Citation: Aviva General Insurance Company v. Ma, 2025 ONLAT 23-003606/AABS

Licence Appeal Tribunal File Number: 23-003606/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

Shu Min Ma

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Marcin Panasewicz, Counsel

For the Respondent:

Sareena Samra, Counsel

Anil Hampole, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Shu Min Ma (“Ma”) was involved in an automobile accident on May 31, 2019, and sought benefits from Aviva General Insurance Company (“Aviva”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2Aviva claims entitlement to a repayment of income replacement benefits (“IRBs”) paid to Ma over the course of her claim, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issue in dispute is:

i. Is Aviva entitled to a repayment of IRBs in the amount of $30,112.00, for payments made during the period from September 27, 2021 to March 9, 2023?

RESULT

4I find that Aviva is entitled to a repayment of IRBs in the amount of $30,016.00.

BACKGROUND

5Ma was involved in a motor vehicle accident and claimed benefits from Aviva, including IRBs, as a result of the accident. Aviva paid benefits to Ma as a result of the accident-related injuries she reported.

6It is undisputed that Aviva paid IRBs to Ma for the period from September 27, 2021 to March 9, 2023, totalling $30,112.00. Further, Ma does not dispute that Aviva is entitled to a repayment, she disputes the amount of repayment that Aviva is entitled to.

7Ma returned to her pre-accident employment on a temporary basis during her claim for IRBs. She also engaged in other employment during the period she claims entitlement to IRBs. However, she never disclosed her income from employment to Aviva. Ma also received Employment Insurance (“EI”) benefits during the period she claims entitlement to IRBs.

8Aviva submits that Ma’s failure to disclose her post-accident income, including EI benefits, and evasiveness in an examination under oath (“EuO”) indicates that she intentionally misrepresented her employment status for the purpose of receiving IRBs that she is not entitled to.

9Ma agrees that she made attempts to return to work in an effort to mitigate her losses. She claims that she never meant to mislead Aviva by failing to disclose her post-accident income. She further submits that, if repayment is owed, it is not on account of wilful misrepresentation, restricting Aviva’s entitlement to a repayment to twelve months before she received notice.

10For the following reasons, I find that Ma materially misrepresented her post-accident employment status, and that Aviva is entitled to a repayment of all IRBs as a result.

ANALYSIS

11Section 52(1) of the Schedule permits Aviva to claim repayment of benefits paid in error or due to wilful misrepresentation. Section 52(2) provides that Aviva must give notice of the overpayment, and section 52(3) restricts the requests for repayment to a period of no longer than 12 months following the error, unless it was paid to the insured person as a result of wilful misrepresentation or fraud.

Ma’s employment status following the accident

12I find that Ma was employed on a full-time basis for the period from September 28, 2021, to January 15, 2022. A Record of Employment (“ROE”) dated February 23, 2022, states that Ma was employed for that period. The ROE states that Ma quit her position to care for a dependent. Pay stubs from that employer indicate that Ma worked 80 hours, semi-monthly, and earned $19,770.81 during that period.

13I find that Ma received EI benefits for the period from January 16, 2022 to June 4, 2022. EI records demonstrate that Ma received compassionate care benefits for the period from January 16, 2022 until February 19, 2022. After, the EI records state that she received sickness benefits for the period from February 20, 2022 to June 4, 2022.

14Ma’s employment status after July 2, 2022 is less clear than the prior period, but the evidence suggests on a balance of probabilities that she was employed during a significant portion of this time, or possible received regular EI benefits. The EI records show that Ma sought to convert her sickness benefits to regular EI benefits by September 6, 2022, and noted in the EI records that she was available and capable of working effective July 2, 2022. The result of her request was not included in the EI records before me. The EI records also include an email exchange, dated September 4, 2022, which indicates that Ma inquired if her previous employer had work available for her and the employer replied that it did not. According to Aviva Insurance Company of Canada v. Spence, 2022 ONSC 4988, EI sickness benefits are to be treated the same a regular EI benefits, entitling Aviva to a deduction related to those benefits.

15Moreover, I conclude on a balance of probabilities that Ma found employment at a restaurant by Autumn 2022. A surveillance report, dated November 20, 2022, provided evidence that Ma was employed at a restaurant. The report recorded Ma attending at the restaurant on November 11, 15, 16, and 17 for approximately six to eight hours each day. Similar surveillance evidence was obtained on January 5, 2023, outlined in another report, dated January 9, 2023. While in attendance at the restaurant, Ma was dressed in an apron and hairnet, and was located in the employee section. She was depicted doing actions such as food preparation, sweeping, and taking out garbage.

16Information in the transcript from the EuO of February 16, 2023 does not detract from my finding that Ma was employed at the in autumn 2022 and into winter 2023. In the EuO, Ma reported that she could not lift or open a bottle and that she didn’t know what job she could do and was unable to work as a result of physical and psychological conditions, all her jobs were as a computer programmer, that she tried returning to work after the accident but couldn’t last more than 2-3 months and confirmed that the company was a software company and provided pay stubs for that employment. Otherwise, Ma denied any other work, volunteering, or self-employment. She was asked specifically about the restaurant by name and location and denied knowing it. Later, when presented with the surveillance evidence, she agreed that she was there, and it was a friend who asked her to see the business to see if she wanted to work there.

17Further, in the EuO, Ma initially denied engaging in any labour at the restaurant and stated she was there for only a one or two days. Then later in the EuO after being presented with the evidence, admitted to sweeping but said she didn’t report it because it was “so trivial”. Ma concluded that she was never paid for her work, but instead received food. However, she could not remember details of the food she received.

18I find that the activity depicted in the surveillance evidence strongly suggests that Ma can work, particularly given that her pre-accident employment as a computer programmer requires much less physical activity than the activity at the restaurant. This is further supported by Ma’s statements to Service Canada to obtain EI benefits. In the records, as noted earlier, Ma confirmed that she is available and capable of working effective July 2, 2022

Ma wilfully misrepresented her employment status

19I find that Ma’s failure to inform Aviva that she returned to work, even if temporarily, and that she received EI payments was a deliberate action to misrepresent or mislead Aviva in order to continue receiving IRBs that she was not entitled to. Further, I find on a balance of probabilities that she found employment at a restaurant in autumn 2022.

20Foremost, Ma has a positive obligation to inform Aviva as to whether she earned post-accident income, including EI benefits. This is because Aviva is entitled to deduct a percentage of post-accident earnings from the IRBs payable, pursuant to section 7(3) of the Schedule. There is no evidence before me to suggest that Ma disclosed that she received EI benefits at the same time she received IRBs. Likewise, as I will elaborate on more, Ma waited more than a year to report to anyone that she attempted a return to work in late 2021.

21The evidence demonstrates that Ma wilfully misrepresented her work status to Aviva. The IE report by Dr. M. Hanna, physician, dated May 9, 2022, states that Ma denied having returned to employment following the accident. In contrast, pay stubs and an ROE confirm that she employed for the period from September 28, 2021 to January 15, 2022. Ma took more than a year for first report her return to work to Aviva. The first instance of her reporting a return to work is in the IE report by Dr. J. W. Lee, psychologist, dated December 22, 2022. There, Ma reported that she returned to work for two months but could not continue due to accident-related issues coupled with her father’s terminal illness.

22Ma perpetuated her misrepresentation in the EuO. While she admitted to returning to work as a computer programmer for a few months, she continued to deny that she found other employment, volunteer work, or worked at any business for family or friends when she was specifically asked about it. Her answers changed when presented with evidence indicating she was working at the restaurant and she admitted to attending at the restaurant and attempting to work but denied that she was able to and engaged in work there, contrary to the activity depicted in the surveillance reports.

23Based on the above, I find on a balance of probabilities that Ma wilfully misrepresented her employment status while collecting IRBs. During the relevant period, she was either employed or collecting EI benefits, and purported to be able and willing to work, and was untimely and coy when disclosing that information to Aviva.

Quantum

24I find that Aviva is entitled to a repayment at a quantum that is slightly less than what it claimed. My calculation is as follows.

25Ma was employed on a full-time basis from September 27, 2021 to January 15, 2022. Her earnings for this period are more than $1,000.00 per week, which would negate an IRB entitlement for Ma during this 16-week period, entitling Aviva to a repayment of $6,400.00.

26Ma then received EI benefits for the period from January 17, 2022 to June 4, 2022 while she cared for her terminally ill father. She received gross EI payments of $544.00 per week, entitling Aviva to a deduction of $380.80 per week for this 20-week period. I give Ma the benefit of the doubt during this period and found that she meets the disability test for IRBs during this period, although it is unlikely given that she did, given that she was providing caregiving services to her terminally ill father at this time. Nevertheless, I find Aviva is entitled to a repayment of $7,616.00 for this period, representing a deduction of $380.80 per week for this 20-week period.

27Calculating the quantum of overpayment for the period after June 4, 2022 is complicated because her earnings during this period is unclear. Ma did not report any income from employment at the restaurant, did not provide her EI file for any period after November 17, 2022, and never produced her 2023 tax returns. Given that Ma was employed for the period from September 27, 2021 to January 15, 2022, and she reported to Service Canada that she was able and willing to work effective June 4, 2022, I infer that she would not meet the disability test for IRBs beyond June 4, 2022.

28I further infer that Ma earned income from employment at the restaurant for the period after June 4, 2022. While it is not reported in her tax returns, the surveillance evidence clearly demonstrates that Ma was engaging in employment during the period she received IRBs. She was ordered by the Tribunal to produce employment records from the Restaurant, but never did, despite confirming that she attempted to work there. I draw and adverse inference from Ma’s failure to produce the information related to her employment at the restaurant and conclude that it would be unfavourable to her had it been produced.

29Given that Aviva paid IRBs to Ma for the period from June 4, 2022 to March 9, 2023 on account of her misrepresentation of her employment status, together with my inference that Ma does not meet the disability test after June 4, 2022, it follows that that Aviva is entitled to a repayment of IRBs paid for the period from June 4, 2022 to March 9, 2023, or 40 weeks, for a total of $16,000.00.

30Adding the three amounts payable together, I conclude that Aviva is entitled to a repayment in the amount of $30,016.00.

Interest

31The parties never addressed whether interest is payable and the issue is not outlined in any Tribunal Orders for this hearing. Accordingly, I find that the issue is not before me and decline to opine on it.

CONCLUSION AND ORDER

32Ma wilfully misrepresented her employment status to Aviva while collecting IRBs. According to the information above and section 52 of the Schedule, Aviva is entitled to a repayment of IRBs from Ma in the amount of $30,016.00.