Citation: Co-operators General Insurance Company v. Dao, 2025 ONLAT 23-011803/AABS

Licence Appeal Tribunal File Number: 23-011803/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:

Co-operators General Insurance Company

Applicant

and

Patrick Dao

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Emily Schatzker, Counsel

For the Respondent: No submissions were filed

HEARD: By way of written submissions

OVERVIEW

1Patrick Dao ("Mr. Dao"), the respondent, was involved in an accident on December 14, 2018, and sought benefits from the applicant, Co-operators General Insurance Company ("Co-operators"), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2Co-operators paid income replacement benefits ("IRBs") to Mr. Dao following the accident. However, Co-operators alleges that Mr. Dao misrepresented his employment status and sought repayment of the IRBs it paid. Co-operators applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

3Mr. Dao did not attend the case conference or provide written submissions for this hearing. Section 7(2) of the Statutory Powers Procedure Act ("SPPA") states that, where notice of a written hearing has been given to a party to a proceeding and the party does not participate in the hearing in accordance with the notice, the Tribunal may proceed without the party's participation and the party is not entitled to any further notice in the proceeding. I have reviewed the Tribunal's file and I find that he was served notice, by way of email to the email address on file with the Tribunal, of the case conference and the written hearing. I also note that the email address on file with the Tribunal is the same as the one he identified in various other applications to the Tribunal. I am satisfied that, in accordance with s. 7(2) of the SPPA, I may proceed with this hearing in Mr. Dao's absence.

ISSUES

4The issues in dispute are:

i. Is Co-operators entitled to a repayment of $41,212.00 relating to its payment of IRBs for the period of December 21, 2018, to September 13, 2022?

ii. Is Co-operators entitled to interest?

RESULT

5Co-operators is entitled to a repayment under s. 52 of the Schedule in the amount of $41,212.00, plus interest pursuant to s. 52(5), as a result of the overpayment of IRBs made on the basis of wilful misrepresentation.

ANALYSIS

6Under s. 52, a person is liable to pay an insurer any benefit that is paid to the person as a result of an error on the part of the insurer, the insured person, or any other person, or as a result of wilful misrepresentation or fraud. Pursuant to s. 52(2)(a), the insurer is required to give notice of the amount that is required to be repaid. If the notice 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.

7The Tribunal in 17-000272 v. T.T., 2017 CanLII 87539, defined "misrepresentation" as "any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts". Further, the Tribunal held that silence or a failure to report can constitute wilful misrepresentation. While I am not bound by this decision, I agree with the Tribunal's definition of "misrepresentation".

8Co-operators submits that it paid IRBs to Mr. Dao from December 21, 2018, to December 14, 2020, in the amount of $41,212.00. It had suspended payment of the benefit due to Mr. Dao's failure to provide a number of financial documents after requests pursuant to s. 33 of the Schedule.

9Mr. Dao submitted an OCF-1 indicating that he was employed at Afro Caribbean Freshness Supermarket since April 2018. The OCF-2 indicated that he worked there since February 20, 2018. Mr. Dao submitted four OCF-3s (dated January 11, 2019, August 12, 2019, July 29, 2021, and March 12, 2022), each indicating that he was not working and the last day he worked was December 14, 2018. He also advised Dr. Alfonse Marchie, s. 44 physiatrist, that he had not worked since the date of the accident.

10Mr. Dao attended an examination under oath ("EUO") on November 17, 2021, where he gave the following testimony:

i. He started working at Afro Caribbean Freshness Supermarket about 2-4 months prior to the accident. He worked as a forklift operator and a general labourer.

ii. After the accident in 2018, he never returned to work at the supermarket.

iii. He did not work for Skip The Dishes or other similar courier companies prior to the accident, and he has not worked for them since the accident.

iv. He started a company in 2018 or 2019 in order to do his taxes. The company was also involved in importing and exporting. He was engaged in supervisory work, which mostly involved sitting at his computer. He had two employees in 2018, 2019, and 2020. The business stopped operating for a time in 2020 due to the Covid-19 pandemic, but was still operating at the time of the EUO.

v. He never received an income from his business. In 2020 his only source of income was from CERB. In 2021, his only source of income was Ontario Works.

11I find that there are a number of inconsistencies in Mr. Dao's testimony and in the forms that he submitted to Co-operators.

12Despite claiming that he never returned to work at the supermarket, Mr. Dao advised Ontario Works on July 6, 2021, that he had worked there from 2018 until March 2020. Further, despite representing to Dr. Marchie and indicating on the forms noted above that he had not worked since the accident, the evidence at his EUO was that he was doing supervisory work for his company. Although Mr. Dao also advised that he never received an income from his business, he failed to provide tax returns and notices of assessment from 2018 to 2022 in accordance with the production order set out in the Case Conference Report and Order of February 21, 2024 ("CCRO"). I agree with Co-operators that an adverse inference should be drawn from Mr. Dao's failure to provide material evidence that is directly relevant to the issue before me, and I will infer that the evidence would have been unfavourable to Mr. Dao's case if produced.

13Further, despite claiming that he never worked for Skip The Dishes or other similar courier companies, Co-operators submits that surveillance evidence shows Mr. Dao working for Skip The Dishes in November 2019, which was during the period that it paid IRBs. On November 20, 2019, Ephraim Osei, investigator at Delta Investigations, saw Mr. Dao enter a restaurant, and two minutes later exit the restaurant carrying a Skip The Dishes delivery bag. He then drove to another location, exited the vehicle with the delivery bag, and returned to his vehicle. He repeated this process at three different restaurants before surveillance was discontinued. In the absence of any explanation for this, it appears to me that Mr. Dao was delivering food on November 20, 2019, which is contrary to the evidence he provided at his EUO.

14Pursuant to the CCRO, Mr. Dao was also required to produce the complete payment details for any food delivery company from January 1, 2018, to the date of the case conference, but he failed to do so. I also draw an adverse inference from Mr. Dao's failure to produce these documents.

15Mr. Dao chose not to produce any evidence or make submissions to dispute Co-operator's claim that he misrepresented his employment status and post-accident earnings. I am satisfied based on the evidence before me, and the inferences I have drawn from the evidence that Mr. Dao failed to provide, that Mr. Dao was working during the period he claimed not to be. I find that this runs contrary to Mr. Dao's evidence at the EUO, and therefore was a misrepresentation of his employment status. Further, I also find that his silence and failure to advise Co-operators of his employment activities or income amounted to misrepresentation. In my view, this misrepresentation was wilful as it allowed him to receive IRBs when I infer that he was not entitled to receive them.

16In a letter dated September 13, 2022, Co-operators explained to Mr. Dao that it was requesting full repayment of the IRBs paid in the amount of $41,212.00 pursuant to s. 52, as a result of material misrepresentation about his ability to work and his post-accident earnings. I find that this was a valid notice pursuant to s. 52(2)(a).

17I accordingly find that Co-operators is entitled to repayment of $41,212.00 for IRBs paid to Mr. Dao.

Interest

18Section 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 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 is given. As I found that Co-operators is entitled to a repayment of amounts paid to Mr. Dao as a result of wilful misrepresentation under s. 52, it follows that interest is payable on any overdue amount pursuant to s. 52(5).

ORDER

19Co-operators is entitled to a repayment under s. 52 of the Schedule in the amount of $41,212.00, plus interest pursuant to s. 52(5), as a result of the overpayment of IRBs made on the basis of wilful misrepresentation.