Licence Appeal Tribunal File Number: 23-015248/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:
Coachman Insurance Company
Applicant
and
Yuriy Shmygyla
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Michael J.L. White, Counsel
For the Respondent:
Yuriy Shmygyla, Self-Represented
HEARD:
By way of written submissions
OVERVIEW
1Yuriy Shmyglya, the respondent was involved in an automobile accident on January 9, 2020, and received benefits from the applicant, Coachman Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant claims repayment of attendant care benefits paid to the respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference in this matter took place on May 27, 2024, and both the applicant and the respondent were represented by counsel. The Case Conference Report and Order dated June 5, 2024, set the matter down for a three-day videoconference hearing. The videoconference hearing was scheduled to take place on December 10-12, 2024.
3On June 19, 2024, counsel for the respondent submitted a Removal of Representative form advising that it was removing itself as representative of the respondent.
4On November 27, 2024, the respondent filed an adjournment request with the Tribunal seeking to adjourn the videoconference hearing for four months due to reasons relating to health and financial concerns. A written adjournment hearing was scheduled to take place on December 6, 2024. However, before this hearing could be held, the applicant filed a motion on November 29, 2024, requesting that the videoconference hearing be converted to a written hearing. By email dated December 3, 2024, the respondent consented to the applicant’s motion.
5Two motion Orders were made by Vice-Chair Brett Todd, dated December 5, 2024. The first Order denied the respondent’s request to adjourn the video conference hearing. The second Order granted the applicant’s request to convert the hearing to a written hearing to be held on February 28, 2025. Vice-Chair Todd further ordered that the written hearing should be marked as peremptory for the respondent.
6A Notice of Written Hearing was sent to both parties on December 17, 2024, advising that the written hearing would be held on February 28, 2025. The Tribunal sent a reminder to all parties by email and to the respondent by regular mail, that the submission due date is approaching for the upcoming written hearing on February 28, 2025.
7On January 29, 2025, the applicant filed its submissions. The respondent did not file any submissions with the Tribunal.
ISSUES
8The issues in dispute are:
i. Is the applicant entitled to a repayment of $51,215.17 relating to its payment of Attendant Care Benefits (“ACBs”) for the period of January 9, 2020 to December 14, 2023, pursuant to s. 52(1)(a) of the Schedule?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to costs, pursuant to Rule 19?
RESULT
9I find that the applicant is entitled to repayment of $51,215.17 relating to its payment of ACBs for the period of January 9, 2020 to December 14, 2023, plus interest.
10I find that the applicant is not entitled to costs.
PROCEDURE
11I find that the respondent did not provide any submissions despite having notice of the written hearing that was sent by email and mail on December 27, 2024. I further find that a reminder email was sent to the respondent by the Tribunal on February 28, 2025. I will therefore proceed with the hearing pursuant to s. 7(2) of the Statutory Powers Procedure Act.
ANALYSIS
Entitlement to repayment of Attendant Care Benefits
12I find that the applicant is entitled to repayment of the ACBs paid to the respondent.
13The applicant claims entitlement to repayment of $51,215.17 related to the payment of ACBs made to the respondent for the period of January 9, 2020 to December 14, 2023.
14Section 52(1)(a) of the Schedule provides that an insured is liable to repay the insurer any benefit that is paid to the insured as a result of an error on the part of the insurer, the insured person or any other persons, or as a result of wilful misrepresentation or fraud.
15Under s. 52(2)(a) of the Schedule, the insurer shall give the insured notice of the amount that is required to be repaid.
16Under s. 52(3) of the Schedule, if the notice required is not given within 12 months after the payment of the amount that is to be repaid, the insured ceases to be liable to repay the amount unless it was originally paid to the insured as a result of wilful misrepresentation or fraud.
17The insurer has the burden of proving that the benefits were paid to the insured as a result of an error on a balance of probabilities.
18Following the accident, the respondent claimed that he retained the services of Natlaia Karasik to provide attendant care services. He claims that Ms. Karasik performed in-home services for 25-30 hours per week, which is composed of five hours per day, for five to six days a week. The applicant paid the respondent $51,215.17 in attendant care services in contemplation of invoices provided by Ms. Karasik.
19The applicant submits that surveillance undertaken of the respondent and Ms. Karasik between March and May and September of 2021, confirms that the respondent was not receiving attendant care services on the dates and times invoiced by Ms. Karasik. The applicant further submits that the respondent at his Examinations Under Oath (“EUO”) on December 17, 2021 and January 6, 2022, confirmed that Ms. Karasik would not come outside of the hours of the invoiced time. Under oath, the respondent reviewed the invoices in September of 2021, and confirmed that the invoices were accurate and that he received the services on the dates and times stipulated on the invoice. The respondent further confirmed at his EUO that he was independent in his personal care tasks.
20The applicant submits that by Notice letter dated December 14, 2023, it advised the respondent that based on its investigation, it had determined that the respondent wilfully misrepresented material facts in relation to his claim for ACBs. The letter advised the respondent that he was required to repay $51,215.17 in ACBs, in accordance with section 52(1)(a) of the Schedule. The letter also advises that pursuant to s. 53 of the Schedule, the respondent’s attendant care benefits are terminated effective immediately.
21On December 13, 2023, the applicant pursuant to s. 46.2(1)2 of the Schedule requested that Ms. Karasik complete a Statutory Declaration to confirm what services, if any were provided and when the services were provided. The applicant submits that Ms. Karasik did not complete the Statutory Declaration.
22The applicant submits that the invoices submitted by the respondent contain fraudulent claims, as the services invoiced were not performed. The applicant submits that the evidence supports that the respondent engaged in fraud and wilful misrepresentation in contravention of s. 52 of the Schedule. The applicant further submits that the respondent confirmed at his EUO that he was independent and failed to meet his obligation of informing the respondent of any changes and improvements to his functional abilities.
23I find that the respondent wilfully misrepresented the attendant care services he received following the accident. I find that this conduct was fraudulent, as the respondent knowingly submitted claims for ACBs that he was not entitled to receive. I accept the applicant’s evidence, and I find that the respondent’s actions were deliberate, and that he misrepresented the attendant services he received to establish his entitlement to an ACB. I find that the surveillance reports provided by the applicant support that the respondent did not receive the attendant care services that were claimed in the invoices sent by Ms. Kahlik and that the respondent confirmed he received at his EUO. While the surveillance was only for three months, the respondent said that the invoices were accurate, which goes to the intent to deceive. In addition, I draw a negative inference based on the service provider’s refusal to provide a Statutory Declaration. I further find that the respondent’s own evidence at his EUO that he was able to perform the tasks he claimed to receive attendant care assistance for, further substantiates the applicant’s entitlement to repayment of all benefits. As a whole, I find that the totality of the evidence shows an intent to deceive.
24I further find that as the respondent did not provide any submissions to the Tribunal, there is no evidence to refute the evidence submitted or the arguments made by the applicant. I therefore find that the applicant is entitled to repayment of the ACBs paid to the respondent based on my finding that the respondent wilfully misrepresented the attendant care services he received.
25With respect to s. 52(2)(a) of the Schedule, I find that the applicant issued a notice letter to the respondent dated December 14, 2023, seeking the repayment of $51,215.17 in ACBs. I find that this notice complied with all of the procedural requirements for a s. 52 repayment request as it included the type of benefit (ACBs), the payment period for which repayment is sought (the entire payment period of ACBs) and the amount of repayment sought ($51,215.17 being the amount in dispute). I find that while the applicant was well-outside of the 12-month period as provided for in s. 52(3) of the Schedule to provide notice of repayment to the date that it commenced payment of ACBs, I find that the 12-month notice period does not apply given my finding that the respondent received these ACBs through wilful misrepresentation or fraud. Therefore, I find that the applicant is entitled to request an order for repayment of the full amount in dispute.
26For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that the respondent is required to repay ACBs paid in the amount of $51,215.17.
Interest
27The applicant requests interest on the repayment. Sections 52(5) and (6) of the Schedule provide guidance on when an insurer may recover interest when seeking repayment. The 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 and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice if given.
28As I find that the applicant is entitled to repayment of ACBs under s. 52, it follows that the applicant is entitled to charge interest on overdue amounts under s. 52(5) of the Schedule. Accordingly, I find that the respondent must pay the “bank rate”, within the meaning of s. 52(6), interest calculated from the 15th day after the repayment request was made on December 14, 2023, pursuant to the Schedule.
Entitlement to Costs
29The applicant requests costs in the amount of $1,000.00 pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023.
30Pursuant to Rule 19, the Tribunal may grant costs if it finds that a party acted unreasonably, frivolously, vexatiously, or in bad faith.
31Pursuant to Rule 19.5, the Tribunal must consider several factors when contemplating whether to order costs including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process; prejudice to other parties; and the potential impact an order for costs would have on an individual accessing the Tribunal system.
32The applicant submits that the respondent’s unreasonable behaviour amounts to bad faith. The applicant submits that the respondent neglected to actively participate in the Tribunal’s process which led to unreasonable delays. It submits that the respondent was not prepared for the original video conference hearing and requested an adjournment. The applicant further submits that the need for the application to the Tribunal was due to the respondent’s refusal to repay the full amount owed to the applicant. It argues that had the respondent complied with the request for repayment, there would have been no need for the Tribunal to adjudicate the matter.
33I find that there is no evidence that the respondent’s actions unreasonably delayed this hearing. While the respondent filed a Motion requesting an adjournment of the hearing, this was rectified by the Tribunal in ordering that the hearing proceed by way of a written hearing as requested by the applicant. I further do not find that the respondent’s failure to file written submissions for the hearing amounted to unreasonable, frivolous, vexatious or bad faith conduct. I do not find that the respondent’s lack of submissions interfered with the Tribunal’s ability to carry out a fair and effective process.
34For the reasons outlined above, I do not find that the applicant has proved that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith, and therefore the respondent is not required to pay costs to the applicant.
ORDER
35For the reasons outlined above, I find that:
i. The applicant is entitled to repayment of $51,215.17 relating to its payment of ACBs for the period of January 9, 2020 to December 14, 2023, plus interest; and
ii. The applicant is not entitled to costs.
Released: October 10, 2025
__________________________
Melanie Malach
Adjudicator