Aviva General Insurance Company v. Khokhar, 2025 CanLII 108582

Aviva General Insurance Company v. Khokhar

Citation: Aviva General Insurance Company v. Khokhar, 2025 ONLAT 24-009797/AABS

Licence Appeal Tribunal File Number: 24-009797/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:

Aviva General Insurance Company

Applicant

and

Nasira Khokhar

Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: Mark Vella, Counsel Hussein Pirani, Counsel

For the Respondent: Raza Syed, Counsel

Heard by Videoconference: June 2-5, 2025

OVERVIEW

1Aviva General Insurance Company, the applicant, paid income replacement benefits (“IRBs”) to Nasira Khokhar, the respondent, who was involved in an automobile accident on January 12, 2022. The applicant sought repayment of the IRBs paid pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant has not received repayment from the respondent insured, and it applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant (insurer) entitled to a repayment of $71.03 per week relating to its payment of an income replacement benefit for the period of January 20, 2022, to March 14, 2023?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to repayment pursuant to s. 52 of the Schedule in the amount of $4,369.52.

4The applicant is entitled to interest pursuant to s. 52.

PROCEDURAL ISSUES

5On consent, the applications in Tribunal file # 24-010189/AABS and 24-009797/ABBS were heard together. However, separate decisions are being issued for each application.

ANALYSIS

The applicant committed wilful misrepresentation

6For the reasons that follow, I find that the applicant is entitled to repayment pursuant to s. 52 of the Schedule in the amount of $4,369.52, plus interest, as a result of its overpayment due to the respondent’s willful misrepresentation.

7Section 52 concerns the repayment of benefits. Under s. 52(1), a person is liable to repay any IRBs paid to them as a result of a) an error; or b) wilful misrepresentation or fraud. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. These provisions provide that the insurer shall provide the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud. The applicant has the burden of proving that IRBs were paid as a result of an error or wilful misrepresentation or fraud on a balance of probabilities.

8The Tribunal has defined “misrepresentation” as, “any manifestation by words or other conduct by one person to another that, under the circumstances, amount to an assertion not in accordance with the facts.” The Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation [see 17-000272 v. T.T., 2017 CANLII 87539 (ON LAT)]. I agree with the reasoning in this case and find the test is as stated.

9The applicant submits that the respondent was not working at the time of the accident, had been self-employed rather than employed prior to the accident, and that it is unclear if she worked in the 52 weeks prior to the subject accident. The applicant relies on the respondent’s 2021 and 2022 tax returns, her CPP-D application, the applicant’s two OCF-2’s and the applicant’s testimony.

10The respondent submits that she was working prior to the accident, was headed to work that day, has been correctly paid IRBs and that IRBs should have continued to be paid at a rate of $71.03 per week because she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

11It is difficult to determine when the respondent last worked based on her testimony. The respondent testified that she worked 5 days per week, from 9:00 AM to 5:00 PM and sometimes Saturdays as needed but never worked on Sundays. In contrast, the respondent also testified that she last worked prior to the subject accident on Sunday, January 9, 2022, did not work Monday, January 10th or Tuesday, January 11th, 2022, but was on her way to start work at 1:30 PM the day of the accident. The respondent also testified that her last day worked was two days before the pandemic in 2020.

12There are discrepancies between the respondent’s testimony and submitted evidence. The respondent testified that discrepancies between her income claims and reports to the CRA relate to cash payments which she stated are not reported as income. The respondent has also applied for Canada Pension Plan – Disability (“CPP-D”), that application indicates that the last day worked was March 13, 2020. The respondent also reported to Dr. Sekyi-Otu, orthopaedic surgeon, that she last worked in December 2020.

13The respondent’s submitted tax records do not support the respondent’s claims regarding work status or income level, for example:

(a) 2019 net business income of $16,780

(b) 2020 net business income of $4,901

(c) 2021 net business income of $4,050

The respondent also submitted a “job letter,” which had been submitted to the applicant in support of the IRB claim, which identifies Wiam Filali Baba as an employer for the respondent. The letter indicates that the respondent is paid $635 per week. The letter is not on letterhead and is undated. Attached to the letter are two receipts from the respondent for annual payments from Wiam Filali Baba to the respondent; the receipts indicate annual pay of $24,460 in 2019 and $8,170 in 2018. I have not been pointed to any receipts for 2020 or 2021. I find that submission of the “job letter” is a manifestation by words or other conduct by the respondent to the applicant that, under the circumstances, amount to an assertion not in accordance with the facts.

14On a balance of probabilities, I find that the respondent was not employed or self-employed in the months prior to the subject accident. As the respondent was not employed and it is not possible to ascertain her self-employed income or status, she is not entitled to income replacement benefits.

15The respondent’s accident benefits forms do not provide any further clarity as to the respondent’s work status at the time of the subject accident. For example:

i. An OCF-2 (Employer Confirmation Form) was signed and submitted by the respondent, not an employer, on April 21, 2022, and indicated that the employer was Wiam Filali Baba. The form indicates that the respondent is employed full-time and earned an average weekly income of $612.50 and was not absent from work for any time in the previous 52 weeks and indicates that her last day worked was January 12, 2022. The dates of employment listed are “August 10, 2018, to employed”.

ii. An OCF-3 (Disability Certificate) was signed and submitted April 22, 2022, and states that the applicant worked at least 26 of the previous 52 weeks and was not receiving employment insurance at the time. The form indicates that the applicant has a complete inability to carry on normal life as a result of the accident and that this is expected to last for 9-12 weeks.

iii. A second OCF-2 was signed and submitted July 25, 2022, in which the applicant indicates that she was self-employed at the time of the accident and would like her earnings in the previous fiscal year to be used in calculation of income replacement benefits. The dates of employment are listed as October 1, 2019, to present, and the last day worked was January 12, 2022.

16I find, on a balance of probabilities, that the OCF-2 and OCF-3 submissions are a manifestation by words or other conduct by the respondent to the applicant that, under the circumstances, amount to an assertion not in accordance with the facts

17I find that the respondent was properly informed of her entitlement to and obligations for the IRBs.

i. The respondent signed and submitted an OCF-1 (application for accident benefits) on January 20, 2022. An OCF-1 includes declarations as follows above the signature and date box in part 12:

(a) I understand that the information described above will be collected and used in… preventing, detecting, and suppressing fraud;

(b) I certify that the information provided is true and correct;

(c) I understand that it is an offense under the Insurance Act to knowingly make a false or misleading statement or representation to an insurer under a contract for insurance.

ii. On February 1, 2022, the applicant wrote to the respondent with an explanation of benefits. The letter explains the benefits the applicant may be eligible for based on the submission of her OCF-1. The letter invites the respondent to submit additional income information such as EI statements, records of employment and an OCF-3 (disability certificate).

iii. The applicant wrote the respondent on September 6, 2022, informing the respondent that she is eligible for IRB based on her submissions to the insurer, provides an overview of amounts owing over the eligibility period and how future payments will be made. The letter details that the calculations are based on information submitted by the respondent and that she should contact the respondent immediately if she returns to work as the applicant is entitled to repayment of any money paid in error.

iv. On June 4, 2024, the applicant wrote to the respondent to inform her that it was seeking full repayment of IRBs based on receipt on March 22, 2024, of the respondent’s hearing submissions, which included the full CPP-D application in which the respondent attests that her last day worked was March 13, 2020.

18I find that the respondent wilfully misrepresented the facts regarding her employment status and income because she repeatedly identified that she was working full-time as a baby-sitter for Wiam Filali Baba when the facts do not support this. For example, she submitted the “job letter” implying that this was current employment at the time of the accident when, on a balance of probabilities, she was not employed by Wiam Filali Baba at the time. In addition, the applicant continued misrepresenting the facts on a series of OCF documents as described above.

19The respondent was paid IRBs in the amount of $71.03 per week from January 20, 2022, to March 21, 2023, for a total of 61 weeks and total IRBs paid of $4,369.52; these were paid as a result of willful misrepresentation by the respondent.

20Accordingly, I find on a balance of probabilities, that the respondent owes repayment of $4,369.52, to the applicant for overpayment of IRBs due to wilful misrepresentation.

Interest

21Sections 52(5) and (6) set out when an insurer may recover interest on repayment of benefits. 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.

22As the applicant is entitled to a repayment of benefits, it follows that it is also entitled to interest on the overdue payments, calculated at the bank rate in effect on the 15th day after proper notice was provided on June 4, 2024.

ORDER

23The applicant is entitled to repayment pursuant to s. 52 of the Schedule in the amount of $4,369.52.

24The applicant is entitled to interest pursuant to s. 52.