Katsiashvili v. Economical Mutual Insurance, 2023 CanLII 1485

Citation: Katsiashvili v. Economical Mutual Insurance, 2023 ONLAT 21-015596/AAABS - P

Licence Appeal Tribunal File Number: 21-015596/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:

Merab Katsiashvili

Applicant

and

Economical Mutual Insurance Company

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Merab Katsiashvili, Applicant

Jenny Babayev, Paralegal

For the Respondent:

Rovina Sehdev, Claims Adjuster

Kyle McNerney, Counsel

Heard by way of written submissions

OVERVIEW

1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on July 23, 2020.

PRELIMINARY ISSUES

2As a whole, the respondent submits that the applicant is disentitled to accident benefits because he was not involved in an accident. If it is found that it did occur, the applicant made a willful misrepresentation to the respondent. Moreover, the applicant failed to comply with the Schedule’s requirements for applying for accident benefits. I must decide the following issues as per Adjudicator Setton’s order dated November 2, 2022:

1. Is the applicant barred from a hearing for the benefits in dispute because the applicant has wilfully misrepresented material facts with respect to the application for the benefits?
2. Is the applicant barred from a hearing for the benefits in dispute because the applicant has failed to submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms?
3. Is the applicant barred from a hearing for the benefits in dispute because the applicant has failed to submit an additional application in respect of a benefit that the applicant may be receiving or may be eligible to receive, because the applicant failed to submit the additional application to the insurer within 30 days after receiving the additional application forms?
4. Has the applicant failed to notify the insurer within the required time limits of the Schedule?
5. Has the insurer failed to respond to the applicant’s application for within the delays of the Schedule?

RESULT

4The incident in question was not a staged accident. The applicant did not fail to comply with the Schedule’s requirements for applying for accident benefits.

ANALYSIS

Issue #1 – Willful Misrepresentation

5As mentioned above, the issues in dispute for this hearing as adapted from the arguments submitted by the parties is whether an accident occurred and if it did occur, whether the applicant made a willful misrepresentation to the respondent. Even though the parties argue about whether this is an accident, the real argument is about whether there was willful misrepresentation.

3For the reasons that follow, I find that the applicant did not willfully misrepresent the material facts when he described the events leading up to the collision, how the collision happened, or the injuries he sustained. I find the applicant did not willfully mislead the respondent with respect to these details when claiming statutory accident benefits from the respondent to which he was properly entitled.

4Section 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 willfully 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.

5In support of its case, the respondent is relying on the Examination Under Oath (“EUO”) from the applicant and the passenger NP, submitting that there are significant inconsistencies between the physical evidence obtained in the course of its investigation and the EUO testimony provided by the applicant and NP. The inconsistencies are as follows:

1. Gas station: The applicant testified that there were no other gas stations between his residence and the Esso on Dufferin St and Finch Ave West. NP stated that there were other gas stations that were closer. While their statements are inconsistent, I don’t find that it amounts to willful misrepresentation. I am persuaded by the applicant’s submission that is their individual recollection of facts. Moreover, I find it to be immaterial.
2. Attendance at the gas station: The respondent asserted that the applicant and NP could not explain why they attended this particular gas station. The applicant was not asked this question during the EUO. Therefore, I am assigning less weight to this argument.
3. Who entered the gas station first: The respondent asserted there is an inconsistency with respect to who entered the gas station first. The applicant stated that he believed that he went first but that he did not know just exactly who was first. I note that NP was not asked this question during the EUO. As such, I am assigning less weight to this argument.
4. Inconsistency regarding the lane: The respondent submitted that the applicant and NP stated that prior to the subject accident, they were travelling in the curbside lane. This is contrary to the Motor Vehicle Accident Report and Police Constable Farshad Daryaram’s field notes. The Motor Vehicle Accident Report diagram shows that the car was in the center lane. The general occurrence hardcopy notes that they were in lane 1. The applicant submitted a transcript from an interview that was conducted with P.C. Daryaram on October 11, 2021. During this interview, he stated that, “the impact occurred at the driveway where the house was.” He also stated that he could not determine what lane the collision occurred in. I find his uncertainty of where the collision occurred weakens his evidence about which lane the vehicle was in and therefore give this argument less weight.
5. Number of passengers: The respondent raised an inconsistency with respect to the number of passengers in the other vehicle. The applicant testified that there were two passengers and one driver. According to Motor Vehicle Accident Report, there were two occupants. It should be noted that P.C. Daryaram did not interview the passengers. P.C. Daryaram stated that “I think one of the truck’s occupants was in the house that was at the scene when I arrived.” Given the circumstances, I am more persuaded by the applicant and NP’s testimony. They were at the scene and saw the passengers, whereas P.C. Daryaram arrived later. I find P.C. Daryaram’s evidence to be unhelpful. He was equivocal.
6. Position of the truck and how the other driver got out: The respondent challenged the applicant’s testimony regarding the position of the truck and how the driver got out of the truck. The applicant testified that he saw the driver of the rolled over vehicle and that he had gotten out. There is no testimony that describes the mechanics of how the driver of the other vehicle got out. Nor is there any evidence that that contradicts the applicant’s testimony. Moreover, with respect to the rolled over truck, P.C. Daryaram mentioned that it may have been on its side. I find this to be equivocal. I do not find there to be an inconsistency.
7. Location of the acquaintance’s car: Timor, an acquaintance of the applicant, arrived at the scene and took him and NP home. The applicant testified that he picked them up directly at the intersection of Finch Ave West and Wilmington Road despite the road being closed as a result of the accident. NP testified that they walked 200 meters to enter his car and couldn’t remember anything specific about a road blockage. When asked how far away Timor’s vehicle was, he stated he didn’t remember. He then stated that it was quite far and that he didn’t remember. It could be 100 metres or 200 metres. The applicant stated that he did not know where the vehicle was parked at the scene. Timor brought his vehicle closer to the place he was. He confirmed Timor drove up to the intersection. However, the applicant never specified the exact intersection and nor is there any information regarding where the road was blocked off. I don’t find there to be any misrepresentation.
8. Airbag: The respondent alleged that there is an inconsistency between the facts and evidence in relation to the airbag. With respect to the airbag deploying, both the applicant and NP testified that the driver’s airbag deployed. The photographs submitted into evidence corroborate this. I find that there is no inconsistency.
9. Injuries: The respondent stated that “Despite Mr. Pridonashvili allegedly striking his head against the windshield of the BMW hard enough to potentially crack the glass, [P.C. Daryaram] reported no injuries at the accident scene.” I assign less weight to this argument because the respondent is talking about the passenger, not the applicant. Although P.C. Daryaram noted that that there were no reported injuries, the applicant did go to a walk-in clinic a few days later on July 27, 2020. Dr. Bakshi documented his complaints from the accident.

9On a balance of probabilities, I am not persuaded that the applicant willfully misrepresented material facts with respect to his claim. I find that the applicant has proved that he was involved in an accident.

Issues #2 to 5 – Delay

10The respondent submitted that the applicant is barred from proceeding with his application due to the extreme delay between the accident and filing his application of benefits. Moreover, the applicant has not provided any explanation for the five-month delay in filing his application for accident benefits.

11The applicant submitted that he notified the respondent regarding the injuries sustained in the accident sometime in August 2020. In the alternative, he notified the respondent as soon as practicable by filling the application for benefits (OCF-1) on December 23, 2020. The respondent confirmed that the OCF-1 was received on December 24, 2020 via email. The OCF-3 was submitted on January 5, 2021. The applicant submitted that the respondent did not take any steps to respond to the OCF-1 and OCF-3 within 10 business days in accordance with Section 36(4) of the Schedule. The reason for the delay is the fact that the respondent failed to provide him with the necessary information and forms.

12I am unable to have a full and satisfactory understanding of the issues in the proceeding as the respondent has failed to produce the adjuster’s log notes.

13The adjuster’s log notes would provide a complete record of what happened in this claim. In the absence of the adjuster’s log notes, I am unable determine the sequence of events. The applicant submitted that he notified the respondent in August 2020. The respondent has the evidence that could confirm or refute this fact. However, the applicant has been prejudiced by the respondent’s failure to disclose because the evidence could have corroborated or refuted his submissions has been withheld from him.

14I note that in the Case Conference Report and Order dated November 2, 2022, Adjudicator Setton ordered the respondent to produce the adjuster’s log notes to the applicant no later than seven calendar days from the case conference, which occurred on October 18, 2022. The respondent did not comply with the Order. The respondent did not provide any reason as to why it failed to comply with the Order, which it consented to at the case conference. As such, I am left to conclude that the adjuster’s log notes were not produced because it was unfavourable to the respondent.

15As the respondent seeks the relief, they have the onus of proof. Based on the information that I do have, I find they did not meet their onus for each issue and accordingly my answers to issues 2, 3 and 4 are “no.”

16With respect to issue #5, the applicant submitted that he notified the respondent sometime in August 2020. He argues that he was not provided with any type of correspondence from the respondent before December 24, 2020 including the information to apply for benefits. Moreover, the applicant alleges that the respondent’s conduct in handling his claim is an unfair or deceptive act or practice, relying on Regulation 7/00 (Unfair or Deceptive Acts or Practices) under the Insurance Act (the applicant incorrectly attributed this regulation as being under the Financial Services Regulatory Authority of Ontario Act).

17The applicant does not point to me how I have the jurisdiction to adjudicate an alleged UDAP given that s. 280 of the Insurance Act requires me to resolve accident benefits disputes in accordance with the Schedule. I do not have evidence of when the respondent sent the package to the applicant as I do not have the log notes, which would have answered that question. As such, I am not satisfied that I have the jurisdiction to adjudicate the UDAP. Therefore, I must answer issue 5 as “no.”

18In order to ensure a fair and efficient resolution of the issues in this proceeding, the matter will proceed to a hearing on the merits for the substantive issues in dispute.

CONCLUSION

19I find that the applicant was involved in an accident as defined in s. 3(1) of the Schedule and, as a result, is entitled to any statutory accident benefits. I find the applicant did not mislead the respondent with respect to these details in an attempt to claim statutory accident benefits from the respondent to which he was properly entitled.

ORDER

20I order that the applicant’s appeal on the substantive issues may proceed to a hearing before the Tribunal.