Citation: Definity Insurance Company v. Amare, 2024 ONLAT 22-013248/AABS

Licence Appeal Tribunal File Number: 22-013248/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:

Definity Insurance Company

Applicant

and

Addisalem Amare

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Applicant: Mirsa Duka, Counsel

For the Respondent: Addisalem Amare (self-represented)

Heard by way of written submissions

OVERVIEW

1Definity Insurance Co. (the “insurer”) seeks repayment of medical and rehabilitation benefits paid to Addisalem Amare (“Amare”). Amare was involved in an automobile accident on April 9, 2018, following which he claimed medcial and rehabilitation benefits from the insurer for his injuries.

2Amare submitted an application for accident benefits (OCF-1) to the insurer on May 4, 2018 and the insurer began paying accident benefits totalling $15,764.81 between May 17, 2018 and March 27, 2020.

3On May 10, 2019, Amare filed an appeal upon the insurer’s denial of some of his accident benefit claims to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) in file number 19-004636/AABS (“19-004636”).

4A case conference in relation to 19-004636 was held on October 23, 2019. In its case conference summary for the case conference, the insurer raised a preliminary issue, submitting that the subject accident did not meet the definition of accident under section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Tribunal ordered a hearing on the preliminary issue.

5The Tribunal issued a preliminary issue decision on October 12, 2022. The Tribunal concluded that the accident described by Amare met the definition of “accident” in the Schedule, but the accident was staged for Amare’s benefit. The Tribunal concluded that staged accidents are excluded from the accident definition and therefore, Amare was not entitled to the accident benefits claimed in his application in 19-004636 and his application was dismissed.

6Based on the Tribunal’s finding in 19-004636, the insurer is now seeking repayment of accident benefits paid to Amare, pursuant to subsection 52(1) of the Schedule. Specifically, it is seeking repayment of $15,764.61 it submits was paid to Amare prior to March 27, 2020, in relation to the subject accident. Amare has not repaid the benefits. The insurer applied to the Tribunal for resolution of this dispute.

ISSUES

7The issues to be determined are:

1. Whether the insurer is entitled to a repayment of $15,764.81 pursuant to subsection 52(1)(a) of the Schedule, relating to its payments to Amare for medical and rehabilitation benefits during the period of May 7, 2018 and March 27, 2020; and

2. If so, whether the insurer is entitled to interest on any overdue repayment of the benefits, pursuant to subsection 52(5) and (6) of the Schedule.

RESULT

8The insurer is entitled to repayment of the $15,764.81, with interest.

ANALYSIS

Insurer is entitled to repayment

9This appeal hinges on whether the subject payments issued by the insurer to Amare were the result of wilful misrepresentation or fraud committed by Amare. I find that the payments were made as a result of wilful misrepresentations by Amare and therefore, the insurer is entitled to repayment.

10Subsection 52(1)(a), of the Schedule is clear in stating that an insured person is liable to repay the insurer for any benefit that is paid as a result of wilful misrepresentation or fraud.

11In this case, the onus lies with the insurer to prove, on a balance of probabilities, that Amare deliberately misrepresented the facts in the accident such that he received medical and rehabilitation benefits he was not entitled to.

12It is evident, based on the payments the insurer initially made to Amare, that the insurer believed Amare’s injuries were caused by a legitimate accident. When it subsequently suspected that the accident was a ruse, it asked for a preliminary issue hearing on whether the accident met the definition of “accident” in the Schedule. The insurer submits that the Tribunal’s decision on the preliminary matter in 19-004635 confirms that the accident was indeed a hoax and that it was staged for Amare’s benefit.

13The insurer submits that staged accidents are excluded from the definition of accident in section 3, and refers me to the Tribunal decision in 19-004636, at paragraph 23:

A staged accident is an incident where an accident is created for the purpose of profit. The Tribunal has determined, and I agree, that a staged accident is an intentional act that is contrary to public policy and section 118 of the Insurance Act, RSO 1990, c I.8, and such an act is excluded from the definition of “accident”.

14The insurer submits that the Tribunal’s decision in 19-004635 rendered a final judgement that Amare misrepresented his account of the incident for his benefit, and that the accident was effectively staged. The insurer submits that the Tribunal’s conclusion in 19-004635 is further supported by its decision in Sonnet Insurance Company v. Mitchell, 2021 CanLII 108361, at paragraph 14, where it defined wilful misrepresentation as “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.”

15The insurer submits that Amare intentionally misrepresented the facts of the accident. It relies on the Tribunal’s conclusions in 19-004635, in particular that that the mobile phone, which was the alleged source of the fire/explosion that Amare reported set off the sequence of events leading to his injuries, had been tampered with, and the numerous inconsistencies with Amare’s testimony found his account of the accident to not be credible.

16The insurer submits that the Tribunal has already provided a final judgment that Amare was not involved in an accident as defined by section 3 because he misrepresented his account of the accident for his benefit. The insurer now seeks an order from the Tribunal for repayment with interest.

17Amare submits that the hearing in 19-004635, and his subsequent request that the decision in 19-004635 be reconsidered (Reconsideration Decision 19-004635 issued October 17, 2022), were both violations of the rules of procedural fairness and natural justice.

18He disagrees with the decision in 19-004635 because he submits the Tribunal excluded important evidence that, if considered, would have resulted in a different outcome. Amare submits that he is now seeking to introduce new evidence in relation to 19-004635, but he has not referred me to any new evidence in his submissions.

19I find that Amare’s submissions in his affidavit of September 8, 2023 are an attempt to relitigate the issues before the Tribunal in 19-004636 and restate his objections to both the decision and the denied request for reconsideration. For example, he states at paragraph 11 and 12, “Adjudicator Brian Norris conclude[d] the accident was staged. This is morally and psychologically … wrong. Therefore I am not accepting his decision and the second appeal decision to give them privilege and get away with it.” Amare seeks the dismissal of this application on the basis that the claim for repayment relies on what he considers to be an unjust decision of the Tribunal in 19-004636.

20I find the insurer has met its burden to prove, on a balance of probabilities, that it is entitled to repayment.

21Based on the Tribunal’s findings and decision in 19-004636, which I accept, I find that Amare misrepresented the facts of the accident to his insurer, and these misrepresentations resulted in his collecting payments for benefits to which he was not entitled. While Amare is attempting to relitigate these findings, I find that his submissions are not persuasive in demonstrating why the insurer is not entitled to repayment. I find that his submissions simply indicate that he does not agree with the Tribunal’s determination that he was not in an accident. The Tribunal made that determination with facts and evidence that are not before me. This appeal is not a means for Amare to relitigate the Tribunal’s judgement on the previous question.

22I further find that the insurer provided a detailed list of the payments made to Amare between May 2018 and March 2020 for various claims on OCF-18, OCF-3 and OCF-6 forms, and included copies of the Standard Benefit Statements which correspond to those payments. Amare’s submissions made no mention or acknowledgement of whether he received the subject payments from the insurer. He did not confirm or deny that he received them. Therefore, based on the evidence before me, I conclude that the subject payments were received by Amare.

23In light of the findings in the Tribunal’s decisions in 19-004636, I find the insurer is entitled to repayment because the Tribunal has found that Amare engaged in misrepresentation and was not in an accident as defined by the Schedule. Further, the insurer has supported its claim with documents and previous Tribunal decisions that demonstrate Amare received payments to which he was not entitled. In my view, Amare’s submissions amount to objections to the decision in 19-004636. Given that the Tribunal has already determined this issue, I find that these submissions are not a basis for finding the insurer is not entitled to a repayment.

Interest

24Since I have found that repayment is owed to the insurer, interest on the repayment is also owed to the insurer.

25The insurer is entitled to interest pursuant to subsection 52(5) of the Schedule.

ORDER

26Pursuant to section 52 of the Schedule, the insurer is entitled to repayment of medical and rehabilitation benefits of $15,764.81, plus applicable interest.