Certas Home and Auto Insurance v. Agyemang, 2024 CanLII 129

Certas Home and Auto Insurance v. Agyemang

Citation: Certas Home and Auto Insurance v. Agyemang, 2023 ONLAT 22-004071/AABS

Licence Appeal Tribunal File Number: 22-004071/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 Home and Auto Insurance

Applicant

and

Christabelle Agyemang

Respondent

DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: Eric B Heath, Counsel Sia Vatanchi, Counsel

For the Respondent: No one appeared

Court Reporter: Breana Clancy

HEARD: by Videoconference: November 14, 2023

OVERVIEW

1Christabelle Agyemang, the respondent, was involved in an incident on October 4, 2019, and sought benefits from the applicant Certas Home and Auto Insurance Company (“Certas”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Certas paid certain benefits to the respondent or on her behalf for an income replacement benefit and medical benefits for both treatment and the cost of assessments.

2An investigation of the automobile collision reported by the respondent concluded that the accident did not occur as she reported. Based on this, Certas provided notice to the respondent that it is seeking repayment of all benefits paid, plus interest, on the basis of willful misrepresentation under section 52 of the Schedule.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are:

1. Is the applicant entitled to a total repayment of $47,942.86 relating to its payment of the following: i. $26,342.86 for income replacement benefits for the period of October 10, 2019, to November 11, 2020? and ii. $21,600.00 for medical benefits paid for the period October 4, 2019, to November 11, 2020?

2. Is the applicant entitled to interest on any overdue repayment of benefits?

RESULT

4After considering the testimony of the witnesses and reviewing the evidence I find:

1. The applicant is entitled to a repayment of benefits in the amount of $47,942.86 under section 52(1) of the Schedule.
2. The applicant is entitled to interest on the outstanding balance to be repaid.

PROCEDURAL ISSUES

Hearing to proceed without the respondent.

5I find the respondent was served ample notice of this application, case conferences and the videoconference hearing. I therefore ordered the hearing to proceed in the absence of the respondent.

6Section 7(3) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (“SPPA”) states: [w]here notice of an electronic hearing has been given to a party to a proceeding in accordance with this Act and the party neither acts under clause 6 (5) (c) nor participates at the hearing in accordance with the notice, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

Notice to respondent of proceedings:

7Through a transcript of the applicant’s Examination Under Oath (“EUO”) held January 2020, the respondent confirmed her address to be the same as that on record with the Tribunal. There is no change of address recorded on file for the respondent.

8Certas filed this application with the Tribunal on April 6, 2022, requesting repayment of benefits paid in the amount of $47,942.86. A copy of the Certificate of Service (“COS”) in evidence shows the respondent was personally served with the application on April 11, 2022, at her residence.

9A case conference was held for this matter on January 19, 2023, and the respondent did not appear. On consent, the case conference was adjourned to allow the respondent the opportunity to participate.

10A second case conference was held on April 12, 2023, and again, the respondent did not appear. After a failed attempt to contact the respondent after the start of the conference, the matter was ordered to a two-day videoconference hearing.

11On April 24, 2023, with a follow-up reminder on April 28, 2023, the Tribunal sent the parties a request to select preferred dates for the two-day videoconference hearing ordered by the Tribunal. On May 4, 2023, the applicant contacted the Tribunal to advise that they were unsuccessful in their attempts to contact the respondent to arrange a mutual hearing date. The respondent had also failed to respond to any of the Tribunal’s communications regarding the hearing. The date for the hearing was set without the consent of the respondent.

12I find that the respondent was served with the application and received notice of case conferences and the hearing but has not participated in any conference and has not provided any responding submissions for this hearing.

13For the above reasons, I ordered the hearing to proceed as scheduled.

ANALYSIS

14Section 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. Certas bears to the burden of proving that the benefits were paid to the respondent as a result of wilful misrepresentation or fraud, on a balance of probabilities.

15The Tribunal has adopted the Black’s Law Dictionary definition of “misrepresentation” as “any manifestation of words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.”

16The applicant alleges the respondent was paid benefits because:

• she wilfully misrepresented how and where the accident occurred;
• the persons with her in the vehicle at the time of the accident misrepresented, how and where the accident occurred;
• the accident was staged to the knowledge of the respondent. The applicant submits that the driver of the vehicle in which the respondent was a passenger caused the vehicle to strike a heavy or stationary object either before or after the reported collision took place in an effort to make it appear that the collision was more serious than it was.

Background

17The respondent filed an OCF-1 with Certas regarding this incident. On November 11, 2020, Certas negotiated a full and final settlement of the insurance file for both medical and IRB with the respondent. The final payment to settle the file and the amounts paid to the respondent for benefits up to the date of the settlement are now being claimed for repayment in this application, a total of $47,942.86.

18The vehicle in which the respondent claims she was in at the time of the incident, was insured by Coseco Insurance Company (“Coseco”). Certas, filed a priority dispute against Coseco, claiming the respondent should be claiming benefits from Coseco. Through this dispute, Coseco provided evidence of the investigation of the December 6, 2019, incident by themselves and a third insurer Wawanesa who commissioned an investigation of the accident by Impact Forensics. This investigation report dated May 6, 2020, provided evidence that this incident had not occurred in the manner reported by some persons involved, including the respondent. It was on this basis that Certas started its investigation that has resulted in this hearing and a request for repayment of benefits paid.

Inconsistent reports of the accident

19The respondent described the accident differently to Certas and to medical assessors. She sometimes alleged that there were two impacts in the accident and at other times she said there was only one impact. The fact that the respondent gave different accounts of the accident, supports the applicant's allegation that she is not being truthful with respect to how the accident happened.

The accident as reported at the Self Reporting Collision on October 5, 2019.

20There is evidence to show that Ms. A. Gravesande, the driver of the Dodge SUV occupied by the respondent, and a Ms. T. Kuffour at the time of the incident gave different accounts at the reporting centre as to the number of collisions that occurred (varying from one to two) and how many people were in each of the two vehicles involved. In addition, Ms. Campbell-Allen, the driver of the Honda, the second vehicle involved in this alleged accident, gave a different account of the accident details.

Accident reconstruction report regarding the subject vehicle

21The applicant called Mr. M. Jenkins, engineer, to testify in support of the accident reconstruction report he co-authored. The report completed by Impact Forensics Inc. was completed on May 6, 2020. Mr. Jenkins was qualified as an expert in motor collision investigation and in accident reconstructions. He testified as an expert in accident reconstruction. For reasons stated below, I accept this expert’s opinion that the subject accident did not occur as alleged by the respondent.

22Mr. Jenkins assessed the alleged two-vehicle collision that is the subject of this application. The respondent reported to have been a passenger in the second-row right seat of the 2017 Dodge Journey (“Dodge”) driven by Ms. Gravesande. This is noted and not questioned in the report.

23Mr. Jenkins based his report on photographs of the damaged Dodge, the original damage estimate for repair, and the contents of the vehicle’s Airbag Control Module (“ACM”). The ACM is a microprocessor that controls the operation of the airbags and pretensioners and may record information in the event of a collision. In this case, the ACM indicated that three impacts had exceeded the ‘trigger threshold’ required to record information in the event of a collision. The ACM can only store the last two collision events. The data in the Dodge indicated the last event recorded occurred 78 seconds after the prior event and that neither event commanded the deployment of the airbags. The time between collisions is significantly inconsistent with the description of the accident given by the respondent.

24Mr. Jenkins explained how he recreated a collision simulation using the 3D vehicle collision and dynamics software. For the Dodge, simulated impact speed was based on the data recorded in the ACM and the movement of the second vehicle, the “Honda”, was based on the driver’s self-reporting to the Collision Reporting Centre (“Centre”) of the accident. Based on this computerized re-enactment the expert concluded that the data recorded in the ACM was likely unrelated to a collision between the Dodge and the Honda as reported. Also, this simulation indicated that the first collision event occurred between the Dodge and a vehicle or object that weighed significantly more than the Honda that was reportedly involved. Therefore, the damage was not as a result of a collision between these two vehicles as reported by the respondent.

25Mr. Jenkins concluded that the Dodge recorded two impacts separated by 78 seconds and that the Dodge was accelerating prior to each. The ACM also indicated that the Dodge had reversed and shifted back into ‘drive’ just prior to accelerating forward during the second impact. Furthermore, simulations of the collisions based on the Dodge’s ACM data indicated that the severity of the collision recorded by the Dodge during both impacts was not possible in a collision with the Honda. Mr. Jenkins pointed out the discrepancies in the pictures of the damaged vehicles to show that the damage patterns do not line up to reconcile with the many different accounts of the accident provided by the respondent and others involved.

26In other words, the two most recent collisions recorded by the ACM were different events than the collision between the Dodge and the Honda and those two events involved an object significantly heavier than the Honda, occurred 78 seconds apart, occurred as the Dodge was accelerating forward, and were the cause of most of the damage to the Dodge vehicle.

27Mr. Jenkins compared the distance from the reported crash site to the Centre where the respondent and the driver of the vehicles reported the alleged accident. By calculating the odometer readings from the vehicles, those reported at the Centre and various repair documents, he concluded that the distance traveled by the Dodge is not consistent with the reports of where the alleged collision occurred with a direct route to the Centre. Mr. Jenkins concluded that the last collision event either did not occur where reported by the parties involved, or the vehicle was driven many kilometres in between the time it arrived at the Centre and after the collision was recorded. The respondent noted in one account of the accident that the vehicle was towed directly away from the accident site.

28I accept Mr. Jenkins’ opinion based on the evidence he presented including the accident reconstruction report that the accident did not occur as presented by the respondent.

29In order to claim accident benefits from Certas, the respondent must prove on a balance of probabilities that she was involved in an accident as defined in s.3(1) of the Schedule. The definition of “accident” in s.3(1) of the Schedule means an incident in which the use or operation of an automobile directly caused an impairment. Certas submits that the collision the respondent reported to be involved in on October 4, 2019, was staged. A staged accident does not meet the definition of ‘accident’ as defined in the Schedule. The onus is on the respondent to establish that she was involved in an accident.

30Section 118 of the Insurance Act, RSO 1990, c. I.8 essentially states that a person shall not profit under an insurance policy from that person’s intentional or criminal act.

31I find the evidence provided by Mr. Jenkins and the Impact Forensics report to be persuasive that the respondent was not involved in an accident as she reported and that it is probable that this incident was staged. Accordingly, the respondent has not proven she was involved in an accident as defined in the Schedule.

32On the evidence above, I agree with Certas that on a balance of probabilities the respondent has willfully misrepresented the claim for accident benefits in relation to the incident that allegedly occurred October 4, 2019, and therefore, the respondent is liable to repay the insurer for any benefit paid her in relation to this incident.

33The circumstances, including the fact that the two most recent collisions involving the vehicle in which the respondent was a passenger were 78 seconds apart and were with an object that was significantly heavier than the Honda, and the respondent’s failure to participate in these proceedings leaves little doubt in my mind that she was wilfully misrepresenting the circumstances that led her to apply for accident benefits. Her claiming and receiving benefits from Certas while knowing that she was not entitled, is clearly wilful misrepresentation.

34I find the respondent willfully misrepresented her claim.

Notice of repayment to the respondent.

35If a person is liable to repay a benefit, the applicant is required to give the person notice of the amount required to be repaid.

36Sections 52(2) and (3) 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 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 a result of wilful misrepresentation or fraud.

37Having found that Ms. Agyemang’s applicant for benefits was submitted under false pretences, Certas is not required to give 12 months notice, in accordance with s.52(3) of the Schedule.

38I find Certas is entitled to the repayment of medical benefits and income replacement benefits paid to the respondent as a result of her wilful misrepresentation in her application for benefits.

39According the to application filed with the Tribunal and hand-delivered to the respondent in April 2022, Certas is seeking a repayment of $26,342.86 for income replacement benefits and $21,600.00 for medical benefits paid to the respondent including funds determined through a settlement agreement between the parties signed by the respondent on November 22, 2020. Documents in evidence show the applicant has been sent statements (Explanation of Benefits paid) and settlement documents to support the funds paid to the respondent under this claim that are now ordered to be repaid.

Interest

40Certas may charge interest for the amounts to be repaid in accordance with s. 52(5) of the Schedule.

ORDER

41The respondent was not involved in an “accident” as defined in s.3(1) of the Schedule.

42The respondent engaged in wilful misrepresentation and fraud with respect to her application for accident benefits and therefore she is ordered to repay Certas the amount of $47,942.86 in accordance with s.52(1)(a) of the Schedule.

43Certas is entitled to interest on all amounts owing in accordance with s. 52(5) of the Schedule.