Sooriyaperuman v. Certas Home and Auto Insurance Company, 2025 CanLII 135581

Citation: Sooriyaperuman v. Certas Home and Auto Insurance Company, 2025 CanLII 135581

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: Ulana Pahuta

APPEARANCES:

For the Applicant: Serena Rhyman, Paralegal

For the Respondent: Jonathan Schreider, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nivarsan Sooriyaperuman the applicant, 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.

2The applicant commenced an application with the Tribunal to resolve the issue of whether he had been involved in an “accident” as defined in s. 3 of the Schedule, whether he was entitled to certain benefits in dispute and whether he was liable to repay $2,565.00, plus interest, to the respondent. The matter was ordered to a videoconference hearing, and by way of a decision dated August 15, 2024, the Tribunal found that the applicant was not involved in an “accident” as defined in s. 3. The Tribunal also ordered the repayment of benefits that had been paid to the applicant. In a reconsideration decision dated January 10, 2025 the Tribunal ordered a rehearing of the matter on both the preliminary issue of whether the applicant had been in an accident, and the issue of whether the respondent was entitled to the repayment of paid benefits. The rehearing of the matter is presently before me.

ISSUES

3The issues in dispute are:

i. was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule? and

ii. is the respondent entitled to 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

4I find that:

i. The applicant was involved in an “accident” as defined in the Schedule; and

ii. The respondent is not entitled to a repayment of benefits paid to the applicant as a result of wilful misrepresentation pursuant to s. 52(1)(a) of the Schedule.

ANALYSIS

Background and parties’ positions

5This dispute arises out of an incident that occurred on July 11, 2022. The parties agree that there was a collision between the vehicle the applicant was allegedly a passenger in (a Honda) and a second vehicle (a Toyota), where the Toyota rear-ended the Honda. However, the parties disagree as to the details of the collision, and whether the collision had been a “staged” accident.

6The respondent submits that the applicant has wilfully misrepresented the material facts relating to the collision and that either the collision had been “staged”, or at the very least given the numerous inconsistencies in the applicant’s description of the events surrounding the collision, it calls into question whether the applicant had even been involved in the incident. The respondent relies on a forensic engineering report dated October 19, 2022 by William Jennings (the “engineering report”) to argue that the collision did not occur in the manner described by the applicant.

7The respondent further points to the applicant’s Examination Under Oath (“EUO”) testimony on February 13, 2023 and the applicant’s testimony at the previous hearing on May 22, 2024 to argue that the applicant has given inconsistent and incoherent evidence in describing the details of the collision, the period before the collision and the period following the collision. It argues that this inconsistency undermines the applicant’s credibility and his claim that an “accident” as defined in the Schedule, had occurred.

8The applicant submits that he was involved in an accident as defined under s. 3(1) of the Schedule, when the car he was travelling in as a passenger was rear-ended when it was stopped at a red light. He argues that the engineering report detected weight of an adult in the front passenger seat at the time of the collision, which clearly indicates that he was in the car. The report also establishes that the Honda had been rear-ended by the Toyota. Although there may have been some inconsistencies in the retelling of the events of the incident, the applicant cites Tribunal decisions to argue that such inconsistencies do not necessarily mean that an “accident” did not occur. The applicant further submits that as he had mentioned in his statement, he was under the influence of marijuana at the time of the collision.

9The applicant points to the collision report to argue that the accident occurred, and submits that the medical evidence establishes that he sustained injuries as a result of the accident. He relies on the medical records of Markham Stouffville Urgent Care which establish that he sought medical attention immediately following the accident, and had cervical and thoracic spine X-rays. The applicant further reported low back and neck pain post-accident and sought physiotherapy treatment.

Law

10Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”

11The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries, despite this preliminary issue being raised by the respondent.

12The Ontario Court of Appeal confirmed in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, a two-part test to determine whether an incident is an “accident” as follows:

i. Purpose test: did the incident arise out of the use or operation of an automobile? and

ii. Causation test: did the use or operation of an automobile directly cause the impairment?

13The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put”, see Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

14The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on satisfying the following considerations in sequential order:

i. The “but for” consideration;

ii. The “intervening act” consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and,

iii. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.

Was the collision an “accident”?

15I find that the applicant has established that the collision was an “accident” as defined in s. 3 of the Schedule.

16The dispute between the parties centres on whether the applicant has met the purpose test, as set out in Economical Mutual Insurance Company v. Caughy. The respondent argues that a “staged accident” does not meet the test of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put”. It submits that a staged accident is an intentional act that is contrary to public policy and section 118 of the Insurance Act, RSO 1990, c. I.8, and as such, is not an ordinary or well-known activity to which automobiles are put.

17For the reasons that follow, I find that the applicant did not wilfully misrepresent material facts about the incident. Although there is no dispute that there were inconsistencies in the applicant’s reporting of some of the facts of the incident, I find that the applicant has met his burden to prove, on a balance of probabilities, that the collision resulted from “the ordinary and well-known activities to which automobiles are put”, and was not a “staged” accident.

18The respondent points to inconsistencies identified in the engineering report, and in the applicant’s testimony at his EUO and at the previous hearing. With respect to the engineering report, the respondent argues that Mr. Jennings found that the evidence did not support the applicant’s description of the accident in a number of ways:

i. Although the applicant had reported that the car he was travelling in was stopped at the intersection at a red light, when another vehicle had rear-ended them, the event data from the vehicle had indicated that both vehicles were initially stopped before the collision.

ii. The Honda then began to accelerate, and reached a speed of about 20km/hr, when it decelerated to about 6km/hr when it was hit. Therefore, the applicant’s car was not stopped when it was hit.

iii. Similarly, the Toyota had accelerated about 1.5 seconds after the Honda began moving and it accelerated to 28 km/hr when it rear-ended the Honda. This differed from the report from the Toyota driver that he had been slowing down as he approached the traffic light.

iv. The data also revealed that the two front seated occupants in the Honda were not wearing their seatbelts. However, the applicant had testified at the prior hearing that he had been wearing a seatbelt.

19With respect to the applicant’s testimony at the EUO and prior hearing, the respondent points to the following additional inconsistencies:

i. the applicant has not provided consistent evidence as to how he came together with the other three occupants of the Honda on the day of the accident. At the initial hearing, the applicant stated two of his friends arrived at his house, and then they picked up the fourth occupant from a different location. However, when the driver’s statement was put to the applicant at the hearing (that all four occupants had departed in the same vehicle from the applicant’s house), the applicant responded that he could not remember which version was true;

ii. the applicant testified during the hearing that they were stopped at a red light, and that he saw a green light after the collision. However, during his EUO, the applicant stated that the light was green before the collision;

iii. there were discrepancies in the applicant’s testimony regarding details about where the group would be eating;

iv. there were discrepancies in the applicant’s testimony regarding the order in which his friends arrived at his house;

v. there were discrepancies in the applicant’s testimony regarding whether the applicant saw the driver’s foot on the brake;

vi. there were discrepancies in the applicant’s testimony regarding where the occupants of the car went after the accident.

20The respondent also argues that the applicant failed to provide evidence that had been requested at the EUO. The respondent submits that at the EUO it had asked for the ambulance call report and the applicant’s cell phone records to confirm his location and the calls he made at the time of the accident, but neither were provided. Given all of the above inconsistencies, the respondent argues that the applicant has wilfully misrepresented material facts, that the collision was staged and was not an “accident” as defined in the Schedule.

21I find that the applicant has met his burden to prove, on a balance of probabilities, that he was involved in an accident as defined in the Schedule.

22Firstly, there is no dispute that a collision occurred between the Honda and the Toyota. The respondent concedes that the engineering report establishes that the Toyota rear-ended the Honda. Further, I agree with the applicant that the engineering report reveals that there was an adult passenger in the front seat, and the collision report and reports of the occupants establish that the applicant was reported to be the passenger. Emergency room records also establish that the applicant sought medical treatment on the day of the accident. I find that the applicant has met his evidentiary onus to prove, on a balance of probabilities, that he was the passenger in the Honda that was rear-ended by the Toyota.

23I agree with the respondent that there are some inconsistencies in the applicant’s testimony at the EUO and the prior hearing as compared to the engineering report. However, in my view, these inconsistencies are minor and do not support a finding of material misrepresentation or establish that the accident was “staged”. The applicant has further provided persuasive explanations for the inconsistencies.

24The applicant submits that the hearing took place two years after the accident, and that he had been under the influence of marijuana at the time of the collision. I accept that many of the inconsistencies pointed to by the respondent, such as the order of the applicant’s friends’ arrival at the house, whether the applicant saw the driver’s foot on the brake, whether the light was green or red at the time of the collision, whether the car was fully stopped or accelerating, where the friends were going to eat, would have been challenging to remember two years post-accident. I further note that the applicant was the passenger of the vehicle and not the driver, and as such, may not have been focussed on whether the traffic light was green, whether the car was accelerating or slowing/stopped or whether the driver’s foot was on the brake.

25The applicant has also been forthcoming throughout his claim that he had been smoking marijuana during the events leading up to the accident. The respondent argues that the applicant only made a brief statement in his submissions that he was “under the influence of marijuana”. However, the respondent has also provided the EUO and prior hearing transcripts which reveal detailed questioning and comments relating to the applicant’s marijuana use. At the EUO the applicant confirmed that he had been smoking marijuana for a long time and that the parties had been smoking prior to the accident. At the hearing, when respondent’s counsel questioned the applicant’s inconsistent answers or inability to recall details, the applicant stated “(l)ike I said earlier, I was smoking. I was high”. This was reiterated by applicant’s counsel who asked the applicant whether the fact that he was under the influence of marijuana at the time of the accident could have distorted his ability to recall events relating to the accident, to which the applicant replied “yes”. Respondent’s counsel also queried at the hearing whether the applicant had been under the influence of marijuana during his testimony at the EUO, at which point the applicant stated that he could not recall.

26The respondent argues that the applicant has not led expert medical evidence as to the effect of marijuana on the ability to remember details. I do not find that the lack of such evidence is fatal to the applicant’s case. The applicant has repeatedly stated that he had been smoking marijuana and was “high” at the time of the accident. The respondent clearly was concerned about this issue given the fact that questions relating to the applicant’s marijuana use were put to the applicant both at the EUO and at the initial hearing. I accept that a passenger in a car who has admitted to being impaired by marijuana use could have had difficulties remembering minor details of the events surrounding the accident.

27The respondent further submits that the Tribunal has consistently considered similar inconsistencies, when finding that an accident has not occurred, see B.F. v. Certas Direct Insurance Company, 2021 CanLII 35572 (ON LAT) and Sandhu v The Personal Insurance Company, 2023 CanLII 58474 (ON LAT) However, I find that both of these decisions are distinguishable.

28Neither of the decisions cited by the respondent considered a situation where the claimant was seemingly impaired by drugs at the time of the accident and accordingly, was unable to recall details. Further, both of these decisions noted, in my view, major discrepancies in the reporting of the accident. In B.F. v. Certas the claimant stated that her vehicle only had one impact with the other vehicle, but the reconstruction engineering report found that the claimant’s vehicle hit the other car three times and that there was no logical explanation for three separate and distinct impacts. The claimant had also reported that she was going to get lunch before the accident happened, but the accident happened just after 11pm. In Sandhu v. The Personal, the claimant could not recall the date or the proper location of the accident, citing the incorrect day of the week and intersection.

29In my view, the major discrepancies detailed in B.F. and Sandhu differ from the more minor inconsistencies in this case. For example, the present engineering reconstruction report noted that the vehicle was decelerating at the time of impact, rather than being fully stopped. The fact that the applicant inaccurately stated that they were stopped at the traffic light, rather than decelerating or accelerating, particularly given that he was not the driver and was apparently impaired at the time, is not a material misstatement.

30I further am not prepared to draw an adverse inference from the applicant’s failure to provide certain documents as requested by the respondent. The respondent submits that the applicant failed to provide paramedic records and his cell phone records, as requested at the EUO. However, in the applicant’s hearing testimony, he noted that while his counsel may have stated he would make best efforts to obtain the cell phone records, the applicant subsequently declined to provide them citing privacy concerns. Further, if the cell phone records were required to establish key details relating to the accident, these records could have been requested at the case conference held on November 17, 2023. However, the Case Conference Report and Order does not identify any production orders with respect to the cell phone records.

31With respect to the ambulance call report, the applicant testified at the hearing that while he spoke with ambulance staff at the accident, he left with his friends and did not take an ambulance to the hospital. As such, he did not receive any report from the paramedic staff. I do not find the failure to produce the ambulance call report to be a significant issue, given that it would likely not have contained detailed information about the specifics of the accident. The applicant’s impairments at the time of the collision are not presently in dispute,. Therefore, I find that the paramedic records would be of limited benefit in assessing whether the collision was an “accident” for the purposes of the Schedule.

32Accordingly, I find that the applicant has met his onus to prove, on a balance of probabilities, that he was involved in an “accident” and that the accident resulted from the ordinary and well-known activity to which automobiles are put. The respondent has not persuaded me that the accident was “staged”, and I agree with the applicant that the purpose test set out in Economical Mutual Insurance Company v. Caughy has been met.

33With respect to the second part of the two-part test to determine whether an incident is an “accident”, the causation test, the respondent has not provided submissions disputing the causation test or whether the use or operation of the automobile directly caused the applicant’s impairments. I agree with the applicant that causation has been established. There is no dispute that the collision occurred, no submissions or evidence of an intervening act, the engineering report confirmed that there was a front seat passenger and the statements of the parties, the collision report and hospital records confirm that the passenger was the applicant. Further, although I make no findings with respect to the applicant’s substantive entitlement to medical benefits, the applicant has also provided medical evidence in support of his argument that he sustained accident-related impairments. Accordingly, I find that the causation branch of the two-part test set out in Caughy has been met.

34For the reasons set out above, I find that the applicant has met his onus to prove, on a balance of probabilities, that he was in an accident as defined in s. 3(1) of the Schedule.

The respondent is not entitled to repayment of benefits paid pursuant to s. 52(1)(a) of the Schedule

35Section 52(1)(a) of the Schedule holds that an insured person is liable to repay to the insurer any benefit that was paid to the person as a result of wilful misrepresentation or fraud.

36As detailed in the section above, I have not found that the applicant wilfully misrepresented material facts when he described events surrounding the accident. Accordingly, the respondent has not established that it is entitled to repayment of benefits paid to the applicant.

ORDER

37The applicant was involved in an “accident” as defined in the Schedule; and

38The respondent is not entitled to a repayment of benefits paid to the applicant as a result of wilful misrepresentation pursuant to s. 52(1)(a) of the Schedule.