Licence Appeal Tribunal File Number: 23-003188/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
Kahdijah James-Gager
Respondent
DECISION
ADJUDICATOR: Timothy Porter
APPEARANCES:
For the Applicant: Jonathan Schrieder, Counsel
For the Respondent: Kahdijah James-Gager, Respondent (Did not attend)
Court Reporter: Nikita Ivachtchenko
Heard by Videoconference: April 17, 2024
OVERVIEW
1Kahdijah James-Gager, the respondent, claims she was a passenger in a vehicle driven by Thuany Peixoto Oliveira, which was reported to have been in an automobile accident on October 28, 2020; Ms. James-Gager 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 medical rehabilitation benefits in the amount of $10,963.81 and is seeking repayment of these benefits with interest.
PROCEDING WITHOUT THE RESPONDENT
3The respondent did not attend the hearing:
i. At 9:30 a.m. Wednesday April 17, 2024, the hearing room was opened for pre-hearing discussions with the parties. The respondent was not present. Following brief process-related discussions, a 30 minute recess was called to explore the whereabouts and intentions of the respondent.
ii. At 9:40 a.m. Wednesday April 17, 2024 I requested that the case management office reach out to the respondent. Calls and emails to the respondent went unanswered.
iii. Reviewing the case file and submissions to date I find:
The respondent’s contact details on record with the Tribunal have remained consistent throughout the dispute period.
That no emails from the Tribunal to the respondent have been returned as undeliverable.
The notice of electronic hearing was distributed to the contact email address on file on November 24, 2023.
It is the responsibility of parties under LAT Rule 4.4 to notify the Tribunal of any changes in contact information.
4As the applicant was prepared, having found that the respondent had proper notice of the hearing, the hearing began at 10:10 a.m.
ISSUES
5The 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 $10,963.81 relating to its payments of medical rehabilitation benefits for the period November 3, 2020 to February 15, 2022?
iii. Is the applicant entitled to interest on any overdue repayment of benefits?
RESULT
6For the reasons that follow, I find that the respondent was not involved in an accident as defined by s. 3(1) of the Schedule. Further, I find that the applicant is entitled to repayment of $10,963.81 in medical rehabilitation benefits paid to date. The applicant is entitled to interest on any overdue repayment of benefits.
7The applicant paid the respondent medical benefits in relation to the alleged accident of October 28, 2020.
8The applicant submitted that after providing the respondent with payment for her accident-related benefits, it determined that the respondent’s alleged accident did not fall within the definition of such, based on s. 3(1) of the Schedule.
9The applicant is now seeking repayment of benefits paid due to misrepresentation of facts regarding the October 28, 2020 incident.
10The applicant takes the position that the accident did not take place and reports of the accident are wilful misrepresentations of material facts.
11The respondent has not made any substantive submissions or entered any evidence to counter the decisions, evidence or submissions of the applicant.
IS IT AN ACCIDENT?
16The respondent bears the onus of proving there was an accident and that she is entitled to benefits.
17Section 53(a) of the Schedule establishes that the insurer is not required to pay benefits if the applicant for benefits has misrepresented material facts with respect to the application for benefits.
18The 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 and the expert report of William Jennings P.Eng.
19The 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.
20The 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. The applicant has certainly not met their onus to prove on a balance of probabilities that they were involved in a motor vehicle accident as defined by the Schedule.
21The respondent contacted the applicant on October 30, 2020 and informed the applicant that she had been in an accident on October 28, 2020; the applicant opened an accident benefits claim for the respondent and provided medical rehabilitation benefits for treatment of reported injuries.
22The applicant opened an internal investigation when the property damage report was filed and the reports of the accident did not align with pictures of the damage.
23The respondent was informed in writing of the reasons for an investigation of her reports of an accident and an examination under oath was arranged and scheduled to occur in July of 2022. The respondent did not attend the examination.
24The report by Mr. William Jennings P. Eng demonstrates that the vehicles the respondent 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.
26Based on this evidence, I find that the accident as described by the respondent did not occur.
Repayment of Benefits.
27Section 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.
28Section 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. I 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 $10,963.81 of medical rehabilitation benefits based on the reports of an accident and that the respondent was not involved in an accident as defined by the Schedule.
30As per s. 52(2)(a) of the Schedule, the applicant has made a request for repayment; the respondent was informed December 7, 2022 of the conclusions of the applicant’s investigation and repayment of benefits paid was requested.
31I find that the applicant has given proper notice to the respondent of the amount that is required to be repaid.
32I find that the applicant is entitled to repayment in the amount of $10,963.81 in accident benefits paid to date.
Interest
33Section 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 5th 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.
34I find that interest applies on the repayment of benefits pursuant to s. 52(5) of the Schedule.
ORDER
35I find that the applicant is entitled to repayment of $10,963.81 in accident benefits paid. Further, I order that the applicant is entitled to interest on the amounts it paid in benefits in accordance with the Schedule.
Released: August 26, 2024
Timothy Porter
Adjudicator