Aviva General Insurance Company v. Sayegh, 2022 CanLII 33189

Citation: Aviva General Insurance Company v. Sayegh, 2022 ONLAT 20-013245/AABS

Licence Appeal Tribunal File Number: 20-013245/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:

Aviva General Insurance Company

Applicant

and

Antoun Sayegh

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Dmitry Belooussov, Representative Pamela Quesnel, Counsel

For the Respondent: Antoun Sayegh, Self Represented

Interpreter: Diena ElBehesi (Arabic)

Court Reporter: Giles Tingey

HEARD: by Videoconference: February 15, 2022

BACKGROUND

1Antoun Sayegh, the respondent (the respondent), was involved in an automobile accident on March 29, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant, Aviva General Insurance Company (the applicant) paid certain benefits to the respondent or on his behalf for a non-earner benefit and medical benefits for treatment as well as the cost of examinations. The applicant hired an accident reconstruction expert to determine if the accident occurred as reported. Based on that report, it denied further benefits and provided notice to the respondent that it was seeking repayment of benefits paid to the respondent or on his behalf on the basis of wilful misrepresentation under section 52 (1) of the Schedule.¹

2A hearing proceeded by videoconference. An accident reconstruction expert and the respondent testified at the hearing.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are:

1. Is the applicant (Aviva) entitled to a repayment of benefits under s. 52(1) of the Schedule in the amount of $14,983.43 as a result of wilful misrepresentation on the part of the respondent (insured person)?
2. Is the applicant (Aviva) entitled to interest on the outstanding balance to be repaid, if any, in accordance with s. 52(5) and (6)?

RESULT

4The applicant, Aviva, is entitled to a repayment of benefits in the amount of $14,983.43 under section 52 (1) of the Schedule as a result of wilful misrepresentation or fraud on the part of the respondent, Antoun Sayegh. The applicant is entitled to interest on the outstanding balance to be repaid.

OVERVIEW

The Accident

5The respondent testified he was a passenger in a vehicle, a Toyota Sienna, driven by his friend which rear ended another vehicle, a Chevrolet Traverse. He testified he was injured as a result of the accident. In his statement in the Application for Accident Benefits, the OCF-1², he stated the “light was orange, and the driver thought the car ahead was going to proceed and It suddenly stopped instead and rear ended the vehicle in front”. Both vehicles were proceeding westbound on Steeles Avenue approaching an intersection at Founders Road at the time of the collision.

6After impact, the respondent stated the driver of the Chevrolet called the police. The police did not attend the collision site. No ambulance attended at the scene of the accident.

7The driver of the Toyota and the Chevrolet each filed a self reporting collision report³ (the Collision Reports) on March 29, 2018 indicating the accident had occurred. The Collision Report from the Toyota indicated there were 2 occupants in the vehicle at the time of collision. A number of photographs dated April 1, 2018 are attached to the Collision Report. The driver of the Toyota also completed a Collision Report Supplementary Statement Form dated April 1, 2018 in which he stated he was approaching a traffic light that was on orange, the other car stopped and didn’t proceed. He hit the back of the vehicle because his tires do not have a good grip and the brakes are not good too. ⁴ The Collision Report from the Chevrolet indicated there were 4 occupants in the vehicle at the time of collision. The driver of the Chevrolet also signed on March 29, 2018 a Collision Report Supplementary Statement Form ⁵ which stated he was driving his vehicle on Steeles and was at a traffic light when a white Toyota hit the back of his vehicle at Steeles and “Flounders” (The correct spelling of the road is Founders Road). A number of photographs showing damage to the Chrevrolet dated March 29, 2018 were also attached to the Collision Report and Supplementary Statement Form.

8The applicant examined the respondent in its section 44 insurer examinations. A Multidisciplinary Section 44 Insurer Examination Report dated January 28, 2019 was completed by Dr. A. Nesovic, psychologist, Dr. Arta Bedaj, physician and Hadassah Lebovic, occupational therapist.⁶ The report indicates that the respondent reported to Dr. Bedaj during the insurer examination (IE) that he was a seat belted passenger in the Toyota driven by his friend at the time of the collision.⁷ A similar statement was made to Dr. Nesovic who reported the respondent ⁸ was a seat belted passenger in the vehicle at the time of the collision.

9The respondent testified at the hearing that he was in the vehicle at the time of the collision. In cross examination he testified however that he was not in the front passenger seat but rather was holding onto the seat belt in his hand and sitting on the console next to the driver. He stated he was helping the driver of the vehicle drive the vehicle.

10The respondent during testimony stated it was raining and foggy at the time of collision. He testified that the brakes were not good on the Toyota and the tires were bald. The respondent did not call any witnesses at the hearing. He did not file any documents at the hearing although this was requested by the applicant. At the hearing it was noted that the respondent at a case conference held May 3, 2021 had stated he had a document which would refute the Accident Reconstruction Report. The applicant requested this document via emails sent to the respondent on August 17, August 26 and November 12, 2021. ⁹The document was not entered into evidence at the hearing.

11The applicant’s documentary evidence indicates the respondent applied for and received accident benefits. He received a total of $14,983.43¹⁰ of benefits which is comprised of the following including an additional $117.09 for the cost of obtaining medical records:

a. for non-earner benefits the respondent received $7,791.91.¹¹

b. the cost of examinations paid on the respondent’s behalf totalled $4,222.81.¹²

c. medical rehabilitation payments made on the respondent’s behalf are $2,861.62.¹³

12The applicant investigated the accident. It relies on the allegation that the respondent wilfully misrepresented how the accident occurred and his statement that he was present in the vehicle at the time of the collision. On March 21, 2019 (the letter is incorrectly dated March 21, 2018) the applicant sent a letter to the respondent by registered mail¹⁴ which stated the applicant had completed an investigation of the accident and based on the data collected, the applicant had determined the accident did not occur as reported and that the respondent had wilfully misrepresented facts to the applicant in relation to his application for accident benefits. Specifically, the applicant stated:

a. there are significant discrepancies between the facts as presented by the various parties involved;

b. the damage on the vehicles does not match the sequence of events;

c. there was damage on both vehicles that was conflicting or unrelated;

d. data obtained from the autos’ on board computers contradicts the events as reported.

13The applicant further stated in its letter of March 21, 2019 that the respondent is not eligible for accident benefits and no further benefits would be paid as per section 53 of the Schedule. Pursuant to section 52(1)(a), the applicant was seeking repayment of the benefits paid to the respondent or on his behalf totalling $14,983.43.¹⁵ The respondent was asked to repay the amount within 30 days from March 21, 2019. This letter as also sent to the respondent’s legal representative.

14A second letter dated May 9, 2019 ¹⁶ was sent to the respondent and his legal counsel seeking repayment of the $14,983.43 by May 23, 2019. The applicant referred to the March 21, 2019 letter and stated that the amount requested to be repaid had not been repaid. The respondent’s legal representative subsequently advised the applicant by email dated May 9, 2019 that their firm no longer represented the respondent.

15The March 21, 2019 referred to sections 52 and 53 of the Schedule. Section 52 (1) states that 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; and section 53 states an insurer may terminate the payment of benefits to or on behalf of an insured person, if the insured person has willfully misrepresented material facts with respect to the application for the benefit;

The Accident Reconstruction

16The applicant hired an accident reconstruction expert, William Jennings, Forensic Engineer, to reconstruct the accident and determine whether an accident had occurred as reported. Mr. Jennings completed an Accident Reconstruction Report (the Report) ¹⁷. He filed a curriculum vitae setting out his qualifications and he completed an Acknowledgement of Expert’s Duty form signed November 30, 2021.¹⁸ His credentials were not questioned by the respondent. Given his credentials and experience, I accepted him as an expert in motor vehicle collision investigation and in accident reconstructions. He testified as an expert in accident reconstruction.

17The applicant relies on the testimony of William Jennings of Jenish Forensic Engineering and his report dated June 14, 2018 which indicates that, in his professional opinion, the Toyota front passenger seat was unoccupied when the accident is alleged to have occurred. He testified that the only occupant of the Toyota at the time of the collision was the driver. Moreover, the data and his analysis shows the Chevrolet was unoccupied at the time of the collision. He concluded that the only plausible explanation for the accident was that the Chevrolet was stopped and was unoccupied when it was intentionally struck by the Toyota which was accelerated rapidly into the back of the Chevrolet with no front seat passenger.

18Mr. Jennings concluded based on his inspection of the damaged vehicles, inspection of the seat belt restraint system in both vehicles, photographs of the damage to the vehicles ¹⁹ and the data retrieved from the onboard computers of the vehicles (the Event Data Recorders (EDRs) including the Airbag Control Module and the Crash Data Retrieval Report) that the accident did not occur as reported by the respondent. Mr. Jennings concluded that the two vehicles were in a collision with each other but the accident did not occur as reported.

19The report includes photographs of the damage to the vehicles. Figure 2 from the report shows in a photograph the damage to the rear of the Chevrolet. Mr. Jennings testified there was additional damage to the Chevrolet that was unrelated to the reported collision. The damage to the Chevrolet was primarily to the lower left rear half of the vehicle concentrated to the rear bumper cover.²⁰ Figure 3 shows moderate damage to the front of the Toyota. In his report Mr. Jennings stated the moderate damage to the Toyota was consistent with an offset and underride type of impact to the right front. The collision analysis showed the Toyota did collide with the rear of the Chevrolet however, based on their review of the restraint systems of both vehicles and the data stored in the event data recorders, he testified that his analysis is that the Chevrolet was unoccupied when the collision occurred and the Toyota had accelerated rapidly into the rear of the Chevrolet.

20Mr. Jennings testified that the driver of the Chevrolet stated in the Collision Report there were three other occupants in the vehicle at the time of collision. Mr. Jennings investigation showed that although the seatbelts had been buckled the vehicle was very likely unoccupied when it was rear ended. Also, a review of the crash data²¹ from the Chevrolet, indicated in Mr. Jennings’ opinion that the Chevrolet was stopped at the intersection, the vehicle was idling and either in park or neutral gear at the time of collision. In short, the vehicle was stopped and no one was inside.

21Mr. Jennings’ found in his investigation that the Toyota did in fact hit the Traverse however, contrary to the Collision Report, Mr. Jennings confirmed based on the event data extracted from the Toyota that the front passenger seat was unoccupied at the time of collision. The EDR data from the Toyota shows the driver was the sole occupant at the time of the collision.

22The respondent testified that the air bags in the front passenger side of the Toyota did not deploy. During cross examination when asked if he was a passenger in the Toyota, he stated he felt the impact of the airbags. He made a similar statement during his section 44 IE examination to Dr. Bedaj who noted in the multidisciplinary report dated January 28, 2019 ²² that the respondent reported “He felt the impact of the airbags and impacted his right knee on the dashboard.” Mr. Jennings in his report stated the frontal, knee and side airbags were deployed in the Toyota at the time of collision. The passenger side frontal airbag was not deployed.²³ Mr. Jennings testified that if there had been a passenger in the front seat as claimed by the respondent the air bag would have deployed. It did not. The crash data set out in appendix D recorded a number of events including confirming that the front seat passenger seat of the Toyota was not occupied at the time of the collision.

23During cross examination the respondent asked if Mr. Jennings took fingerprints of the steering wheel of the Toyota to show the respondent had his hands on the steering wheel at the time of collision. Mr. Jennings stated no but had the respondent been sitting on the console with no seatbelt on he would have hit the windshield or the dashboard. There was no evidence of this from the applicant’s inspection of the vehicle.

24Furthermore, it is Mr. Jennings’ opinion that the Toyota had actually accelerated into the Chevrolet right before the collision. He arrived at this conclusion after examining the seatbelt restraint systems and the airbag deployment. Analysis of the data from the Toyota showed that the Toyota travelled from a speed of 4 km to a speed of 39 km at the time of impact with the Chevrolet. The Toyota accelerated rapidly just moments prior to impact. The EDR data of the Toyota shows the vehicle accelerated rapidly into the Chevrolet.

25At the end of the hearing and end of his closing submissions, the respondent asked the hearing be adjourned to allow him to call the tow truck driver as a witness. He did not provide any information on the identity of the tow truck driver or his availability. After hearing oral submissions I declined the request. The respondent had opportunity to present evidence, file documents and call his witnesses at the hearing if he wished and as specified in the set out in the case Conference Report and Order dated May 3, 2021. Moreover, even if he called the tow truck driver, the evidence would not be determinative. The truck driver’s testimony would likely show a car was towed and the respondent was perhaps at the scene of an accident at the time of towing. However, it would not show the respondent was in the vehicle as a passenger in the front seat or how the accident occurred. It would not provide any evidence to substantiate the respondent’s position that he was a passenger in the front seat of the vehicle. On this basis and due to the lateness of the request, I declined the request.

Analysis and Decision

26Section 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 and requires the applicant to give notice of the amount that is required to be repaid. Notice must also be given within 12 months of the payment of the amount that is to be repaid. If the notice is not as required, 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.

27Section 52 and 53 read as follows:

52. (1) Subject to subsection (3), 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;

(2) If a person is liable to repay an amount to an insurer under this section, a) the insurer shall give the person notice of the amount that is required to be repaid.

(3) If the notice required under subsection (2) 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.

Further, under subsection (5),

(5) The insurer 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 under subsection (2) and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice under subsection (2) is given.

53. An insurer may terminate the payment of benefits to or on behalf of an insured person, (a) if the insured person has willfully misrepresented material facts with respect to the application for the benefit;

28The applicant has the burden of proving that the benefits paid as a result of an error, wilful misrepresentation or fraud on a balance of probabilities. I find that the applicant has demonstrated that it meets all of the requirements under s. 52 to justify repayment.

29The Tribunal has consistently held that wilful misrepresentation constitutes “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.”²⁴

30I find based on the testimony and conclusions of the expert Mr. Jennings set out in his Report from his review of the damage to the cars, photographs, the event data from the onboard computers including the seat belt restraint system and airbag control modules, show the accident could not have occurred the way it was stated to have occurred by the respondent and other drivers. Mr. Jennings concluded there were no occupants in the Chevrolet and the respondent was not a seat belted front seat passenger as claimed. Further, the Toyota actually accelerated into the back of the Chevrolet. I am persuaded by Mr. Jennings evidence and find his Report cogent. I find on the basis of a review of the oral and documentary evidence, there is no basis to challenge the findings of the expert in the Report and his testimony.

31The respondent testified he was sitting on the console at the time of the collision However his testimony is not consistent with his statement to the IE assessors that he was a seat belted passenger in the Toyota at the time of the collision. I do not accept his testimony and do not find it credible that he was sitting on the console. I accept Mr. Jennings evidence that had respondent been sitting on the console with no seatbelt on at the time of the collision, he would have hit the windshield or the dashboard. There was no evidence of this from the applicant’s inspection of the vehicle. I accept Mr. Jennings testimony that the driver was the sole occupant of the Toyota at the time of the collision and the Chevrolet was unoccupied at the time of the collision.

32The respondent did not produce any documents or evidence to support his position that he was in the vehicle as a passenger or to contest the findings of Mr. Jennings, the expert. The respondent’s testimony is that he was sitting on the console next to the driver but this was not substantiated by the evidence of the expert and his Report. There is no basis to accept the testimony of the respondent that he was in the vehicle as a passenger. He also did not call the two drivers that could have given testimony to corroborate the collision and how it occurred. The fact remains no corroborating evidence was obtained from the respondent. The respondent produced no witnesses to corroborate his account of the events. I draw an adverse inference from the respondent’s failure to produce any witnesses or documents to corroborate the events as reported by him. I find the evidence is unfavourable to the respondent. I accept the testimony of the expert, Mr. Jennings, as to how the accident occurred. There is no basis to dispute his findings and conclusions in his Report.

33Further, pursuant to s. 52(2) and (3), I find the applicant’s notices of request for repayment meet the timeline criteria to support its claim. The applicant provided notice of its intention to seek repayment in two letters, one dated March 21, 2019 and a second letter dated May 9, 2019. I find these notices were provided within the 12-month period prescribed by s. 52(2).

34Sections 52(5) provides guidance on when an insurer may recover interest on repayment. The insurer 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.

35Accordingly, as I find the applicant is entitled to repayment of the benefits paid under section 52, it follows that it may seek interest on overdue amounts under s. 52(5), calculated from the May 9, 2019 letter on the basis that the March 21, 2019 letter contained the wrong date. As such, interest should be calculated from the date of the second notice letter being May 9, 2019.

RESULT

36The applicant, Aviva, is entitled to a repayment of benefits in the amount of $14,983.43 under section 52 (1) of the Schedule as a result of wilful misrepresentation or fraud on the part of the respondent. The applicant is entitled to interest on the outstanding balance to be repaid.

Released: April 21, 2022

______________________________

Thérèse Reilly, Adjudicator

Footnotes

1. 1Ontario Regulation 34/10 as amended.
2. 2Application for Accident Benefits (OCF-1) dated April 7, 2018, Tab 7, Applicant Hearing Brief.
3. 3Exhibits 4 and 5, Self-Reporting Collision Report, tabs 43 and 44, applicant hearing brief.
4. 4The applicant filed the Collision Reports, Supplementary statements and photographs with the Tribunal on February 8, 2022. The applicant stated these were referenced by the accident reconstruction expert in the Accident Reconstruction Report.
5. 5Collision Report Supplementary Statement Form, tab 46, applicant hearing brief.
6. 6Multidisciplinary s. 44 Report, dated January 28, 2019, tab 31, applicant hearing brief.
7. 7Multidisciplinary s. 44 Report, Dr. Arta Bedaj, physician, dated January 28, 2019, tab 31, applicant hearing brief.
8. 8Multidisciplinary s. 44 Report, Dr. Nesovic, psychologist, tab 31, applicant hearing brief.
9. 9Tabs 52 to 54 of the applicant hearing brief.
10. 10The benefits were paid in various time periods between September to November 2018 and February 2019.
11. 11Exhibit 8, Statement of Non-Earner Benefits paid.
12. 12Exhibit 9, Cost of Examination Payments paid.
13. 13Exhibit 10, Statement of Medical Rehabilitation Benefits paid.
14. 14Exhibit 11, Letter from Aviva to the respondent dated March 21, 2018 (the date of the letter is not correct and should read March 21, 2019), tab 20 of the applicant hearing brief. The applicant’s subsequent letter of May 9, 2019 refers to the date of this letter as March 21, 2019.
15. 15Exhibit 14, is the applicant’s statement of benefits paid, tabs 33 to 36, applicant’s hearing brief.
16. 16Exhibit 23, the applicant’s letter to the respondent dated May 9, 2019.
17. 17Exhibit 1, Accident Reconstruction Report, William Jennings, Jenish Forensic Engineering dated June 14, 2018, tab 47, applicant hearing brief.
18. 18Exhibit 3, CV of William Jennings and Acknowledgement of Expert Duty signed November 30, 2021, Exhibit 2, tabs 48 and 49, applicant hearing brief.
19. 19The photographs are not part of the filed hearing brief but were filed separately with the Tribunal on February 8, 2022. Photographs of the Toyota were taken on April 1, 2018 and the Traverse photographs were taken in June 2018.
20. 20Accident Reconstruction Report, page 9.
21. 21Ibid, Appendix D of Exhibit 1, pages 26 to 31.
22. 22Ibid, footnote 6, at page 3 of the report by Dr. Arta Bedaj.
23. 23Accident Reconstruction Report, page 8.
24. 24Unifund Assurance Company v M.D.C., 2020 canlii 94799.