Licence Appeal Tribunal File Number: 22-013602/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:
Taeme Tegbaru
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Erin M. Neal, Counsel
For the Respondent:
Aly Pabani, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Taeme Tegbaru, the applicant, was involved in an automobile accident on May 6, 2019, 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, Intact Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issue to be decided is:
a) Is the applicant barred from proceeding with his claim for income replacement benefits pursuant to section 31(1)(b) of the Schedule?
RESULT
3I find that the applicant is not barred from proceeding with his claim for income replacement benefits.
ANALYSIS
Background and Parties’ Positions
4The applicant was involved in an automobile accident on May 6, 2019. The Motor Vehicle Accident report, OCF-1 dated June 3, 2019, and various tax documents indicate that the applicant’s address at the time of the accident was in Toronto, Ontario. However, the applicant’s address as listed on his insurance policy, was identified as being in Kitchener, Ontario.
5The respondent submits that the applicant intentionally failed to disclose his move from Kitchener to Toronto. It argues that by failing to notify the insurer of this change in address, the applicant paid reduced annual insurance premiums, of approximately 20%. The respondent contends that the applicant may have been living in Toronto as early as 2018, based on his banking records, tax returns and notices of assessment for 2018 and 2019 and a residential ownership search, which indicates that the Toronto property was purchased on November 3, 2017. It submits that at a minimum, the applicant conceded in his Examination Under Oath (“EUO”) that he had moved to Toronto prior to the accident, in “the beginning of 2019” or March of 2019.
6The respondent further submits that the applicant’s insurance policy went through a number of policy and premium changes both pre and post-accident and that the applicant had numerous opportunities to notify the respondent of the move. It submits that the applicant’s move from Kitchener to Toronto represents a change in material risk to the contract of insurance, and that his intentional failure to notify the respondent of his address change precludes the applicant from pursuing his claim for income replacement benefits.
7The applicant does not dispute that he had moved to Toronto prior to the subject accident. He relies on his EUO in support of his claim that he had moved to Toronto in March of 2019, but disputes that he lived in his Toronto home in 2018, arguing that he had continued to live in Kitchener while the Toronto home was undergoing renovations. The applicant argues that he was clear in his documentation post-move that his residential address was in Toronto, referencing the OCF-1, OCF-3 and various tax filings.
8Rather, the applicant argues that he did not intentionally fail to notify the respondent of his change in address. He relies on his EUO testimony where he stated that he was not aware that he had to inform the insurer of his move, or that there was a difference in premiums, but that regardless, he had informed his insurance broker of the address change. The applicant submits that it was his understanding that the broker would inform the adjuster of the move. The applicant further argues that he had listed his Toronto address in his OCF-1 submitted June 26, 2019. However, the respondent did not request an EUO or raise the issue of his address until almost two years later. Finally, the applicant submits that the policy and premium changes post-move were automatic, and did not require an update from the applicant.
The Law
9Section 31(1)(b) of the Schedule provides that an insurer is not required to pay an income replacement benefit, in respect of any person who intentionally failed to notify the insurer of a change in a risk material to the contract.
10Materiality is not defined in the Schedule. The Court of Appeal in Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 288 held that a fact is relevant or material if it influences an insurer in deciding whether to issue the policy or with determining the premium amount. I find that consistent with Sagl, the applicant’s change of address resulting in an increase in premiums, was a material risk to the contract. This is consistent with the reasoning in Jevco Insurance v. Owusu-Achiaw, 2021 CanLII 18941 (ON LAT), cited by the respondent.
11However, pursuant to s. 31(1)(b) of the Schedule, the respondent further bears the onus to prove that the applicant intentionally failed to notify the respondent of this material change.
Was the applicant’s failure to disclose “intentional”?
12I find that the respondent has not met its burden to prove that the applicant intentionally failed to disclose his move from Kitchener to Toronto.
13The applicant does not dispute that he had moved to Toronto prior to the accident. However, he submits, and testified in his EUO, that he had informed his broker of this move, and that he believed that his broker would inform the adjuster of the change in address. He further testified that he was unaware that he was required to inform the respondent of the change of address or that the move from Kitchener to Toronto would result in a large difference in insurance premiums.
14Although the respondent disputes that the applicant informed his broker of the move, I am not persuaded by the evidence led by the respondent. In support of its position, the respondent relies on an email summary dated August 4, 2023 from Intact, which provides a very brief description of the calls between the applicant and BrokerLink in 2019. This email summary lists four telephone calls in 2019 and has two sentence summaries for each call, which include that there was “no mention of address or address change”. However, no additional information was provided.
15I agree with the applicant that the respondent bears the evidentiary onus to prove a material misrepresentation. I do not find that the cursory summary of telephone calls, four years after the calls were placed, is sufficient evidence of the details of the 2019 telephone calls. I further agree with the applicant that the respondent could have submitted call logs or recordings of the calls, in support of its claim that the applicant had not mentioned an address change to his broker in 2019. No such evidence has been provided by the respondent. The applicant relies on his testimony in his EUO in support of his claim that he informed his broker that he had moved to Toronto. The respondent has not led sufficient evidence to refute the applicant’s testimony under oath.
16I further note that the documentation submitted by the applicant to the respondent after his reported March 2019 move, including the OCF-1 and OCF-3, properly referenced his Toronto address. I find that this supports the applicant’s position that there was no intentional failure to inform the respondent of his change in address.
17Finally, I find that the decisions cited by the respondent, Jevco Insurance v. Owusu-Achiaw, 16-004349 v. Mr. P., 2017 CanLII 148395 (ONLAT), and Phillip v. Intact Insurance Company, 2021 CanLII 96936, are distinguishable. In Jevco v. Owusu, the insured did not file any submissions to refute the insurer’s allegations of material misrepresentation. Further, in Owusu the adjudicator expressly noted that the insured continued to misrepresent his address after the accident, even upon questioning by the insurer. In the matter at hand, the applicant has been clear, even upon questioning at his EUO, that he moved to Toronto in March 2019.
18Further, I agree with the applicant that 16-004349 is distinguishable, as in that case, the claimant only stated that he had “attempted” to speak with his broker, which the Tribunal found was “suspect”. In the present case, the applicant testified at his EUO that he had informed his broker of his address change. The Tribunal further found in 16-004349 that since the claimant was an accident benefits paralegal and was a reasonably sophisticated party, he would have known that the change in question was important information which the insurer lacked.
19Finally, in Phillip v. Intact Insurance the adjudicator expressly noted credibility issues with the claimant. It was noted that the claimant had provided conflicting evidence at his EUO, and that he had admitted that he was not truthful during a phone call with the insurer. This can be distinguished from the matter at hand, where the applicant has not provided conflicting evidence.
20As such, I find that the respondent has not met its onus to prove that the applicant intentionally failed to disclose material information.
conclusion and order
21The applicant is not statute-barred from proceeding with his claim for income replacement benefits.
22The matter will proceed to the substantive hearing.
Released: January 3, 2024
Ulana Pahuta
Adjudicator