Licence Appeal Tribunal File Number: 21-013408/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:
TD General Insurance Company
Applicant
and
Farkhad Shirin
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Lauren C. Kolarek, Counsel
For the Respondent:
Maria Papadopoulos, Paralegal
HEARD: By way of written submissions
OVERVIEW
1Farkhad Shirin (“Shirin”) claimed involvement in an automobile accident on June 27, 2018, and sought benefits from TD General Insurance (“TD”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TD determined that Shirin misrepresented his involvement in the accident and sought a repayment of the benefits paid to Shirin. Shirin refused to repay the benefits and TD and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A preliminary issue hearing occurred to determine whether Shirin was involved in an accident. In TD General Insurance Company v F. Shirin, 2023 CanLII 72655 (ON LAT) (“TD v Shirin”) the Tribunal determined that Shirin was not involved in the accident as he claims.
3TD now seeks a repayment of the benefits paid to Shirin on account of wilful misrepresentation.
ISSUES
4The issues in dispute are:
i. Is TD entitled to a repayment in the amount of $23,569.91 for past medical and rehabilitation benefits paid to Shirin to-date?
ii. Is TD entitled to interest on the overdue repayment of benefits pursuant to section 52(5)?
RESULT
5TD is entitled to a repayment of medical and rehabilitation benefits in the amount of $23,569.91, plus interest pursuant to section 52(5) of the Schedule.
BACKGROUND
6In a decision released August 2, 2023, the Tribunal determined that an accident occurred on June 27, 2018, but that Shirin was not involved in the accident as he claimed to be. The determination was based on multiple inconsistencies within Shirin’s own evidence, the lack of corroborating evidence (including a failure to call the driver of the vehicle as a witness), and the findings in two engineering reports which directly contradicted Shirin’s evidence.
7TD characterizes Shirin’s actions as material misrepresentation. It claims that it paid benefits to Shirin based on those material misrepresentations and seeks a repayment of the benefits paid to-date.
8In his submissions, Shirin does not deny that he committed an act of material misrepresentation. Instead, he submits that TD is not entitled to claim a repayment of benefits that were paid to third-party service providers.
ANALYSIS
Repayment
9Section 52(1)(a) of the Schedule permits TD to claim a repayment of any benefit paid to Shirin as a result of wilful misrepresentation or fraud.
10Section 52(2) of the Schedule provides that TD must give Shirin notice of the amount that is required to be repaid.
11Section 52(3) of the Schedule states that if TD fails to give notice of repayment to Shirin within 12 months after the payment of the amount that is to be repaid, then Shirin is not liable to repay the amount claimed unless the payment was made as a result of wilful misrepresentation or fraud.
12The onus is on TD to demonstrate that Shirin wilfully misrepresented his involvement in the accident in order to claim entitlement to benefits, and that it followed the proper procedures to claim repayment of a benefit.
Shirin committed an act of material misrepresentation
13I find that the Tribunal’s findings in TD v Shirin demonstrate that Shirin willfully misrepresented his involvement in an accident that he was not involved in, for the purpose of receiving accident benefits from TD. In TD v Shirin, Shirin’s testimony was inconsistent with the other evidence and determined to lack credibility. The decision highlighted various instances where Shirin’s account of the accident differed over time and how his recollection of the accident became clearer as time went on, despite Shirin agreeing in testimony that his account of the incident would likely be more accurate at a time contemporaneous with the accident.
14The Tribunal also found that Shirin’s various accounts of the accident, to assessors and in his testimony, were incompatible with the forensic analyses conducted. Two forensic engineers testified in TD v Shirin and they both agreed that the damage to the vehicles was inconsistent with Shirin’s account of the accident.
15Further, the Tribunal found an adverse inference in Shirin’s failure to call as a witness the driver of the vehicle he claimed to be in at the time of the accident. The driver of the vehicle could confirm or deny Shirin’s recollection of the accident and the moments immediately before. Yet, the driver was never summoned as a witness. As a result, the Tribunal determined that Shirin’s failure to call the driver of the vehicle as a witness to be an implied admission that the missing evidence would be contrary to or unsupportive of the Shirin’s evidence.
16The totality of findings in TD v Shirin cause me to conclude that Shirin was not involved in the accident and he materially misrepresented that he was in fact involved in the accident. In his submissions, Shirin never denied that he misrepresented his involvement in the subject accident. Accordingly, pursuant to section 52(3) of the Schedule, TD is permitted to seek a repayment more than 12 months after the payments were made due to Shirin’s misrepresentations.
Did TD comply with section 52 of the Schedule?
17I find that TD complied with section 52 of the Schedule when it requested a repayment of benefits by way of letter dated March 25, 2020.
18Section 52(2) requires TD to provide written notice of the amount that is required to be repaid. TD complied with section 52 when it sent Shirin a letter dated March 25, 2020, requesting a repayment of medical and rehabilitation benefits in the amount of $23,569.91. In the letter, TD unequivocally demands that Shirin repay the amounts by April 20, 2020. The letter goes on to ask Shirin to contact TD if he wishes to arrange a repayment schedule.
19Having given notice to Shirin of the benefit and amount to be repaid, TD has complied with section 52(2) of the Schedule and Shirin is liable to repay the benefits paid to him on account of his material misrepresentation.
Is Shirin liable to repay benefits paid to third-party service providers?
20I find that Shirin is liable to repay benefits paid to third-party service providers.
21Shirin submits that he is not liable to repay benefit payments made to third-party providers. He submits that section 52 should be interpreted strictly, where paid to the person does not include “paid on behalf of the person”. TD disagrees and submits that the caselaw submitted by Shirin is out of date and that the Tribunal has previously ordered, and can and should continue to order the repayment of medical benefits to an insurer where the payments were made due to wilful misrepresentation. It submits that it only made payments for medical benefits for Shirin because he had wilfully misrepresented that he was involved in an accident.
22I find that the caselaw submitted by Shirin is unpersuasive and conclude that Shirin is liable to repay benefits paid to third parties. The cases provided by Shirin are all from the Financial Services Commission of Ontario (“FSCO”). FSCO was the venue for dispute resolution prior to the establishment of the Automobile Accident Benefit Service at the Tribunal. FSCO decisions are parallel to Tribunal decisions and are not binding on the Tribunal. Likewise, the cases submitted by TD are Tribunal decisions, which are also not binding on the Tribunal. As a result, I find no caselaw binding me on an interpretation of section 52 of the Schedule.
23Nevertheless, I find the contemporaneous Tribunal decisions to be more persuasive than the FSCO cases provided by Shirin because they are consistent with the intentions of section 52 of the Schedule, which entitles TD to a repayment of benefits paid on account of Shirin’s misrepresentations. The contemporaneous Tribunal decisions found that claimants were liable to repay medical and rehabilitation benefits, regardless of whether the payments went directly to third-party service providers. For example see: Aviva General Insurance Company v. Ghandahari, 2021 CanLII 18913 (ON LAT) and Wadare v Certas Home and Auto Insurance Company, 2023 CanLII 74634 (ON LAT).
24Moreover, I find that Shirin’s interpretation and/or application of section 52 of the Schedule causes an illogical result. The result of Shirin’s position, if applied, would be that the Respondent is liable to pay third-party service providers for goods and services obtained only due to the misrepresentations of insured persons. It is illogical to consider that the intention of the legislature was to limit an insurer’s ability to claim repayment if benefits were paid directly to third-party service providers. Here, the benefits were paid to third-party services provides solely based on Shirin’s misrepresentation. It follows that his liability to repay the benefits remains, despite the payments being rendered directly to the service provider.
25Accordingly, I find that Shirin is liable to repay to TD, the benefits paid to third-party services providers on account of his misrepresentations.
Interest
26Interest applies on the payment of any overdue repayment of benefits pursuant to section 52(5) of the Schedule. Having determined that TD is entitled to a repayment of benefits, it follows that it is also entitled to interest on the overdue payments, calculated at the bank rate in effect on the 15th day after the notice was provided.
CONCLUSION AND ORDER
27Shirin misrepresented his involvement in the accident of June 27, 2018.
28TD is entitled to a repayment of all benefits paid to Shirin as they were made on account of his misrepresentations.
29TD is entitled to interest pursuant to section 52 of the Schedule.
Released: October 31, 2024
__________________________
Brian Norris
Adjudicator