Certas Direct Insurance Company v. Al-Farraji, 2023 CanLII 9235
Licence Appeal Tribunal File Numbers: 21-000548/AABS, 21-000341/AABS, 21-000550/AABS and 21-000533/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:
Certas Direct Insurance Company
Applicant
and
Riyadh Al-Farraji, Matti Al-Shaheen, Tiba Al-Farraji and Maysoon Al-Mashhadani
Respondents
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Carol Rambally, Counsel
For the Respondents: No submissions were filed
HEARD: BY WAY OF WRITTEN SUBMISSIONS
BACKGROUND
1Riyadh Al-Farraji (“Riyadh”), Matti Al-Shaheen (“Matti”), Tiba Al-Farraji (“Tiba”) and Maysoon Al-Mashhadani (“Maysoon”), collectively the respondents in this matter, were involved in an automobile accident on January 22, 2019. The respondents sought benefits from Certas Direct Insurance Company, the applicant, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
2The applicant paid the respondents Riyadh and Matti $1,590.00 each, in medical benefits under the Minor Injury Guideline. The applicant also paid to the respondents Tiba and Maysoon $3,500.00 each, in medical benefits under the Minor Injury Guideline.
3The applicant subsequently conducted an investigation by its in-house Special Investigations Unit (“SIU”), which found that the accident in question did not occur in the manner described by the respondents. As a result, the applicant wrote to the respondents to schedule examinations under oath (“EUOs”). All four respondents failed to attend the scheduled EUOs and did not reply to the correspondence.
4In the absence of a response, the applicant wrote to the respondents denying their respective accident benefit claims due to wilful misrepresentation of material facts. Notice letters were also sent pursuant to s. 52(2)(a) of the Schedule to each of the respondents seeking repayment of the respective benefits paid.
5The applicant then filed applications with the Tribunal seeking repayment of the accident benefits paid. The respondents did not file responses to the applicant’s applications nor did they attend their respective scheduled case conferences. Pursuant to Case Conference Report and Orders dated June 29, 2021, and June 30, 2021, Adjudicator Gosio ordered that all matters for each of the four respondents Riyadh, Matti, Tiba and Maysoon, be heard together, by way of written hearing.
6To date, the respondents have not responded to the applicant’s repayment requests nor did they provide submissions for this written hearing, which was set down in their absence.
ISSUES
7The applicant submits that the issues in dispute are as follows:
- Is the applicant entitled to repayment of accident benefits from the respondents in the respective amounts of:
a. $1,590.00 from the respondent Riyadh;
b. $1,590.00 from the respondent Matti;
c. $3,500.00 from the respondent Tiba; and
d. $3,500.00 from the respondent Maysoon.
- Is the applicant entitled to interest?
RESULT
8Based on the written submissions and evidence before me I find that the applicant is not entitled to a repayment of the accident benefits paid to the respondents. As no repayment is owing, no interest is payable.
ANALYSIS
Can the Tribunal Proceed in the Matter in Absence of the Respondents?
9As mentioned, none of the respondent parties responded to this application before the Tribunal. Accordingly, I must be satisfied that each respondent received notice of this written hearing, in compliance with the Statutory Powers Procedure Act (“SPPA”).
10Section 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 each respondent was served notice, by way of regular mail, of the case conferences and the written hearing. Therefore, in accordance with s. 7(2) of the SPPA, none of the respondents are entitled to any further notice in the proceeding, and I may proceed in their absence.
Law
11Section 52(1)(a) of the Schedule states that a person is liable to repay 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.
12The insurer must give notice within 12 months after the payment is made otherwise the person ceases to be liable. Pursuant to s. 52(3), the 12-month requirement does not apply if the benefit was paid as a result of wilful misrepresentation or fraud.
Has the Applicant Established Wilful Misrepresentation?
13While the respondents did not provide written submissions or a defence, the applicant has the burden of proving that the benefits were paid as a result of wilful misrepresentation on a balance of probabilities.
14I find that the applicant has not provided sufficient evidence to establish that the benefits were paid as a result of wilful misrepresentation.
15The applicant submits that all four respondents have wilfully misrepresented material facts of the accident. It relies on the results of its SIU investigation which included phone interviews, Carfax and Autoplus searches and external reconstruction analysis. According to the applicant, an interview with the property manager at the accident location confirmed that security video footage did not capture any accident involving the respondent Riyadh’s vehicle, and the location did not have any damage consistent with what respondent Riyadh had reported.
16Further, the applicant submits that an accident reconstruction report by a licensed professional engineer concluded that the driver was the sole occupant of the vehicle at the time of the collision and that there were material discrepancies in both the manner and location of the alleged accident. Finally, the applicant submits that the respondent Riyadh provided a statement a week after the accident, which was inconsistent with the description of the accident in his Application for Accident Benefits (“OCF-1”).
17However, while the applicant has cited these results of its SIU investigation as evidence of the respondents’ wilful misconduct, none of this SIU documentary evidence was provided as part of its document brief for this written hearing. The applicant has submitted only the respondents’ OCF-1s, the standard benefit statements indicating the amount paid to each respondent and its correspondence to the respondents with respect to the EUOs, denial notices and requests for repayments. The only additional evidence provided was a police motor vehicle accident report dated the date of the alleged accident, but this report does not contain any details of the accident.
18In its submissions, the applicant references or summarizes the various aspects of its SIU investigation. However, copies of the accident reconstruction report, Carfax and Autoplus searches, the statement from the respondent Riyadh post-accident, or any information from the property manager, were not provided.
19While I accept that the type of evidence described in the applicant’s submissions can be persuasive evidence of wilful misconduct, without being provided any of the underlying documents referenced in the applicant’s submissions, I am unable to find that the applicant met its evidentiary burden. It is well settled that submissions are not evidence. Rather, the applicant must provide evidence in support of such submissions. Further, while s. 15 of the SPPA enshrines a flexible approach to evidence in administrative law that allows for the admission and consideration of hearsay evidence – as long as it passes the threshold of relevance – this flexible approach does not assist the applicant.
20The applicant contends that the SIU investigation file is “privileged in its entirety” and that instead, it would refer to the relevant investigatory findings in its submissions. The applicant further cites two Tribunal decisions, G.S. v. The Personal Insurance Company, 2020 CanLII 98734 (ON LAT) and 17-000532 v Intact Insurance Company, 2017 CanLII 87155 (ON LAT), where the type of evidence summarized in its submissions, was found to demonstrate wilful misrepresentation warranting repayment. However, I note that unlike in the present case, in the decisions cited by the applicant, the insurer had provided specific evidence of material inconsistencies and its investigatory findings.
21In G.S. v. The Personal Insurance Company, the insurer called its SIU investigator to provide evidence of material inconsistencies. The adjudicator specifically noted that she found the SIU investigator’s evidence persuasive in demonstrating that the accident was a staged accident. Similarly, in 17-000532 v Intact Insurance Company, the insurer called the accident reconstruction engineer who testified as to his accident reconstruction report. The insurer also called its investigator, who testified as to the inconsistencies in the stated collision. I note that in both of these decisions, SIU evidence was submitted and relied upon by the insurer. It is unclear why in the present case the SIU file is entirely privileged, such that none of the evidence could be submitted, but that only a summary could be provided.
Adverse Inference
22Finally, the applicant submits that as a result of the respondents’ failure to clarify inconsistencies, attend at the EUOs or case conferences or provide submissions to this hearing, an adverse inference should be drawn. It cites the Tribunal decision Aviva General Insurance v. Mehdi Najmialdin, 2021 CanLII 35575 (ON LAT), where an adverse inference was drawn due to the fact that the claimant failed to provide corroborative evidence opposing the finding of wilful misrepresentation.
23However, I similarly find that this decision is distinguishable. In Najmialdin, while the adjudicator did make an adverse inference, he also noted that the insurer had the burden of proving that the benefit was paid as a result of error, wilful misrepresentation or fraud. Based on the evidence led by the insurer in Najmialdin, namely testimony from a police constable and a driver which refuted the claimant’s description of the accident, the adjudicator concluded that this onus had been met. In the case at hand, the applicant has not provided such evidence to satisfy its evidentiary onus, even if an adverse finding is made.
24Based on the foregoing, I find that the applicant has not adduced sufficient evidence to establish that the benefits in question were paid as a result of wilful misrepresentation.
CONCLUSION AND ORDER
25The applicant is not entitled to a repayment of the accident benefits paid to the respondents. As no repayment is owing, no interest is payable. The application is dismissed.
Released: February 10, 2023
Ulana Pahuta
Adjudicator