Sooriyaperuman v. Certas Home and Auto Insurance Company, 2024 CanLII 77426

Citation: Sooriyaperuman v. Certas Home and Auto Insurance Company, 2024 ONLAT 23-005058/AABS

Licence Appeal Tribunal File Number: 23-005058/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:

Nivarsan Sooriyaperuman

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Nivarsan Sooriyaperuman, Applicant Kauvsegan Ehamparam, Paralegal

For the Respondent: Jenna Repath, Claims Advisor Jonathan Schrieder, Counsel

Court Reporters: Paula Monahan Bruce Porter

HEARD: by Videoconference: May 22 to May 23, 2024

OVERVIEW

1Nivarsan Sooriyaperuman, the applicant, claims he was involved in an automobile accident on July 11, 2022, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES

2Was the applicant involved in an "accident" as defined under the section 3(1) of the Schedule?

ISSUES

3The substantive issue in dispute is:

i. Is the respondent entitled to a repayment of $2,565.00 plus interest relating to its payment of a medical rehabilitation benefit during the period of August 3, 2022, to October 24, 2022?

RESULT

4The applicant was not involved in an "accident" as defined in the Schedule and is not entitled to claim statutory accident benefits.

5The respondent is entitled to a repayment of benefits paid to the applicant as a result of his wilful misrepresentation or fraud, pursuant to s. 52(1)(a) of the Schedule. The quantum of the repayment is $2,315.00 plus interest in accordance with s. 52(5) of the Schedule. The respondent is not entitled to $250.00 described as pre-payment for medical records.

PROCEDURAL ISSUES

6By way of Motion Order dated May 16, 2024, this Tribunal ordered all issues to be removed except whether or not the applicant was involved in an accident. In the Motion Order the Tribunal noted the Notice of Motion filed by the applicant on May 13, 2024 was on consent.

7At the beginning of this hearing, both parties agreed that the motion was not on consent and as a result the issue of repayment as listed in the case conference report and order had not been withdrawn on consent as suggested by the Motion Order. The parties confirmed that the issue of repayment was a live issue to be decided at the hearing.

ANALYSIS

The applicant was not involved in an "accident" as defined in s. 3(1) of the Schedule.

8I find that the applicant was not involved in an "accident" as defined in s. 3(1) of the Schedule. The applicant failed to satisfy his burden of proof required to establish that he was involved in an "accident".

9An "accident" is defined in s. 3(1) of the Schedule as "an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device". The Ontario Court of Appeal set out the test for determining whether there has been an "accident" under the Schedule in Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) at paragraph 10. The test has two parts:

i. Did the incident arise out of the use or operation of an automobile? ["the purpose test"]; and if so,

ii. Did such use or operation of an automobile directly cause the impairment? ["the causation test"].

10Both the purpose test and the causation test must be met for an incident to be considered an "accident".

The Purpose Test

11I find that the applicant meets this branch of the test. On a balance of probabilities, the applicant has persuaded me that he was a front seat passenger in a Honda Civic that was being driven by his friend down the street approaching an intersection. Both parties agree that the Honda Civic was struck from the rear and this is confirmed by an expert collision reconstruction report dated October 19, 2022 furnished by the respondent.

The Causation Test

12In order for the applicant to succeed on the causation branch of the test, he must convince me of the following:

i. that an impairment exists,

ii. that the impairment was caused by the incident, and

iii. that the cause is direct.

13As outlined in Shakur v. Pilot Insurance Co. (C.A.), 1990 CanLII 6671 (ON CA), the evidentiary onus is on the applicant. The Court of Appeal stated that "it is fundamental insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy." In the application before me, the respondent's denial that an "accident" occurred in no way shifts the basic burden of proof resting upon the applicant.

i. Does an impairment exist?

14I find that the applicant failed to prove on a balance of probabilities a necessary element of the causation test, specifically failing to prove that an impairment exists.

15The applicant failed to direct me to any medical evidence that the incident caused any impairment. I find the applicant's testimony difficult to accept as it relates to any alleged impairment as summarized below.

16I do not accept that the applicant was a seat belted front seat passenger who hit his head and nose on the glove box, lost consciousness for a minute or so and suffers from back, neck and shoulder pain.

17The applicant's testimony of being seat belted is refuted by the electronic data from the vehicle which was relied upon in the uncontroverted expert report confirming that the front seat passenger was not wearing a seat belt.

18I do not accept the applicant's testimony that he hit his head and nose on the glove box because he testified there was no bruise, bump or nosebleed from this impact and because no medical evidence was relied upon to support this claim.

19I do not accept the applicant's testimony that he was unconscious for a minute or so because he also testified that while he was unconscious his friends had left him to head towards a nearby parking lot on foot. There was no evidence of concern for him as he allegedly remained unconscious in the passenger seat by his friends. More importantly, there was no evidence of concern or care provided to him by first responders who the applicant testified had arrived and were directing involved individuals while the applicant allegedly remained unconscious. I do not accept his testimony that during this very short interval of a minute or so after impact first responders had arrived and had begun directing everyone involved to walk towards and gather at a nearby parking lot.

20The applicant did not rely on any documentary evidence, medical records or otherwise, and solely relies on his own testimony. The applicant filed a 610-page hearing brief but did not refer to it. He failed to support his claim that he suffers from back, neck and shoulder pain and failed to establish that any impairment exists.

21He testified that he had three friends in the vehicle with him that were involved in the incident. While the driver of the vehicle was listed as a witness in the applicant's final witness list, he did not testify and nor did any of the other alleged involved individuals. No explanation was provided for this.

22It is the applicant's onus to prove on a balance of probabilities that he was involved in an "accident". For reasons provided above, the applicant has failed to meet his burden to demonstrate that the subject incident in question is an "accident" within the meaning of the Schedule.

The respondent is entitled to a repayment of benefits paid to the applicant.

23I find that the respondent is entitled to a repayment of benefits paid to the applicant because the insurer paid these benefits as a result of the applicant's wilful misrepresentation.

24The onus is on the respondent to establish that there was misrepresentation, and that the misrepresentation was wilful. The Tribunal, in 17-000272 v T.T., 2017 CanLII 87539 (ON LAT) at paras. 21-22 has defined "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." The Tribunal has also held that "silence or a failure to report" can constitute misrepresentation. The Tribunal has accepted "willful" to mean "a deliberate or intentional action" at paragraph 16 of Primmum Insurance Company v Baley-Daley, 2015 CanLII 154395 (ON LAT).

25In addition, the Tribunal has decided at paragraph 19 of Homanchuk v TD General Insurance Company, 2022 CanLII 27244 (ON LAT) that an insurer, in this case the respondent, must also establish that the benefits it is seeking to be repaid were originally paid as a result of this wilful misrepresentation.

26The respondent argues the applicant has been inconsistent in his reporting to the extent of wilful misrepresentation regarding material facts which yielded payment of benefits that it is seeks repayment of.

27The expert evidence relied upon by the respondent contradicts the applicant's recounting of the incident. The applicant's testimony also contradicts his own previous statements and does not offer any clarity as to what occurred that day other than there being an impact between two vehicles. I find that the applicant was an unreliable narrator of the events of that day including what happened prior to and after the incident. In large part, the inconsistencies that became apparent during the hearing are immaterial to this issue. I am not persuaded they are relevant or material to the respondent making payment for the relevant benefits. However, further analysis is required.

28The respondent's notice to the applicant requesting repayment, as contemplated by the Schedule, dated April 12, 2023 provides as follows:

i. "Pursuant to Section 52 (1) & (2) of the Schedule, I herby give notice that the following payments have been made on your behalf, for which we are seeking re-payment:

ii. Medical Rehabilitation Benefit: $2,315.00 from August 3, 2022 to October 24, 2022.

iii. Pre-payment for medical records: $250.00 on August 12, 2022 (for documents not provided).

iv. In total, we have paid $2,565.00 and pursuant to S.52 (1) & (2), we are seeking a full reimbursement."

29I am persuaded by the respondent that the applicant made specific wilful misrepresentations that were material and relied upon by the respondent in paying some of the amounts it seeks repayment of. I find that the applicant wilfully misrepresented that he was wearing a seat belt, that he hit is head and nose on the glove box and that he lost consciousness. In my view, these wilful misrepresentations relate sufficiently to the medical benefits paid in the amount of $2,315.00 from August 3, 2022 to October 4, 2022. I find that pre-payment for medical records is not covered by s. 52 (1) of the Schedule because it cannot be said to be a benefit paid to the applicant.

30The applicant testified that the explanation for his inconsistent and unclear testimony was that he and his friends had been smoking marijuana prior to departing from his home in the Honda Civic to eat at a Chinese buffet-style restaurant. I note there was no credible evidence confirming if the applicant was under the influence of marijuana on the day of the incident. No expert evidence was furnished by the applicant as to what effect, if any, smoking marijuana would have on the applicant's ability to provide clear, certain or consistent recollection of the incident and its surrounding events. I am not persuaded that smoking marijuana prior to the incident would excuse or explain away the specific wilful misrepresentations discussed in the previous paragraph. The respondent argues the totality of the applicant's inconsistent and unclear evidence puts into question whether he was in fact in the vehicle at the time of the incident.

31In assessing the applicant's testimony, I considered factors including the applicant's ability and opportunity to observe, consistency, level of clarity and the reasonableness of his testimony and examination under oath together with all of the evidence. I find the applicant's testimony and statements to be inconsistent, unclear, unreasonable and not credible. In my view, the applicant wilfully misrepresented the details surrounding the incident but I was not persuaded on a balance of probabilities that the applicant was not in the Honda Civic at the time of the incident.

32In addition to the above, I make an adverse inference for the applicant's non-compliance with an undertaking from February 2023 to provide the applicant's cell phone records for the 24-hour periods before and after the incident. From the respondent's perspective, this was key evidence that would have confirmed the applicant's location and would have provided information about other aspects surrounding the incident. However, seen together, the evidence offered during the hearing and this negative inference falls short of establishing on a balance of probabilities that the applicant was not in the Honda Civic. Even if I had been convinced that the applicant was at a different location and not in the Honda Civic at the time of the incident, I would not have ultimately reached a different result in this decision.

33Lastly, the respondent argued that the evidence showed attempts by the alleged occupants of the Honda Civic to dilute or misrepresent the connection of the alleged rear passengers with the auto body shop and car rental establishment. I note that if any misrepresentations were made specific to these relationships, the evidence pointed to individuals other than the applicant as having allegedly made them. I also note that I did not have the benefit of hearing from the driver or any of the other friends that were allegedly involved.

34I find that the respondent satisfied the requirements found in s. 52(1)(a), 52(2)(a) and 52(3) of the Schedule. Specifically, that it:

i. made the payment(s) during the period of August 3, 2022 to October 4, 2022,

ii. that the payments were made as a result of wilful misrepresentation by the applicant,

iii. that the insurer gave notice to the applicant of the amount that is sought to be repaid, and

iv. that it did so in a letter dated April 12, 2023, and

v. while this notice was within 12 months after the payments were made, there is no time limit prescribed for notices relating to payments originally made as a result of wilful misrepresentation.

35The quantum of the repayment is of $2,315.00 plus interest in accordance with s. 52(5) of the Schedule.

ORDER

36For the reasons above, I Order as follows:

i. The applicant was not in an "accident" as defined by the Schedule.

ii. The applicant is ordered to repay the respondent $2,315.00 plus interest in accordance with s. 52(5) of the Schedule as a result of wilful misrepresentation.

iii. The application to the Tribunal is otherwise dismissed and the Tribunal file is closed.