Citation: Pope v. TD General Insurance Company, 2022 ONLAT 21-000593/AABS

Licence Appeal Tribunal File Number: 21-000593/AABS

In the matters of Applications pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Akeem Pope

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice-Chair

APPEARANCES:

For the Applicant:

Akeem Pope, Self-Represented (Did not appear)

For the Respondent:

Matthew Wasserman, Counsel

Court Reporter:

Prashanth Thambipillia, Network Reporting

HEARD:

By videoconference on March 16, 2022

BACKGROUND

1On December 27, 2018, the respondent (“A.P.”) was a driving a vehicle, with Destiny Homanchuk (“D.H.”) as a passenger, when they were involved in an automobile accident. A.P. sought and received insurance benefits from the applicant (“TD”) pursuant to the Schedule.¹ This application arises out of TD’s allegation that A.P., D.H., and Maxine Dawkins (“Dawkins”) misrepresented that Dawkins was also in the vehicle, although she was not. D.H. and Dawkins also received benefits from TD and are the subject of related applications at the Tribunal.

2TD notified A.P. that on the grounds that he made willful misrepresentations it was seeking repayment from him of the benefits paid to him and certain expenses incurred by TD in processing the claim. A.P. applied to this Tribunal seeking an order that he is not required to repay the benefits or expenses claimed by TD.² A.P. did not appear for this hearing, nor did D.H. appear for her related hearing held back-to-back to this one. After considering the evidence, I find that TD established A.P. made wilful misrepresentations, but under the Schedule’s specific provisions, TD is not entitled to a repayment from A.P. of his benefits.

ISSUES³

3The issues to be decided are:

1. Is A.P. liable to repay TD $3,500.00?

2. Has A.P. committed a material misrepresentation pursuant to s. 53 of the Schedule?

3. Is TD entitled to interest on any overdue re-payment of benefits?

ResULT

4TD has established that A.P. made a willful misrepresentation to TD (Issue 2), but the Schedule does not grant the Tribunal authority to order A.P. to repay the benefits, because the payments “paid to the person” - i.e., A.P. - were not “as a result of willful misrepresentation” (Issue 1). Thus, no interest is due (Issue 3).

ANALYSIS

Can the Tribunal proceed in this matter in absence of A.P.?

5Yes. S. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22, provides that a tribunal may proceed in a party’s absence if notice of the hearing was given. I am satisfied that A.P. had ample notice of the hearing and chose not to appear. For instance:

a. A.P. was present at his first June 30, 2021 case conference, when this hearing was scheduled. The Tribunal provided a copy of case conference order by email to his counsel.

b. On September 15, 2021, shortly after the case conference, A.P.’s counsel withdrew representation. Since that time, A.P. has not participated in this matter in any way. For instance, he did not attend a September 24, 2021 case conference or a January 10, 2022 motion hearing, or file any responding motion materials in advance of either event. Likewise, despite the Tribunal’s various letters to him, the Tribunal has no record of any contact from him, record of mail not received, or record of him updating his contact information which the Tribunal’s Rules⁴ require him to do if he moved.

c. Since his counsel withdrew, TD also made numerous attempts to contact A.P. regarding this Tribunal proceeding and the underlying claim but has received no response.

d. The Tribunal’s records also show TD filed numerous certificates of service documenting both email and mail service of motion materials and document books. TD’s counsel advised its legal department has utilized skip tracing and surveillance without success to locate him.

e. A.P. was summoned to the related Dawkins hearing (see below),⁵ arising out of this same accident, but did not appear for that hearing.

f. The Tribunal emailed A.P. a Notice of Hearing on January 21, 2022, and the link to the videoconference hearing room on March 11, 2022. Yet, A.P. has not filed any documents, such as document books and a witness list, with the Tribunal prior to the hearing, to be used at the hearing.

g. After A.P. did not appear at the hearing, the Tribunal made two attempts to contact him by phone and also an attempt by email.

6In summary, I am satisfied that A.P. was properly notified of this hearing, but that he had no intention to participate.

Did A.P. make a willful misrepresentation?

7Yes. The case conference order refers to s. 53 of Schedule, which deals with termination of benefits, while repayment identified in issue 1 is governed by s. 52. Both s. 52 and 53 provide the same “willful misrepresentation” wording.

8Section 53 provides an insurer may terminate “benefits to or on behalf of an insured person…if the insured person has wilfully misrepresented material facts with respect to the application for the benefit” and the insurer provides notice (emphasis added). Section 52(1)(a) provides:

“…a person is liable to repay to the Insurer, (a) any benefit described in this Regulation 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;…” (emphasis added)

9A misrepresentation is “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”, and willful is “a deliberate or intentional action”.⁶

10TD submits the evidence shows that at the time of the accident, A.P. drove the vehicle, with the passenger seat empty, while D.H. sat in the back middle seat with her two children on each side of her. Despite no one else being in the vehicle, Dawkins, a friend of A.P., falsely claimed that she was in the car and applied for and received benefits. As the three claims unfolded, TD examined A.P., D.H. and Dawkins under oath, and during each of those examinations, each provided wilful misrepresentations that Dawkins was in the car. As discussed below, I find the evidence strongly supports TD’s account.

11As a threshold point, TD submits that my analysis must begin by accepting that Dawkins was not in the vehicle, based on Tribunal’s finding in a related case involving Dawkins, i.e., Dawkins v. TD⁷. I disagree because that matter did not involve “the same parties or their privies”⁸. Also, in Dawkins, Dawkins had the burden to prove she was in the vehicle, while in this matter, TD has the burden to lead prima facie evidence that Dawkins was not in the vehicle.

12Nevertheless, I accept TD’s alternate submission that the Dawkins case is persuasive. First, the rule against applying a finding in one case against different parties in a different case, assumes that the parties in the second case will present different evidence. Yet, A.P. did not present any evidence, argument or defence, while TD relied on the same police reports, witness statements, and transcripts from the examinations of A.P., D.H. and Dawkins, that underpin the Dawkins decision, so that the two matters are near-identical.⁹ Second, TD served its document book containing the Dawkins decision on A.P., yet A.P. did not object, creating an inference of acceptance. Third, in Dawkins, TD also relied on the same written statement of the independent witness being used in this matter, but in Dawkins the same witness also testified and was tested under cross-examination. Fourth, as noted above, A.P. was summoned to give his testimony in the Dawkins hearing but choose not to participate in that hearing. Fifth, after having independently reviewed the nearly same evidence, I reached the same factual conclusions as the adjudicator did in the Dawkins decision.

13While I accept the Dawkins decision as persuasive as mentioned above, in any event, the evidence independently leads me to the same result. At multiple points during his examination under oath, A.P. explicitly identified Dawkins as being in the vehicle.¹⁰ However, that is clearly false – Dawkins was not in the vehicle for the reasons below. For context, I note D.H. and Dawkins also made the same misrepresentation during their examinations.

14First, the Motor Vehicle Collision Report, prepared by Officer Thomas, does not list Dawkins as involved in the accident, and only lists A.P., D.H., and D.H.’s two children in the vehicle. Officer Thomas’ notes corroborate his formal report.

15Second, the driver of one of the other two vehicles, provided a written statement.¹¹ She also recalls there being a male driver of the Kia (A.P.), and no one in the passenger seat. As she did not leave her vehicle until taken by ambulance, she was not sure who was in the back. Her husband attended the scene shortly after, and he similarly recalls that there was a woman and two children – the children being in the tow-truck – but no 5th passenger.

16Third, Dawkins’ account of the accident and immediate aftermath is at odds with facts not in dispute. For instance, she describes¹² their vehicle making a left turn when it was going straight; not recalling where the alleged grocery store was until later saying in the Albion Mall; claims her blood pressure was taken by a paramedic in the ambulance and having spoken to the police officer for five minutes – despite there being no such record and A.P. and D.H. both saying Dawkins left without speaking to the police; the children being with her while their mother (D.H.) was being treated and that she left the scene with the children – but (1) the children were variously with A.P., D.H. or in the tow truck, until they left with A.P., and (2) both A.P. and D.H. state that Dawkins left the scene alone.¹³

17Fourth, the three provided different accounts of where they were going – ranging from (1) Dawkins’ testimony of grocery shopping and picking up West Indian take-out food at Tropical Joe’s in the Albion Mall, (2) to A.P.’s testimony of a trip only for takeout which was at a different restaurant near “Woodbine tracks,”¹⁴ (3) to D.H.’s version of going for takeout only for Dawkins, and at a “mall somewhere in Rexdale” at a Caribbean restaurant, who’s name she could not recall.

18When the above contradictions are taken together, I find that TD has put forward more than a prima facie case, but rather an overwhelming case that A.P. misrepresented that Dawkins was in the vehicle, when clearly she was not. Given the nature of representation is so clearly false – i.e., someone was in the vehicle when they were not – it is not something that can be accidental. I find the misrepresentation was also intentional and wilful. My conclusion is also buttressed by the fact that A.P. did not appear for this hearing.

Do the willful misrepresentations require A.P. to repay his benefits under s. 52 or 53 the Schedule?

19No. The Schedule’s termination and prepayment provisions are very specific to the situations in which they apply, and my jurisdiction is limited to applying those clauses as they appear in the Schedule. In general terms, these sections provide that the misrepresentation must relate to the benefits to be repaid. In the words of s. 52, “…a person is liable to repay the Insurer…any benefit…that is paid to the person…as a result of wilful misrepresentation or fraud.” (Emphasis added)

20TD has not led evidence that A.P. received his own benefits “as a result of” his misrepresentations – rather Dawkins may have benefited. Thus, the s. 52 and s. 53 provisions would apply to Dawkin’s benefits. But as for A.P., he was involved in the accident and appears to have received the appropriate benefits.

21TD nevertheless submits its an absurd interpretation to conclude that A.P. could keep his benefits in this situation, and points to several cases to interpret those clauses in section 52 and 53 more broadly. The thrust of TD’s argument is that caselaw establishes that material misrepresentations go to the totality of the “claim” – with the claim being all claims arising from the accident. I disagree as s. 52 does not read that if A or B are truthful about their own claim, but misrepresent facts that help C obtain benefits, then A and B are disentitled to all benefits – which is what TD is arguing in this case. Again, s. 52 and 53 include the words, “as a result of”. TD has not established the “as a result of”. In other words, A.P. did not receive his benefits as a result of a wilful misrepresentation or fraud.

22In support, TD relies on a quote from a FSCO discission¹⁵: “Even if one interprets the repayment provisions narrowly and limits each incident of misrepresentation to a corresponding, directly related benefit, even then I would find that Mr. Hassan is exposed to a complete repayment since the misrepresentations surrounding the accident goes to the foundation of the entire claim.” In other words, in that case, the misrepresentation “resulted” in every benefit subsequently received.

23However, that case is analogous to repayment claim against Dawkins as it deals with a person that misrepresented that he was in the accident when he was not. A.P.’s situation is different as neither his own nor D.H.’s misrepresentations “resulted” in his benefits. Second, the FSCO case involved an earlier version of the Schedule which contains somewhat broader repayment previsions (“with respect to the application for the benefit”).

24TD also relies on a quote from this Tribunal: “…insurers and their insureds owe each other a duty of good faith. The duty on an insured person is to disclose information that would materially affect the amount of policy premiums or the payment of claims.”¹⁶ TD submits that “claim” must mean the entire claim at TD relating to the accident. However, the quote was discussing a repayment claim from the individual who received an income replacement benefit based on that individual’s own misrepresentation about their pre-accident benefits. In other words, it met the Schedule’s requirement of “as a result of”. As for the Tribunal’s comment about policy premiums, A.P.’s misrepresentations aren’t something that would retroactively affect policy premiums as its not a material misrepresentation that resulted in a change of risk material to the policy.¹⁷

25While I find that s. 52 and s. 53 of the Schedule do not provide me with the jurisdiction to order the repayment, I do not agree, as TD implies, that A.P.’s misrepresentations are without consequence or a finding against repayment in this case invites fraudulent claims in future cases. For any future claims in this matter that can not be objectively proven, A.P.’s credibility will certainly be at issue and effect such claims. As well, A.P. may be liable for proceedings outside the Tribunal’s jurisdiction for making false statements on Dawkins’ claim.

ORDER

26Although I find A.P. made wilful misrepresentations, those misrepresentations do not trigger the termination or repayment clauses under sections 52 and 53, and thus the Tribunal lacks authority to order the termination of his claim for this accident or to repay the benefits as TD claims ought to be done.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 as amended.
2. 2In a related file, TD applied to the Tribunal seeking the same repayment from A.P. That file was combined in this file. Although TD was the applicant in the that file, A.P. is the applicant in this file.
3. 3The listing tracks the language of the June 30, 2021 case conference order, but at TD’s request at the hearing, TD limited it’s repayment claim to the amount of benefits paid ($3,500) as listed above, rather than the higher amount in the case conference order, which also included expenses. It is unclear if issue 1 is seeking a repayment under s. 52, and issue 2 a termination under s. 53, or if both issues 1 & 2 relate to the repayment and the reference to s. 53 is in error and should be to s. 52. Either interpretation leads to the same result, as set-forth below.
4. 4See the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended.
5. 5Dawkins v TD General Insurance Company, 2020 CanLII 103689 (ON LAT).
6. 6See Primmum Insurance Company v Baley-Daley, 2015 CanLII 154395 (ON LAT) at para 16.
7. 7Dawkins v TD General Insurance Company, 2020 CanLII 103689 (ON LAT)
8. 8See 16-003909 v Aviva Ins. Ca., 2017 CanLII 59502 (ON LAT), at para 15, discussing “res judicata”.
9. 9The Dawkins decision, para. 19, also considered Dawkins’s medical records, concluding despite appearing at the hospital three days after the accident, she got the date of the accident wrong.
10. 10A.P. Transcript q. 8-21; 31-36, 40, 51, 58-59, 129-148, 229-230; D.H. Transcript q. 65-89, 91-106.
11. 11As noted above, she also testified consistent with her statement in Dawkins, 2020 CanLII 103689.
12. 12Dawkins Transcript, e.g. q. 137-138, 160 – 218; A.P. Transcript q. 5; D.H. Transcript q. 6.
13. 13A.P. Transcript, q. 65-71, 76-82, 141-144; D.H. 112-120, 123-127.
14. 14A.P. Transcript q. 45 – 50.
15. 15See TD Book of Authorities at Tab 2 - Hassan v. State Farm Mutual Auto Ins. Co [2015] OFSCD No. 52
16. 16Primmum Insurance Company v Baley-Daley, 2015 CanLII 154395 (ON LAT)
17. 17See, for instance, 16-004349 v “Mr. P”, 2017 CanLII 148395 (ON LAT).