Licence Appeal Tribunal File Number: 21-010954/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:
Anshu Khurana
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Kevin Lundy
APPEARANCES:
For the Applicant: Anshu Khurana, Applicant (Not Present)
For the Respondent: Natasha Richards, AB Specialist
Court Reporter: Jessica Meyerovich, Counsel Sheila Finlay
HEARD: by Videoconference: August 15, 2023
OVERVIEW
1Anshu Khurana (the ‘applicant’) was involved in an automobile collision on February 21, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the ‘Schedule’). The applicant was denied benefits by Economical Insurance Company (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.
2On June 8, 2023, the respondent advised the applicant by letter that it had elected to deny her claim as its investigation had concluded that the collision did not fall within the definition of an “accident” in section 3 of the Schedule. The same letter indicated that the respondent had determined that the applicant had willfully misrepresented material facts with respect to her application and, as a result, the payment of any benefits in relation to her claim were terminated pursuant to section 53 of the Schedule. Pursuant to section 52 of the Schedule, the respondent also sought repayment of all benefits paid to the applicant.
ISSUES
3The preliminary issues in dispute are:
Was the applicant involved in an “accident” as defined by subsection 3(1) of the Schedule?
Is the respondent entitled to terminate the payment of benefits pursuant to section 53 of the Schedule because the applicant wilfully misrepresented material facts with respect to the “accident” in her application for benefits?
Is the respondent entitled to a repayment of benefits paid to the applicant in the amount of $50,958.56 (including $37,371.43 for repayment of an IRB and $5,706.73 for repayment of medical benefits) pursuant to subsection 52(1)(a) of the Schedule?
Is the respondent entitled to interest on the overdue repayment of benefits?
4The substantive issues in dispute are:
Is the applicant entitled to an income replacement benefit (‘IRB’) in the amount of $400.00 per week from December 12, 2021 to date and ongoing?
Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that:
a. The applicant was not involved in an “accident” as defined by subsection 3(1) of the Schedule;
b. The respondent is entitled to terminate the payment of benefits because the applicant wilfully misrepresented material facts with respect to the “accident” in her application for benefits under section 53 of the Schedule;
c. Pursuant to section 52 of the Schedule, the insurer is entitled to full repayment of benefits paid in the amount of $50,958.56 (including $37,371.43 for repayment of an IRB and $5,706.73 for repayment of medical benefits paid), plus any applicable interest.
d. The applicant is not entitled to an IRB;
e. The applicant is not entitled to an award; and
f. Given that there are no benefits owing, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
PROCEDURAL ISSUES
6On June 14, 2022, the applicant’s former legal counsel notified the Tribunal that he no longer represented the applicant with respect to this matter.
7On June 24, 2022, the Tribunal held the first case conference with respect to the application. Despite Rule 14.6 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the ‘Rules’), which requires the parties’ attendance, the applicant did not attend the case conference. The case conference was adjourned to January 10, 2023. On that date, the applicant attended and represented herself. The Tribunal issued orders regarding production of documents and the videoconference format of the hearing.
8On March 10, 2023, the Tribunal issued a notice of hearing for August 15, 2023, starting at 9:30 a.m. This notice was sent to the contact information provided by the applicant in her application and confirmed by her former legal counsel on June 14, 2022. The applicant has not provided any information indicating a change of contact information.
9On July 10, 2023, the Tribunal conducted a motion hearing and issued an order adding the preliminary issues listed at paragraph 3 above and adding a second day to the videoconference hearing. The applicant did not attend the motion hearing. The motion adjudicator denied the respondent’s request to adjourn the scheduled hearing from August 15, 2023 as the respondent had not filed the proper Adjournment Request Form. A copy of the motion order was issued to both parties on July 10, 2023. On July 11, 2023, the Tribunal issued a second notice of hearing that included both hearing dates. The added hearing date of August 16, 2013 was highlighted in yellow to indicate the change from the earlier hearing notice.
10On August 14, 2023 at 7:03 p.m., the evening before the hearing, the applicant sent an email to the Tribunal requesting an adjournment of the hearing on the grounds that her doctor “recommended me complete rest and to stay away from stress” and that she was not “not mentally stable and have mind confusion due to my bad health.” She did not send this request to the respondent or attach any supporting documents, medical or otherwise. At 8:21 a.m. on the first scheduled day of the hearing, the Tribunal responded to the applicant’s email as follows:
To request an adjournment, an adjournment request form must be completed prior to the event day.
As your Hearing is scheduled to start today, please attend the event and speak with the adjudicator.
11I find that the above message provided clear information that the email sent the previous evening was insufficient to secure an adjournment and that the applicant should call into the hearing rather than assume that her request would be granted. In addition, the Tribunal’s reminder that the hearing started “today” should have resolved any potential ambiguity arising from the highlighted second date in the notice of hearing sent on July 11, 2023.
12The applicant did not call into the videoconference hearing at its start on August 15, 2023. She also did not submit an Adjournment Request Form as recommended above, a process of which she should have reasonably been aware since July 11, 2023 when the Tribunal issued the motion order. Efforts by Tribunal staff to contact the applicant were unsuccessful and she did not call into the hearing by 10:00 a.m. despite the Tribunal leaving her a voicemail reminding her to attend by videoconference.
13Counsel for the respondent indicated that despite numerous attempts to contact the applicant, she had not heard from the applicant since June 10, 2023 and had not been notified of any request to adjourn the proceedings until I advised her of the August 14, 2023 email at the start of the hearing.
14As the applicant neither filed the proper written request for an adjournment pursuant to Rule 16.1 nor attended the hearing to request an adjournment orally as permitted by Rule 16.2, I find that the adjournment request was not properly before the Tribunal. However, even in the absence of this procedural issue, I agree with the respondent that the following factors strongly militate against granting the applicant’s request for an adjournment:
a. The applicant had been notified of the present hearing on March 10, 2023 and therefore had sufficient time to request an adjournment in compliance with the Rules.
b. As the application relates to an alleged accident in early 2020, more than three and a half years ago, further delay would undermine the Tribunal’s mandate for timely resolution of disputes. As the applicant’s failure to attend the original case conference had already caused a prior adjournment, it would be inappropriate to delay the proceeding further.
c. The applicant did not submit any medical evidence or any other evidence to support her request for an adjournment.
d. The applicant failed to submit the proper Adjournment Request Form as described by the Tribunal. Pursuant to Rule 16.1, a request for an adjournment of a case conference or hearing must be in writing, be served on the other parties and must include: (a) the reason for the request; (b) written agreement to the adjournment from the other parties or their representatives, if given; and (c) at least three alternative dates, within thirty days of the case conference date or hearing date to be adjourned, that are agreeable to all parties. The applicant’s email did not include either (b) or (c) and included no supporting evidence with respect to (a).
e. Rule 16.1 requires that the requesting party serve the written request for an adjournment on the other parties. Although the consent of the other party is not determinative of whether the Tribunal should grant an adjournment request, it is a relevant factor. In the present case, the applicant opted not to even notify the respondent of her intention to request an adjournment.
f. The applicant has failed to respond to any of the respondent’s correspondence since June 2023 and could have and should have advised the respondent of her intention to request an adjournment of the hearing in advance of the hearing date. The email sent to the Tribunal after business hours was effective as of the date of the hearing itself and was therefore not sent in a timely manner.
g. An adjournment would significantly prejudice the respondent who was prepared for the hearing and had secured the attendance of an expert to testify.
h. The applicant neither submitted nor disclosed any documentary evidence to support her application.
15In light of all of the circumstances, I denied the applicant’s adjournment request.
16Subsection 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (‘SPPA’) permits a tribunal to proceed in the absence of a party provided that it has provided notice of the hearing. Furthermore, the Notice of Hearing issued to the applicant included the caution that, “if you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding.” As I am satisfied that the applicant received sufficient notice of the hearing but chose not to participate, no further delay was necessary. The applicant ultimately did not call into the hearing before its conclusion at 11:00 a.m.
17In its motion, the respondent had requested an adjournment for a preliminary issue hearing with respect to the applicant’s alleged wilful misrepresentation of the incident on February 21, 2020. However, the motion adjudicator denied this request as it was improperly included in a motion and instead added a second day to the hearing specifically to address this preliminary issue.
ANALYSIS
The Collision on February 21, 2020
18On February 26, 2020, the applicant filed an application for accident benefits (‘OCF-1’) with the respondent in relation to a collision in which she claimed to have been a passenger. The driver, Sukhbinder Hundal (‘S.H.’), reported to the Peel Regional Police Service that the collision occurred at 10:30 p.m. February 21, 2020 at the intersection of McLaughlin Road and Earlsbridge Boulevard in the City of Brampton. According to the Motor Vehicle Collision Report, S.H. was driving a black 2014 Mazda 6 GS sedan owned by Jasleen Kang, who was not present at the time of the collision. She reported travelling southbound on McLaughlin Road approaching Earlsbridge Boulevard when her vehicle was struck by a four door sedan of an unknown make and model. In her OCF-1, the applicant provided the following description of the collision:
I was a seat belted rear seat passenger of a vehicle travelling on McLaughlin. As the vehicle travelled through an intersection another car ran the red light and suddenly and without any warning struck the side of the vehicle I was riding in.
19Notes generated by the investigating officer indicated that S.H. did not provide any description of the other vehicle and that there were no witnesses to the collision or any video recording of the event. He noted that the Mazda had “full damage to the passenger side” and that no airbags had deployed.
20On April 26, 2023, the applicant attended an examination under oath. As the applicant did not attend the hearing, the transcript of this examination represents her only account of the events on February 21, 2020. At the examination, the applicant testified that the driver of the vehicle was an acquaintance named “Sukh” she had met at a party and with whom she had shared coffee or tea on two or three occasions over a period of three or four months prior to the collision.
21She stated that on the day of the collision, the driver offered to take her to dinner as she could tell that the applicant was experiencing stress over issues at her employment. According to the applicant, she parked her own car elsewhere and the driver arrived to take her to dinner in the evening at some point after their agreed meeting time. When the driver asked her to sit in the vehicle, the applicant discovered a tall Caucasian man unknown to her already occupying the front passenger seat. When asked who this person was, the driver responded, “Don’t worry. Don’t worry. Just sit.” At the examination, she testified that she did not remember any facial features of the male passenger. She sat in the rear right seat behind him. She believed that she likely wore her seatbelt as this was her custom, but could not state with absolute certainty whether she actually fastened it.
22She also denied any recollection regarding the make or colour of Sukh’s car and expressed uncertainty whether it was owned by her, the male passenger or someone else entirely. Reluctant to converse with the strange man, she instead “did stuff” on her phone. She denied knowing whether there was anything mechanically wrong with the vehicle and believed that the driver intended to take her to a restaurant somewhere in Chinguacousy. She did not recall the name of the restaurant, only that the driver said, “we’re going to go eat there.” She did not recall when the driver picked her up and remembered only that it was dark and very cold.
23The applicant speculated that the collision occurred between 8:00 p.m. and 9:30 p.m. She could not recall the precise location of the incident but speculated that it was “somewhere towards McLaughlin, Bovaird, Chinguacousy.” She also could not recall any physical details from the scene of the collision:
I don’t remember. The only thing I remember is we were going for the food and after a while, something happened and there was a noise. And I believe -- and I banged my head on the passenger seat. I don’t remember the intersection. I don’t remember the light. I don’t know.
24As she did not believe that they were driving on the highway, the applicant speculated that the vehicle was travelling between 50 and 60 km/h when the collision occurred. She agreed with the examiner that the driver may have been in a hurry as she was talking loudly with the male passenger and repeatedly assured the applicant that they would soon arrive at their destination. As she was uncomfortable with the presence of the male passenger, she did not engage him or the driver in conversation and paid more attention to her phone than her surroundings.
25She testified that the vehicle was struck on the right side towards the front of the vehicle but provided no information with respect to the other vehicle involved in the collision. When asked, she stated that she believed that Sukh applied the brakes prior to the impact. She implied in her statement that there was only a single collision but did not recall if the airbags deployed. She denied losing consciousness but described being in a state of shock following the impact and remembered striking her head and knees against the interior of the vehicle.
26Significantly, both the applicant and the driver, S.H., reported that police attended at the scene to investigate the collision. The police report was inexplicably dated November 23, 2020, over nine months later. The officer’s handwritten notes include time references from 22:30 to 22:51, the latter referencing a vehicle being towed. He also included a diagram of the likely impact that suggests a sideswipe collision, inconsistent with S.H.’s later statement given on May 13, 2021 and the applicant’s testimony at the examination under oath.
27While there was no explanation for the lengthy delay in the preparation of the report, I find on the balance of probabilities that the investigating officer did attend at the scene and interviewed the driver. While the applicant testified at the examination under oath that she gave her name to the officer, she did not provide a statement. This is generally consistent with the submitted police report. The applicant did not attend at a collision reporting centre.
Forensic Engineering Investigation
28On May 20, 2021, Intact Insurance (‘Intact’) had assumed carriage of the file and retained CEP Forensic to provide an opinion with respect to the circumstances of the collision. Paul Gullekson (‘P.G.’) is a professional forensic engineer who specializes in the investigation and reporting of insurance claims and litigations for law firms, insurers and insurance adjusters. P.G. focuses on motor vehicle accident reconstruction, conducting site inspections, vehicle examinations and acquisitions of vehicle data. He has had substantial training with event data recorders (‘EDRs’). He was qualified as an expert witness in forensic engineering at the hearing.
29Intact provided CEP Forensics with two summaries of the incident as recounted by the driver, S.H. Although these narratives differed slightly, the latter, provided in a statement taken May 13, 2021, was largely a more detailed version of the former provided on February 24, 2020. In her May 13, 2021 statement, S.H. described the collision as follows:
She was travelling southbound on McLaughlin Road, approaching the intersection with Earlsbridge Boulevard. She had a green light and was “just driving along.” She was travelling approximately 60 km/h. Suddenly, they were t-boned by an unknown vehicle. The unknown vehicle had a red light, came from her right side, and was travelling “very fast.” The air bags did not deploy in her Mazda. The unknown vehicle travelled south after the incident. The incident occurred in the evening around 8:00 p.m. and it was dark. She did not get a chance to see the make, model, or colour of the unknown vehicle but she believes it was a sedan. She had two passengers in her vehicle: the applicant, seated in the front passenger seat, and Mr. Mario Malicia, seated in the rear right seat. All three of them were wearing their seatbelts. The police attended the scene. She believes that her vehicle was towed after the incident.
30In the earlier version of this account, S.H. stated that she had stopped at the intersection and then advanced once the light turned green. However, in both narratives, S.H. specifically stated that her vehicle was in motion when it was struck by the other car. Strangely, the later narrative included significantly more details than the earlier version despite the greater time elapsed since the event.
31In her initial statement to the investigating officer, S.H. offered no details on how the two vehicles came together but advised the officer that the other vehicle was also travelling in the same southbound direction as her. This version of events offers a likely explanation for the diagram of a southbound sideswipe collision included in the officer’s notes. However, S.H. later described the incident as a T-bone collision, somewhat more consistent with the physical damage to her vehicle. This revision strongly suggests that S.H. altered a key aspect of her account of the collision between her initial report and her later statement in 2021.
32CEP Forensic examined the Mazda on June 16, 2021 and downloaded the contents of the EDR. At the time of the examination, the Mazda had already been repaired and sold. As a result, P.G. relied on other sources of information for the physical damage, including twenty-five appraisal photographs taken prior to the repairs. The appraisal was dated March 5, 2020. These images depicted damage to the passenger side of the vehicle primarily to the rear of the front right wheel. On the side doors, the damage indicated that the force was mostly in a lateral direction inwards. There was inward deformation and scuffing to the right side of the vehicle, spanning from the trailing edge of the right fender to the right quarter panel. The right side mirror displayed contact marks and the housing was fractured. There was little significant directionality to the damage other than inward.
33P.G. explained that in passenger vehicles, the EDR most often relates to the airbag control module which is connected to various sensors within the vehicle that monitor for a collision. The EDR collects data with respect to the force and location on the vehicle where a collision occurs and makes decisions on how to respond to an impact. For instance, the EDR determines whether airbags should be deployed and if so, which airbags should deploy and how quickly based on the force and location of a collision and whether various occupants are wearing their seatbelts. It also records information related to these decisions and the data collected by its sensors. A collision investigation involves downloading this embedded data within the airbag control module. Although recorders differ slightly between models of vehicles, an EDR typically provides information regarding the force and direction of a collision, whether airbags deployed, the status of restraints, as well as some information with respect to what the vehicle was doing in the final seconds before impact, such as speed of travel, whether the brake or accelerator pedals were applied and, in various models, some steering data.
34The physical evidence, inclusive of the EDR data, is not consistent with the reports by either the driver or the applicant. The Mazda’s EDR recorded two impact events within the same ignition cycle consistent with the damage associated with the reported incident, based on the number of ignition cycles between the time of the download and the event and the magnitude and direction of the impacts.
35The data associated with the two events recorded by the EDR of the Mazda is consistent with the vehicle being stopped and likely parked when it was impacted twice on the right side. The EDR data indicated no pedal application for the five seconds prior to both impacts. Both events were of a similar magnitude and direction. The first event involved an impact to the passenger side with a change in velocity of 8 km/h in the lateral direction from the passenger to driver side. At the same time, there was no change in velocity to the rear of the vehicle. P.G. explained that this data indicates that the vehicle was stationary when struck on the passenger side. The vehicle was traveling at 0 km/h in the five seconds before the impact and the brake pedal application was recorded as ‘off’ and the engine throttle was at recorded as at 0% for the entirety of the final five seconds. For the second event, the EDR recorded an impact to the passenger side with a change in velocity of 7 km/h with no deceleration or brake or engine throttle application. All of this data collectively indicates that the Mazda was stopped and parked at the time of both impacts.
36The EDR data is therefore inconsistent with both of S.H.’s reported versions of the incident in which she initially indicated she was accelerating from a stopped position at the time of the impact and, alternatively, that she was travelling at 60 km/h at the time of impact.
37The applicant and drivers’ reports with respect to vehicle occupants and status of the safety restraints are also inconsistent with the EDR data and the police report. When the latch plate enters the buckle, it sends a signal to the EDR that the seat belt is in use. The EDR data indicated that the driver’s seatbelt was unbuckled and the front passenger seat was buckled but likely empty at the time of both events. Although the EDR will assume that a driver is present if the vehicle is in motion, the module requires data from the front passenger seat to determine appropriate deployment of the associated airbag with respect to whether the seat is occupied by no occupant, an adult occupant or a child.
38In the present case, the EDR recorded that the front passenger seat belt was buckled, but showed a non-adult in the seat, indicating a light occupant or no occupant – certainly not a tall adult as claimed by the applicant and S.H. P.G. concluded that it was more than likely that the front passenger seat belt was buckled over an empty seat. There was no information with respect to restraint status for the rear seats, but this is not unusual for most vehicle manufacturers. Additionally, the police report indicated that there was one occupant in the vehicle at the time of the reported incident. This is inconsistent with the reports from applicant and S.H. that there were three occupants and all were wearing their seatbelts.
39The physical damage is also consistent with a perpendicular or near perpendicular collision. Had the other vehicle struck the Mazda at a significant angle, more evidence of sliding contact would have been apparent. Instead, the damage consisted of inward denting of the components at the point of contact. The physical evidence suggests a collision at a slow rate of speed and the EDR data confirmed that the Mazda was stopped at the time of impact. Had the Mazda been traveling at 60 km/h as described and was T-boned by another fast-moving vehicle, the observed damage would have been much more severe including significant bowing of the body, crushing into the passenger compartment and sliding contact along the passenger side of the Mazda until it moved off to a resting position. The EDR would have recorded a single abrupt slowing with a longitudinal component and no second impact, rather than the two lateral and comparative minor impacts that were recorded. A second collision would not be expected following an initial severe collision with both vehicles coming to rest following the impact.
40As a result, while both the applicant and S.H. (in her second statement) correctly described a T-bone collision, their accounts were inconsistent with the objective evidence of what the Mazda was doing at the moment of impact. P.G. concluded that the physical evidence and the EDR data suggest that the Mazda was likely parked, possibly with no driver inside with a buckled but empty front right seat. The Mazda was struck on the passenger side once and then again with a similar level of force. All of this is highly inconsistent with the scenarios described by both the driver and the applicant. The objective evidence of the severity of the collision, the speeds at impact and the restraint status were all inconsistent with the reports provided by both.
Was the applicant involved in an “accident” as defined by the Schedule?
41To be eligible for benefits, the applicant must prove on a balance of probabilities that the incident meets the definition of an accident under subsection 3(1) of the Schedule. An accident is defined as:
“an incident in which the use or operation of an automobile directly causes an impairment …”
42In G.S. v. The Personal Insurance Company, 2020 CanLII 98734 (ON LAT) at paragraph 8 and M.D. v. Intact Insurance Company, 2017 CanLII 87155 (ON LAT) (‘M.D.’) at paragraph 13, the Tribunal held that the applicant bears the burden of proof to demonstrate that he or she was involved in an accident. I find the analysis in both cases persuasive. In M.D., the adjudicator relied on Shakur v. Pilot Insurance Co. (1990), 1990 CanLII 6671 (ON CA), 74 OR (2d) 673 (Ont. C.A.), in which the Court of Appeal confirmed that the onus to prove entitlement to benefits under a policy does not shift from the insured person.
43While not cited by name, the respondent implicitly relies upon the two part test as set out by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC) for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to statutory no-fault accident benefits:
a. The Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?
b. The Causation Test: Was there some causal relationship between the applicant’s injuries and the ownership, use or operation of the vehicle, or was it merely incidental or fortuitous?
The applicant bears the onus to satisfy both the purpose and causation tests.
44In Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 OR (3d) 338, the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule, an insured person must meet the purpose test as set out in Amos and the causation test as set out in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 OR (3d) 776 (ON CA). This test was adopted and amended to meet the Schedule’s current and more narrow definition, requiring the applicant to satisfy the following questions:
a. Purpose Test:
i. Did the accident result from the ordinary and well-known activities to which automobiles are put?
b. Causation Test:
i. Was the use or operation of the vehicle a cause of the injuries?
ii. If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In other words was the use or operation of the vehicle a “direct cause” of the applicant’s injuries?
45The respondent took the position that the incident is not an “accident” because it was staged for illicit financial gain. Such a collision would not pass the purpose test above as the incident did not result from the ordinary and well-known activities to which automobiles are put. As the Tribunal noted in C.I. v. Certas Direct Insurance Company, 2020 CanLII 12723 (ON LAT) at paragraph 13, the simple existence of a police report is not sufficient to demonstrate that an accident occurred.
46In light of the numerous and significant inconsistencies between the applicant’s rather improbable account of the events of February 21, 2020 and the overwhelming physical evidence, including the data from the Mazda’s EDR, I agree with the respondent that on the balance of probabilities, the “accident” on that evening was indeed staged.
47Ultimately, I do not accept the applicant’s version of the events surrounding the collision. Therefore, I find that the applicant has failed to satisfy her onus to demonstrate that she was involved in an “accident” as defined in subsection 3(1) of the Schedule.
Wilfully Misrepresentation of Material Facts
48I find the applicant wilfully misrepresented material facts in her descriptions of the circumstances of the collision. In Aviva General Insurance Company v. Sayegh, 2022 CanLII 33189 (ON LAT) at paragraph 29, the Tribunal 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.” As noted above, the applicant’s subjective description of the facts of the collision is significantly inconsistent with the physical evidence of the damage to the Mazda and the data retrieved from its EDR with respect to multiple material facts.
49I find the applicant misled the respondent with respect to these details in an attempt to claim statutory accident benefits from the respondent to which she was not entitled. Therefore, the respondent has established that the applicant’s material misrepresentation of the facts was wilful.
50Section 118 of the Insurance Act enshrines the public policy against a person using his or her own wrongful act to benefit from an insurance policy. In C.I. at paragraph 34., the Tribunal held that the application for and receipt of accident benefits on the basis of alleged injuries allegedly sustained as a result of the alleged “accident” constitutes a wilful misrepresentation.
51Similarly, I find that the applicant’s misrepresentation was material to her application for benefits on the basis of injuries allegedly sustained as a result of the “accident” payable by the respondent.
Repayment of Accident Benefits
52I find that as a result of the applicant’s wilful misrepresentation of material facts when she applied for benefits from the respondent, the respondent is entitled to repayment of all benefits paid to applicant pursuant to section 52 of the Schedule. Specifically, the respondent is entitled to repayment of $50,958.56. This total includes but is not limited to $37,371.43 for repayment of an IRB and $5,706.73 for repayment of medical benefits paid. The respondent is also entitled to repayment of any applicable interest.
Entitlement to Income Replacement Benefit
53I do not find that the applicant met her evidentiary onus to demonstrate that she is entitled to an IRB.
54The test for entitlement to payment of an IRB is set out in subsection 5(1) of the Schedule. In the applicant’s case, it was not disputed that she was employed in the twenty-six weeks preceding the collision. However, she must also prove on a balance of probabilities that, as a result of and within 104 weeks after the accident, she suffered a substantial inability to perform the essential tasks of her pre-accident employment.
55The respondent submitted evidence that the applicant had been dismissed from her employment effective February 12, 2020, eight days before the incident. On or about March 16, 2020, she informed her insurer that she was involved in an accident. The insurer paid the benefits in good faith until it received a tip that the accident may have been staged.
56The applicant submitted no evidence of an impairment that prevented her from working. On the contrary, at the time of the examination under oath, she was actively looking for work. Social media posts submitted by the respondent also suggested that the applicant enjoyed a very active social life. Although she testified to pain in her legs at the examination, she failed to provide any documentation, medical or otherwise that she suffered a substantial inability to perform the essential tasks of her pre-accident employment.
Interest Payable to Applicant
57Interest applies to the payment of any overdue benefits pursuant to section 51 of the Schedule. As I find that the applicant was not involved in an accident within the definition in subsection 3(1) of the Schedule, she is not entitled to medical benefits. As a result, since none are overdue, no interest is payable by the respondent.
Award
58The applicant sought an award under section 10 of Regulation 664. As no benefits are payable to the applicant and she has submitted no evidence to suggest that the respondent unreasonably withheld or delayed the payment of benefits, I find that she is not entitled to an award under section 10 of Regulation 664.
ORDER
59The applicant was not involved in an “accident” as defined by subsection 3(1) of the Schedule.
60The respondent is entitled to terminate the payment of benefits pursuant to section 53 of the Schedule because the applicant wilfully misrepresented material facts with respect to the “accident” and her application for benefits.
61Pursuant to sections 52 of the Schedule, the respondent is entitled to full repayment of benefits paid in the amount of $50,958.56 of which $37,371.43 for repayment of an IRB and $5,706.73 for repayment of medical benefits paid, plus any applicable interest.
62The applicant is not entitled to an IRB.
63The applicant is not entitled to an award.
64Given that there are no benefits owed, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
Released: September 18, 2023
Kevin Lundy
Adjudicator