be incurred while the vehicle was parked.

15In the subsequent Kodsi Engineering report, Ms. Cassidy and Shady Atalla⁸ completed a further investigation, this time to analyze the subject vehicle and compare and contrast the damage with respect to the sequence of events reported by the applicant. By the time of this analysis, the subject vehicle had been repaired. The data from the vehicle’s Supplemental Restraint System (“SRS”) (also known as the black box) was downloaded and the information was stored as a Crash Data Retrieval (“CDR”) report (attached to the Kodsi report). Ms. Cassidy summarized the results of the SRS information:

a. There were no events stored in the SRS, which means there was no impact severe enough to record, and the air bag(s) did not deploy,

16Ms. Cassidy surmises that the damage on each vehicle was generally consistent with a rear perpendicular impact between them and, in general, heights and severity of damage on each appeared to match between the vehicles. This was based on a comparison of the height, length and depth of dents/scratches. However, following a computer reconstruction using the information of both black boxes and matching the physical damage on each vehicle, the 2nd vehicle would be parked and the subject vehicle was most likely travelling approximately 25 – 29 kilometers per hour and the vehicles would be perpendicular to each other to have sustained the damage on each vehicle. The reports indicate the damage to both vehicles did not occur through an accident as reported by the applicant or his passenger.

Inconsistent Statements

Events leading up to the accident

17Through the EUO, the applicant reports to have not been working because he was off on paternity leave. On his OCF-1 (Application for Accident Benefits), the applicant reports to be employed and that he is the caregiver for a young daughter. The applicant reports to an IE assessor on May 21, 2019⁹ that was employed full-time as a Fiber Optic Technician at the time of the MVA.

18Through the EUO of both the applicant and his passenger Ms. Brown, when asked where they were headed at the time of the MVA, their accounts differ. The applicant states they were going to buy groceries but did not make it to the grocery store because Ms. Brown wanted to stop by a friend. He could not respond to whether or not they went to the friend’s place. Ms. Brown states they were going to pick up their daughter from her mother’s house, but first made a stop at a grocery store. She adds the store was closed.

The accident

19From statements included in the EUO of both the applicant and his passenger Ms. Brown, the accident occurred with a 2nd vehicle driving out quickly in front of them, causing the applicant to T-bone or hit the back end of the 2nd vehicle. The applicant believes the 2nd vehicle was travelling faster than the designated 50 km/hour speed limit while he was travelling at or below the speed limit.

20These statements are inconsistent with other evidence before me, namely:

a. The Motor Vehicle Collision report taken at the alleged accident scene states the 2nd vehicle was travelling at a speed of 30 km/h and the subject vehicle was travelling at a speed of 50 km/h. b. The engineering report commissioned by the respondent concludes the 2nd vehicle was parked when it was struck and that the subject vehicle’s black box didn’t register an impact. It also concluded that the damage to the vehicles would mean the subject car was travelling at less than 30 km/h and it did not T-bone the other car as the applicant reported.

21Through the EUO of both the applicant and his passenger Ms. Brown, there was more than one passenger in the 2nd vehicle. The engineering report commissioned by the respondent concludes there was no person on the front passenger side at the time of the collision.

22I find the engineering reports and the testimony of Ms. Cassidy to be persuasive. This evidence contradicts the applicant’s position. I accept the opinions and conclusions reached by Ms. Cassidy as she was able to explain how each conclusion was reached and the explanations seemed logical. The applicant’s statements related to the accident are unreliable given the contradictions in both his and his passenger’s recollections. I find on a balance of probabilities that the subject MVA was a staged accident and is therefore not an accident under s.3(1) of the Schedule.

Injuries sustained in the accident (by the applicant)

23The applicant did not go to the hospital following the MVA, but his passenger Ms. Brown did. On an OCF-1 signed by the applicant and dated December 3, 2018, the applicant reports to having sustained “serious injuries” in the MVA. He reported to two IE assessors that he was unable to return to work after the MVA because of his injuries. In his EUO statement, the applicant claims he did not have a family physician prior to the accident, and he sought one after the accident and was then prescribed painkillers. He tells of being recommended to a specialist, but initially could not recall for what and or if it is accident related. Later, he states that the specialist was in fact for a foot fungus and unrelated to the MVA. He then states that Dr. Skih, now his family doctor, told him that it was soft tissue injury that he sustained from this MVA.

24The Functional Capacity Report of Dennis Polygenis¹⁰ concludes the applicant has the ability to satisfy the load requirements of his pre-accident vocation. The Independent Medical Report of Dr. Maria Nesterenko, GP¹¹ concludes the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

25While the applicant has claimed to have sustained “serious injuries” as a result of the MVA, the applicant has failed to provide any evidence of what injuries he has sustained and if and how they are a result of this reported MVA.

Did the applicant wilfully misrepresent material facts?

26From the evidence available, I find the applicant wilfully misrepresented material facts when he described the events leading up to the MVA, how the collision happened, the injuries he sustained because of the inconsistent statements, and the lack of medical evidence to support his reported injuries, compared with the convincing Kodsi engineering reports. I believe the purpose of the applicant’s misrepresentation was to receive benefits from the insurer to which he was not properly entitled.

27Section 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 termination. The insurer sent the applicant a registered letter¹² proving their determination to terminate benefits in accordance with the requirements in s. 52(3). This explanation included why the insurer is terminating payment of benefits and a request for reimbursement of all monies paid to him as benefits.

28It 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 persons 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. I find the respondent is entitled to a repayment of benefits paid to the applicant in the amount of $558.55¹³ plus interest in accordance with the Schedule.

CONCLUSION

29The 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.

30The 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 his application for benefits.

31The respondent is entitled to a repayment of benefits paid to the applicant as a result of his wilful misrepresentation or fraud, pursuant to s. 52(1)(a) of the Schedule. The quantum of the repayment is $558.55 plus interest in accordance with the Schedule.

32The applicant’s application is dismissed.

Footnotes

1. 117-000532 vs Intact Insurance Company, 2017 CanLII 87155 (ON LAT)
2. 219-000637 vs Certas Direct Insurance Company, 2020 CanLII 12723 (ON LAT)
3. 3Exhibit 1, tab 7: EUO transcript of Shermon Cahns, dated December 11, 2020
4. 4Exhibit 1 - Tab 8: EUO transcript of Chanel Brown, dated June 18, 2019
5. 5Exhibit 1 – Tab 3: Kodsi Engineering, dated February 1, 2019
6. 6Exhibit 1 – Tab 4: Kodsi Engineering, dated March 12, 2019
7. 7Exhibit 1 – Tab 1: Police report, dated November 9, 2018
8. 8Mr. Atalla is a registered Consulting Professional Engineer in Ontario and holds a Bachelor of Engineering (Materials Science) from McMaster University.
9. 9Independent Functional Capacity Evaluation Report of Dennis Polygenis, Physiotherapist
10. 10Exhibit 1 – Tab 9: Independent Functional Capacity Evaluation Report of Dennis Polygenis, dated May 21, 2019
11. 11Exhibit 1 – Tab 10: Independent Medical Report of Dr. Maria Nesterenko, GP dated July 24, 2019
12. 12Exhibit 1 – Tab 6: Letter from Intact Insurance denying claim, dated February 12, 2021
13. 13Original submissions sought repayment of $658.30. This amount has been corrected to $558.55 ($99.75 should have been designated to Ms. Brown)```