Licence Appeal Tribunal File Number: 23-003192/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 Company
Applicant
and
Thuany Peixoto Oliveira
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Jonathan Schrieder, Counsel
Jenna Repath, Adjuster
For the Respondent:
Did not attend
Court Reporter:
Rana Sarhan
Heard by Videoconference:
April 15, 2024
OVERVIEW
1Thuany Peixoto Oliveira, the respondent, claimed she was involved in an automobile accident on October 28, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) from the applicant Certas Home and Auto Insurance Company.
2The applicant submits that the respondent made material misrepresentations in describing the circumstances surrounding the incident on October 28, 2020, and that the reported incident is not an accident as defined by the Schedule. The applicant has paid income replacement and medical rehabilitation benefits in the amount of $54,011.01 and is seeking repayment of these benefits with interest.
ISSUES
3The issues in dispute are:
i. Was the respondent involved in an “accident” as defined by s.3(1) of the Schedule?
ii. Is the applicant (insurer) entitled to a repayment of $54,011.01 ($25,668.15 relating to its payment of medical rehabilitation benefits for the period November 3, 2020, to March 9, 2022, and $28,342.86 relating to its payment of income replacement benefits for the period November 5, 2020, to March 15, 2022)?
iii. Is the applicant entitled to interest on any overdue repayment of benefits?
RESULT
4For the reasons that follow, I find that the respondent was not involved in an accident as defined by s.3(1) of the Schedule and misrepresented material facts relating to the reported incident. Further, I find that the applicant is entitled to repayment of $54,011.01 in accident benefits paid to date. The applicant is entitled to interest on any overdue repayment of benefits.
5The applicant paid the respondent income replacment and medical benefits in relation to the alleged accident of October 28, 2020.
6The applicant submitted that after providing Ms. Oliveira with payment for her accident-related benefits, it determined that the applicant’s alleged accident did not fall within the definition of such, based on s.3(1) of the Schedule.
7The applicant is now seeking repayment of benefits paid due to misrepresentation of facts regarding the October 28, 2020 incident.
8The applicant takes the position that the accident did not take place and reports of the accident are wilful misrepresentation of material facts.
9The respondent has not made any substantive submissions or entered any evidence to counter the decisions, evidence or submissions of the applicant.
Proceeding WITH THE HEARING WitHout the Respondent
10For the reasons that follow, I am satisfied that I may proceed with this hearing in the absence of the respondent, pursuant to s. 7(3) of the Statutory Powers Procedure Act.
11The respondent did not attend the hearing:
i. At 9:30a.m. Monday April 15, 2024, the hearing room was opened for pre-hearing discussions with the parties. The respondent was not present. Following a brief discussion regarding procedural matters, a 30-minute recess was called to explore the whereabouts and intentions of the respondent.
ii. At 9:45a.m. Monday April 15, 2024, I requested that the case management office reach out to the respondent. Calls and emails went unanswered.
iii. Reviewing the case file and submissions to date I find:
a. that the respondent’s email, and phone contact details have remained the same from the initial filing on March 21, 2023, to date (mailed correspondence from the Licence Appeal Tribunal (“LAT”) to the respondent was returned to sender with the notation “no longer lives here”).
b. that no emails from the LAT to the respondent have been returned as undeliverable.
c. that the respondent submitted a “Response by Injured Person regarding Insurance Company’s Application for Auto Insurance Dispute Resolution” which submitted that this action was unfair and did not answer or provide alternative explanations to the applicant’s application or submissions.
d. that the respondent participated in the case conference, held September 27, 2023 (and therefore received notice at the aforementioned email address).
e. As the applicant was prepared, having found that the respondent had proper notice of the hearing, the hearing began at 10:18 a.m.
IS IT AN ACCIDENT?
12The respondent bears the onus to prove there was an accident and that she is entitled to the income replacement and rehabilitation benefits she has been paid.
13Section 53(a) of the Schedule establishes that the insurer is not required to pay benefits if the insured person has misrepresented material facts with respect to the application for benefits.
14The applicant submits that the respondent made material misrepresentations regarding the incident on October 28, 2020, and that the respondent was not involved in an accident as defined by the Schedule and relies on the respondent’s application for accident benefits, the applicant’s correspondence with the respondent, Adjuster J. Repath’s testimony, and the expert report and testimony of W. Jennings.
15The respondent has presented no evidence, made no substantive submissions and provided no explanation to the complaint by the applicant that she was not involved in an accident on October 28, 2020.
16The respondent has been informed of and provided opportunities to make submissions to counter the claims made by the applicant; The applicant submits that a negative inference should be made as the respondent is not in attendance and has mounted no defence. I agree with the applicant and have drawn a negative inference by the fact that the respondent has made no substantive submissions, not called the other two alleged occupants of the vehicle, has offered no explanation to the charges of the applicant and has not attended the hearing.
17The respondent contacted the applicant on October 30, 2020 and informed the insurer that she had been in an accident on October 28, 2020; the insurer opened a claim for Ms. Oliveira and provided income replacement and medical rehabilitation benefits for treatment of reported injuries.
18The applicant called Jenna Repath, the insurer’s appointed adjuster, who testified that she began to suspect the accident did not occur as reported when a property damage report was filed and showed minimal bumper damage and a shattered rear window, which is not what would be anticipated from the reports of the accident. In particular, it seemed strange to Ms. Repath to have had a passenger in the back seat that would have been covered in shattered glass. In addition, materials submitted in support of the income replacement claim, pay stubs from GIG Cleaning, seemed out of the ordinary; internal investigations with Certas were informed and an investigation began.
19Ms. Oliveira was informed in writing of the reasons for an investigation and an examination under oath was arranged and scheduled to occur in July of 2022; the respondent did not attend the examination.
20The applicant called William Jennings, P.Eng. and submitted his curriculum vitae in support of his expert status in auto crash reconstruction. I accept that Mr. Jennings is an expert in auto crash reconstruction.
21In summary, Mr. Jennings testified and demonstrated that the vehicles Ms. Oliveira claims were involved in the October 28, 2020, incident had never touched and specifically that:
i. The damage to the respondent’s car was not as a result of being rear-ended as claimed.
ii. The damage to the front of the other car alleged to have been involved was not as a result of rear-ending the respondent’s car or any car.
iii. The damage to the two cars does not align in any way.
iv. The collision recording monitor attached to the air bag system in the respondent’s car does not show any collision occurred during operation of the vehicle.
22I accept Mr. Jennings’ evidence and find that the accident as described by the respondent did not, in fact, occur and that the respondent misrepresented material facts in their application for accident benefits when she reported an accident to the applicant.
Repayment of Benefits.
23Section 52(1)(a) of the Schedule states that a person is liable to repay an insurer if any benefit described in the Schedule is paid to a person as a result of an error on the part of the insurer, the insured person or any other person, or if it is as a result of wilful misrepresentation or fraud.
24Section 52(2) of the Schedule states that if a person is liable to repay an amount to an insurer, the insurer shall give the person notice of the amount that is required to be repaid.
25Section 52(3) of the Schedule requires the insurer to give written notice of repayment within 12 months after the payment of the amount is to be repaid, unless the amount was paid as a result of a wilful misrepresentation or fraud.
26For the reasons set out above, I find that the respondent wilfully misrepresented material facts regarding the incident of October 28, 2020.
27As per s. 52(2)(a) of the Schedule, the applicant has made a request for repayment; Ms. Oliveria was informed December 7, 2022 of the conclusions of the Certas investigation and repayment of benefits paid was requested.
28I find that the applicant has provided the respondent with proper notice of the amount that is required to be repaid.
29I find that the applicant was induced into paying $25,668.15 of medical rehabilitation benefits for the period November 3, 2020, to March 9, 2022, and $28,342.86 relating to its payment of income replacement benefits for the period November 5, 2020, to March 15, 2022, based on the misrepresentation of material facts and that the respondent was not involved in an accident as defined by the Schedule.
30I find that the applicant is entitled to repayment in the amount of $54,011.01 in accident benefits paid to date.
Interest
31Section 52(5) of the Schedule states that an insurer may charge interest on the outstanding balance of the amount to be repaid for the period, starting on the 15th day after the notice is given under s. 52(2) of the Schedule, and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice under s. 52(2) of the Schedule was given.
32I find that interest applies on the repayment of benefits pursuant to s. 52(5) of the Schedule.
ORDER
33I order that the applicant is entitled to repayment by the respondent of $54,011.01 in accident benefits paid to date. Further, I order that the applicant is entitled to interest on the amounts it paid in benefits in accordance with the Schedule.
Released: June 12, 2024
__________________________
Timothy Porter
Adjudicator