CITATION: Ravilotchanan v. Allstate Insurance Company of Canada, 2024 ONSC 1629
DIVISIONAL COURT FILE NO.: DC-23-00000249-00000 DATE: 2024/03/21
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Myers and Sheard JJ.
BETWEEN:
Yogaranjini Ravilotchanan
Appellant
– and –
Allstate Insurance Company of Canada
Respondent
Gregory Gryguc, for the Appellant
Ian D. Kirby, for the Respondent
HEARD at Toronto: March 18, 2024
BY THE COURT
[1] Yogaranjini Ravilotchanan appeals from the Decision and Order of Vice Chair, D. Gregory Flude, of the Licence Appeal Tribunal (“LAT”) dated February 7, 2023, ordering Ms. Ravilotchanan to repay to Allstate Insurance Company of Canada (“Allstate”) the $29,570.92, including interest, paid to her in income replacement benefits ($23,600) and attendant care benefits ($5,970.92) (the “Benefits”).
[2] After hearing the appellant’s submissions, the court did not call on the respondent and dismissed the appeal from the Bench with reasons to follow. These are the reasons.
[3] Following a motor vehicle accident on February 25, 2016, Ms. Ravilotchanan applied for statutory accident benefits, including income replacement and attendant care benefits. Allstate paid Ms. Ravilotchanan a total of $41,597.02.
[4] After paying the Benefits, Allstate was alerted by Wawanesa Mutual Insurance (“Wawanesa”) that Ms. Ravilotchanan, a personal support worker, was working for a clinic, North Agincourt Healthcare Inc. (“Agincourt”) providing PSW services. In response to a request for disclosure, Wawanesa sent Allstate a Statutory Declaration executed by Ms. Ravilotchanan.
[5] In the Statutory Declaration, Ms. Ravilotchanan attested that she had been working for Agincourt providing PSW services to Wawenesa’s insured, at a time during which she was receiving the Benefits.
[6] Section 52 of the Schedule[^1] provides that an insured is liable to repay benefits paid as a result of fraud or wilful misrepresentation. As a result of Wawenesa’s disclosure, Allstate brought an application to the LAT for return of benefits paid to Ms. Ravilotchanan.
[7] In separate proceedings, Wawanesa sued Ms. Ravilotchanan and others for the return of payments made to Agincourt. In her statement of defence in that litigation, Ms. Ravilotchanan admitted that she had been paid for some of the alleged services for which Wawanesa was seeking repayment. The Wawanesa action was settled in June 2022 with a payment to Wawanesa, to which Ms. Ravilotchanan did not contribute.
LAT Reasons for Decision
[8] In his Reasons for Decision and Order, Vice-Chair D. Gregory Flude considered: 1) the statements made by Ms. Ravilotchanan in the Statutory Declaration, including that she had performed 6,700 hours of services; 2) the admissions in her statement of defence and cross-claim in the Wawanesa action; and, 3) her evidence at the LAT hearing denying that she had provided and/or received payment for PSW services while receiving the Benefits.
[9] Vice-Chair Flude noted that the determination of Allstate’s claim would come down to a determination of Ms. Ravilotchanan’s credibility.
[10] He concluded that he had "no confidence in the truth of any of the evidence" given by Ms. Ravilotchanan at the LAT hearing; that the evidence showed that she had worked with Agincourt “during a period when she was receiving an income replacement benefit and an attendant care benefit from Allstate”; and, that she and Agincourt had entered into “a scheme to get money from Wawanesa”.
[11] With respect to the Statutory Declaration, Vice-Chair Flude noted that after receiving it, Allstate served a notice for an appointment for an Examination Under Oath pursuant to s. 33 (2) of the Schedule. Ms. Ravilotchanan did not attend the examination, nor did she give an explanation for her refusal to do so.
[12] Vice-Chair Flude considered the applicability of s. 11 of the Schedule, which permits a claimant to attempt to return to work while receiving an income replacement benefit and noted that, had she been honest with Allstate, Ms. Ravilotchanan would have been entitled to receive “some amount” in income replacement benefits.
[13] However, based on his assessment of the evidence, Vice-Chair Flude concluded that Ms. Ravilotchanan had wilfully or fraudulently misrepresented her ability to earn an income and had wilfully misrepresented her need for an attendant care benefit. On that basis, he ordered her to repay the Benefits.
Law and Analysis
[14] Ms. Ravilotchanan submits that the adjudicator erred in the application of s. 52 of the Schedule to the evidence, which she says is an error of mixed fact and law that is subject to appeal. We disagree.
[15] The jurisdiction of this court is found in s.11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched.G, which limits this appeal to questions of law only, reviewable on a correctness standard, which includes legal principles extricable from questions of mixed fact and law. There is otherwise no right of appeal on questions of fact, or mixed fact and law. The application of legal principles to the evidence is a question of mixed fact and law: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.
[16] Ms. Ravilotchanan has not identified an extricable legal error in this case. It was within the purview of Vice-Chair Flude to assess Ms. Ravilotchanan’s credibility and to make factual findings based on his assessment of the evidence. As set out in the Reasons, Vice-Chair Flude’s factual findings were supported by the evidence and determinative of Allstate’s claim.
[17] In our view, the appeal raises no issues of law.
Disposition
[18] The appeal is dismissed. As agreed between counsel, costs are to be paid by the Appellant to the Respondent, Allstate, fixed in the amount of $6,500.
Lococo J.
Myers J.
Sheard J.
Date: March 21, 2024
CITATION: Ravilotchanan v. Allstate Insurance Company of Canada, 2024 ONSC 1629
DIVISIONAL COURT FILE NO.: DC-23-00000249-0000
DATE: 2024/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Myers, and Sheard JJ.
BETWEEN:
Yogaranjini Ravilotchanan
Appellant
– and –
Allstate Insurance Company of Canada
Respondent
REASONS FOR JUDGMENT
BY THE COURT
Date: March 21, 2024
[^1]: Statutory Accident Benefits Schedule – Effective September 1, 2010.