Citation: Al Jaberi v. Echelon General Insurance Company, 2023 ONLAT 21-001706/AABS

Licence Appeal Tribunal File Number: 21-001706/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:

Ahmed Al Jaberi

Applicant

and

Echelon General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: No submissions were filed

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ahmed Al Jaberi, the applicant, was involved in an automobile accident on March 19, 2018, 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 the respondent, Echelon General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties attended a case conference on March 9, 2022 where a number of issues were set for a videoconference hearing, including a treatment plan and income replacement benefits. The respondent also raised the issue of repayment of income replacement benefits, which was included as an issue in dispute for the hearing.

3On October 12, 2022, the applicant filed a Notice of Withdrawal and the Tribunal closed the Application. The respondent subsequently filed a Notice of Motion requesting that the Tribunal reopen the file for the purpose of adjudicating the sole issue of income replacement benefits repayment.

4By way of Motion Order dated November 14, 2022, the Tribunal granted the respondent’s motion and held that the matter would proceed to a written hearing on the sole issue of repayment of income replacement benefits.

ISSUES

5The issue in dispute is:

i. Is the respondent entitled to a repayment of income replacement benefits in the amount of $20,400.00 for the period up to April 17, 2019?

RESULT

6Pursuant to s. 52 of the Schedule, the respondent is entitled to repayment of income replacement benefits in the amount of $20,400.00 as a result of the applicant’s wilful misrepresentation. Interest is payable in accordance with s. 52 of the Schedule.

ANALYSIS

Background and Parties’ Positions

7After the March 19, 2018 accident, the applicant applied for and received income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from March 26, 2018 to April 17, 2019. The respondent had approved the IRBs after receiving an Application for Accident benefits, an Employer’s Confirmation Form (OCF-2) and pay stubs for the four weeks prior to the accident, all indicating that the applicant was employed full-time as a cook at Babylon Tower at the time of the accident.

8However, the respondent submits that it subsequently received additional information, indicating that the applicant was not in fact employed at the time of the accident. As such, it made a s. 33 request by letter dated March 5, 2019, for additional pay stubs, the 2018 T4 and record of employment from Babylon Tower, the applicant’s employment file, his 2018 Income Tax Return and bank statements for January, February and March 2018. Despite repeated requests for the documentation, the applicant failed to provide the financial and employment information. The respondent further submits that the applicant provided vague and contradictory statements at his Examination Under Oath (“EUO”), regarding his employment.

9Given the inconsistencies in paystubs, the applicant’s disclosures in the EUO and his failure to provide the requested s. 33 disclosure, the respondent sent a notice of repayment dated May 28, 2019 requesting repayment of IRBs in the amount of $20,400.00. Almost two years after this request for repayment, the applicant’s legal representative provided some, but not all, of the requested financial disclosure. The respondent submits that this additional disclosure confirms that the applicant was not working at the time of the accident.

10Moreover, the applicant provided a new set of pay stubs from Babylon Tower, which overlapped with the pay period covered in the first set of pay stubs the applicant had provided two years previously. The respondent submits that these pay stubs are completely different from the original pay stubs provided in support of the applicant’s claim for IRBs. The address of Babylon Tower is different, the pay periods are different, a different hourly rate is listed, and the hours worked and YTD amounts are different. As such, the respondent argues that the applicant has provided fraudulent documentation in support of his IRB claim.

11Given the foregoing, the respondent submits that the applicant made a wilful misrepresentation regarding his pre-accident employment at Babylon Tower, and that it is entitled to repayment of all IRBs.

12The applicant did not provide any submissions for this written hearing.

Can the Tribunal Proceed in the Matter in Absence of the Applicant’s Submissions?

13As mentioned, the applicant did not provide written submissions for this hearing. Accordingly, I must be satisfied that the applicant received notice of this written hearing, in compliance with the Statutory Powers Procedure Act (“SPPA”).

14Section 7(2) of the SPPA allows this Tribunal to proceed with a scheduled written hearing in the absence of a party if it is satisfied that the absent party was given proper notice of the written hearing. In reviewing the Tribunal’s file, I find that the applicant was served notice, by way of regular mail, of the written hearing. Therefore, in accordance with s. 7(2) of the SPPA, the applicant is not entitled to any further notice in the proceeding, and I may proceed in his absence.

Schedule 52 of the Schedule

15Section 52 of the Schedule governs 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.

16The Tribunal has defined “misrepresentation” as, “any manifestation by words or other conduct by one person to another that, under the circumstances, amount to an assertion not in accordance with the facts.” The Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation.¹

Wilful Misrepresentation

17I agree with the respondent that, on the evidence, it overpaid IRBs to the applicant as a result of a wilful misrepresentation by the applicant regarding his employment at the time of the accident.

18I find the evidence submitted by the respondent to be persuasive in establishing that the applicant was not employed at Babylon Tower at the time of the accident. Namely, that:

i. The applicant reported to an employee at Ontario Works during the period that he claimed to have been employed by Babylon Tower, that he was not working;

ii. At his Examination Under Oath, the applicant provided vague testimony, including that he could not recall the month he began employment, that he could not recall his previous employer and that could not recall receiving paystubs or a T4 from Babylon Tower for 2018;

iii. Almost two years after requested, the applicant provided a 2018 Notice of Assessment which confirmed that he reported no T4 employment income in 2018 and reported receiving only social assistance income;

iv. The applicant provided two sets of completely different pay stubs for overlapping employment periods, with different addresses for the place of employment, different pay periods, hourly rates, hours worked and YTD amounts;

v. To date, the applicant has failed to provide requested s. 33 disclosures, including his bank statements to confirm direct deposit payments from Babylon Tower, a record of employment or an employment file.

19In the absence of submissions from the applicant proving the contrary, it is difficult to find how the applicant’s conduct, admissions that he was not working prior to the accident, failure to produce requested documents and silence at this hearing does not amount to “an assertion not in accordance with the facts.” That is, that the applicant was not employed at the time of the accident. The Tribunal therefore draws an adverse inference against the applicant for his failure to provide the requested employment and banking information or to dispute the respondent’s claims as evidence against him. Having found that the applicant wilfully misrepresented his pre-accident employment, I must now determine whether the respondent provided proper notice of repayment.

Notice of Repayment

20I find that the respondent’s notice of repayment dated May 28, 2019 meets the criteria outlined in s. 52(2) of the Schedule.

21Sections 52(2) and (3) of the Schedule provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid within 12 months after the payment of the amount that is to be repaid unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

22As previously noted, I have found that the respondent has established wilful misrepresentation. Further, the notice was provided within the stipulated 12 months of payment. The respondent first notified the applicant on June 6, 2018 that he was entitled to IRBs and made a lump sum payment for the period of March 26, 2018 to June 24, 2018, with ongoing IRB payments thereafter. Its notice of repayment was provided on May 28, 2019, which is well within the 12-month period to provide notice as prescribed by s. 52(3). Further, the notice meets the criteria outlined in s. 52(2), as it states the type of benefit to be repaid (IRBs), the amount to be repaid ($20,400.00) and the payment period for which repayment is sought (March 26, 2018 to April 17, 2019). As such, I find the respondent’s notice complied with all of the procedural requirements for a s. 52 repayment request.

Interest

23Section 52(5) and 52(6) of the Schedule provide guidance on when an insurer may recover interest when seeking 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.

24Having found that the respondent is entitled to repayment, it follows that it is also entitled to interest on the amounts to be repaid under s. 52(5) of the Schedule.

ORDER

25For the reasons outlined above, the respondent is entitled to a repayment under s. 52 in the amount of $20,400.00 plus interest in accordance with s. 52 of the Schedule, as a result of IRB overpayment made on the basis of willful misrepresentation.

Footnotes

1. 117-000272 v. T.T., 2017 CanLII 87539 (ON LAT) at paras. 21 and 28