Court File and Parties

COURT FILE NO.: CV-13-3844-00 DATE: 2016 09 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RBC GENERAL INSURANCE COMPANY Daniel A. Fiorita, for the Plaintiff Plaintiff

- and -

PAMELA G. FIELD In Person Defendant

HEARD: March 8, 9, April 8 and 29, 2016

REASONS FOR JUDGMENT

Justice M.G. Emery

[1] RBC General Insurance Company (“RBC”) brings this action to recover certain accident benefits and amounts for property loss paid to its insured, Pamela Field. Ms. Field applied for and received those payments under her policy with RBC as a result of a motor vehicle accident in which she was injured on November 20, 2007.

OVERVIEW

[2] RBC brings this action alleging Ms. Field made false statements or committed fraud to obtain the amounts paid to her for claims made under the policy. RBC alleges that Ms. Field was not entitled to make those claims under her policy because she was operating the motor vehicle when her driver's licence was suspended at the time of her accident.

[3] When confronted with a driver’s licence record showing the suspension, Ms. Field insisted that her driver's licence had been suspended by the Ministry of Transportation (MTO) in error. RBC alleges that Ms. Field subsequently provided documents that were falsified or fabricated to support her story.

[4] RBC seeks the repayment of accident benefits in the amount of $229,672.70 she received for income replacement, housekeeping and home maintenance and visitor’s expenses. This repayment is claimed because RBC was not required to pay particular benefits to Ms. Field under section 30 (1) of the Statutory Accident Benefits Schedule, Ontario Regulation 403/96 (the “SABS”) if she was driving the automobile at the time of the accident without a valid driver’s licence.

[5] Ms. Field was also paid $21,201.32 for attendant care benefits. RBC does not seek to recover as those benefits are not excluded from payment to an insured in these circumstances under section 30 (1).

[6] RBC claims that as Ms. Field’s driver’s licence was suspended on the date she was injured, Ms. Field was in breach of statutory condition 4.(1) in Regulation 777/93 under the Insurance Act. Statutory condition 4.(1) provides that an insured shall not drive or operate an automobile unless the insured is authorized by law to drive or operate an automobile. It is RBC’s position that Ms. Field was not authorized by law to drive an automobile at the time because her driver’s licence was suspended.

[7] RBC seeks the return of payments to Ms. Field for claims she made for property damage and related loss in the amount of $10,116.66. This repayment is claimed because her right to recover property loss was forfeited under section 233 of the Insurance Act when she breached the policy.

[8] RBC also seeks damages for the cost of various medical examinations and occupational assessments it paid to evaluate Ms. Field from time to time with respect to her claim for accident benefits.

[9] Finally, RBC claims $100,000 for punitive damages in the amended statement of claim.

THE PLAINTIFF’S CASE

[10] Ms. Field was insured by RBC under Ontario automobile insurance policy number 21329369 (“the policy”) on November 20, 2007. On that day, Ms. Field was injured in a motor vehicle accident while driving her motor vehicle in Lindsay, Ontario.

[11] Immediately thereafter, Ms. Field filed a claim for property damage and accident benefits under her policy with RBC.

[12] RBC advised Ms. Field after receiving her claim that a driver’s licence search revealed that her licence was suspended at the time the accident occurred. Ms. Field informed RBC that her driver’s licence had been suspended in error. She told RBC that she had contested a traffic ticket she had received in Toronto in May 2007, and that a trial date had been set. Ms. Field told this to Ms. Thompson as she believed the Toronto ticket to be a reason for the suspension of her driver’s license. According to Ms. Field, her driver’s licence had been suspended in error as she had not been convicted of that offence.

[13] RBC ultimately made payments to Ms. Field based on her representations to Ms. Thompson. Those representations were buttressed by documents Ms. Field provided about defending the Toronto charge. The documents included a letter from one Mary Rossi at the Toronto courts to Ms. Field. This letter purportedly confirmed that a trial date had been set.

[14] Ms. Field admits that she was paid the following amounts under the SABS from RBC under the policy: (a) Income Replacement Benefits in the total amount of $204,881.80; (b) Housekeeping and Home Maintenance Benefits in the total amount of $9,422.86; (c) Attendant Care Benefits in the total amount of $21,201.32; and (d) Expenses of Visitors in the total amount of $15,368.04.

[15] In the event that Ms. Field was driving on November 20, 2007 when her licence was suspended, Ms. Field was not entitled to income replacement benefits, housekeeping and home maintenance benefits and visitor expenses. RBC therefore claims it is entitled to the return of $229,672.70 for benefits she wrongfully claimed and received.

[16] Ms. Field also confirms that she received the following payments for property loss from RBC: (a) Property Damage – vehicle – in the total amount of $8,826.80; (b) Property Damage – Loss of Use in the total amount of $800.00; (c) Property Damage – Clothing – in the total amount of $489.86;

[17] In the course of adjusting the claim for accident benefits made by Ms. Field, RBC incurred various expenses for having Ms. Field assessed by doctors and other assessment professionals. RBC claims $39,266.50 for the total of the amounts invoiced by and paid to those doctors and assessment professionals in the course of adjusting the accident benefit claims made by Ms. Field.

[18] Ms. Field does not admit the amounts invoiced to RBC by the doctors and assessment professionals who examined her for accident benefits. Ms. Field disputes that RBC has proven the legal basis to claim those amounts against her.

[19] The action is based on payments wrongfully claimed by Ms. Field when she knew that her driver’s licence was suspended. Counsel for RBC called witnesses to prove RBC’s claim that Ms. Field knowingly made one or more false statements to obtain accident benefits and to recover amounts for property loss under her policy. RBC also called evidence to establish the damages claim for amounts incurred and paid to examine and assess Ms. Field throughout the claims process.

Tasha Thompson (Wilcox)

[20] Tasha Thompson was the first witness called to give evidence for RBC. Ms. Thompson, then Tasha Wilcox, was the property damage adjustor at RBC in November 2007 with whom Ms. Field communicated to make her claim.

[21] Ms. Thompson contacted Ms. Field from time to time while adjusting her property damage claim. In the course of making that claim, Ms. Field would provide information to Ms. Thompson in support of that claim, make statements and provide documents provided to support facts she represented as true.

[22] Ms. Thompson was technically an inside claims advisor at RBC in November 2007. Ms. Field initially contacted Joseph Coyle at RBC on November 20, 2007. Mr. Coyle gathered the facts and ran a motor vehicle search on Ms. Field that revealed her driver’s licence was suspended at the time of the accident on November 20, 2007.

[23] Ms. Thompson advised Ms. Field that RBC was denying her claim on the basis that she had driven her automobile when her licence was suspended, in breach of her policy.

[24] Ms. Thompson spoke with Vaughn Subyran, a personal injury adjuster at RBC, on November 21, 2007. According to the claims notes on file, Mr. Subyran had prepared a Non-Waiver Agreement and provided Ms. Field with a reservation of rights letter because of the suspension. Mr. Subyran also advised Ms. Thompson that Ms. Field had told him that her driver’s licence had been lost in the accident.

[25] Ms. Field expressed surprise at being informed that her driver’s licence had been suspended. She stated that she had paid the fines for two traffic tickets issued to her in Lindsay and in London in April, 2007. Ms. Field told Ms. Thompson that she was fighting the ticket that had been issued to her in Toronto on May 22, 2007 for failure to wear a seat belt. It was at this time that Ms. Field told Ms. Thompson that if her driver’s license was suspended, it had been suspended in error because she was fighting the Toronto ticket.

[26] On November 22, 2007, Ms. Field faxed a Notice of Trial from the trial co-ordinator for the Provincial Offences court in Toronto to Ms. Thompson. She did this to confirm that a trial date had been set for April 16, 2008.

[27] Ms. Thompson advised Ms. Field that she required further documents from her to show that her licence had been suspended in error before RBC could process her claim.

[28] On November 23, 2007, Ms. Thompson left a voicemail for Ms. Field that advised her RBC would need further confirmation from the Ministry of Transportation (MTO) that all fines had been paid. Ms. Thompson confirmed in her system notes that RBC would not be in a position to authorize a claim until it had confirmation regarding the status of Ms. Field’s driver’s licence.

[29] Ms. Field again told Ms. Thompson over the telephone that the MTO had suspended her driver’s licence in error. She informed Ms. Thompson that obtaining a letter from the MTO would be difficult. However, she promised Ms. Thompson that she would send her bank records to show that the tickets she had been given in April had been paid.

[30] On November 26, 2007, Ms. Field sent an email to Ms. Thompson attaching a bank statement for the month of July 2007. This email specifically pointed to an entry dated July 2, 2007 showing a debit in the amount of $342.50 made to “Ontario Court O”. Ms. Field testified at trial that this entry related to the payment of her outstanding fines for the tickets she had been issued in April. Ms. Field told Ms. Thompson that this payment was proof that the MTO had made an error in suspending her driver’s licence.

[31] Ms. Thompson required proof that Ms. Field was contesting the Toronto charge before she was prepared to process the property damage claim. On November 30, 2007, Ms. Field forwarded an email dated November 28, 2007 to Ms. Thompson purportedly from “Mary Rossi” at the City of Toronto courts. The subject line of this email read: “FW: Court Date Suspended Licence”.

[32] The email purporting to be from Mary Rossi contained statements that supported Ms. Field’s statement that her driver’s licence had been suspended in error with respect to the Toronto ticket. It used such terms as “we are taking the steps necessary to reverse this”, “the court has reinstated your licence” and “the MTO has been informed” and “notice has been sent to the default fines control centre”. The email even goes so far as to apologize for the mistake made by the Toronto Enforcement Office.

[33] After receiving these documents from by Ms. Field ostensibly from third parties, Ms. Thompson concluded that Ms. Field’s driver’s licence had in fact been suspended in error. Ms. Thompson specifically believed and relied upon the email purporting to be from Ms. Rossi when she reached this conclusion.

[34] Upon receiving this evidence and the representations of Ms. Field, RBC proceeded with approving her property damage claim.

[35] RBC ultimately paid those property damage claims because Ms. Thompson accepted Ms. Field’s statements that her driver’s licence had been suspended in error.

[36] At trial, Ms. Thompson testified that if RBC had known that Ms. Field’s driver’s licence had not been suspended in error and that her licence was actually suspended on November 20, 2007, RBC would not have approved her claims. RBC would not have extended coverage to pay the property damage claims, or the accident benefits Ms. Field would later claim.

[37] Ms. Field did not cross-examine Ms. Thompson.

Mary Rossi

[38] RBC next called Maria Rossi as a witness. Ms. Rossi worked for the City of Toronto court, specifically in the Enforcement Unit, between 2002 and 2012. The Enforcement Unit is a department of the Toronto court that deals with driver’s licence suspensions after a conviction has been entered for a ticket that has not been contested or paid.

[39] I also found it is also significant to note from Ms. Rossi’s evidence that the Enforcement Unit has nothing to do with trial scheduling.

[40] Ms. Rossi denied ever sending an email on November 28, 2007 to Ms. Field. When shown a copy of the email purportedly from M. Rossi to Ms. Field dated November 28, 2007, Ms. Rossi denied any knowledge of that email. Ms. Rossi then proceeded to describe characteristics in that email to show it did not come from her.

[41] First, Ms. Rossi explained that she would never make a representation like that found in the email that the court would reimburse or waive the fee of $150 to reinstate the driver’s licence of a person that had been suspended in error.

[42] Second, Ms. Rossi testified that her email at the City of Toronto court on November 28, 2007, Enforcement Department, was mrossi@toronto.ca. The email provided by Ms. Field to RBC purporting to be from Ms. Rossi on November 28, 2007 shows RossiM@toronto.ca as the sender’s email address.

[43] Third, Ms. Rossi explained that she does not sign off on emails in the manner shown. The email dated November 28, 2007 is signed off, “Regards, Mary”. Ms. Rossi denies that she ever signs off a business email that way. Ms. Rossi testified that she always signs off with, “Yours truly, M. Rossi” to any business email she sends.

[44] Ms. Field cross-examined Ms. Rossi both before and after Ms. Rossi answered questions from the court. Ms. Rossi’s answers were consistent with the evidence she gave on direct examination.

Karen Migliarini

[45] Karen Migliarini was the next witness called by RBC. Ms. Migliarini is the Senior Technical Support Specialist for the City of Toronto. Ms. Migliarini is in charge of the email system at the City, a position she has held for 18 years.

[46] Ms. Migliarini gave evidence that she was asked in March of 2012 to investigate the existence of the email address RossiM@toronto.ca as of November 2007. Ms. Migliarini testified that she concluded after that investigation that no person at the City of Toronto was assigned that email address in November 2007.

[47] Ms. Migliarini testified that the only two email addresses at the City of Toronto similar to those in issue in November 2007 were mrossi@toronto.ca and mrossi1@toronto.ca. The first address was assigned to an individual employed with the City planning department. The other address was assigned to Maria Rossi, a court services employee. Ms. Migliarini also testified that the email produced by Ms. Field dated November 28, 2007 from RossiM@toronto.ca did not come from the City of Toronto.

Karen Dunn

[48] The court next heard evidence about the circumstances leading up to the suspension of Ms. Field’s driver’s licence on July 12, 2007 for tickets issued to her in Lindsay, Ontario.

[49] Karen Dunn is a Provincial Offences Manager for the City of Kawartha Lakes in the Lindsay Provincial Offences court. Ms. Dunn provided evidence from the Lindsay Provincial Offences court file for the traffic tickets issued to Ms. Field in 2007. This evidence revealed that Ms. Field received one ticket for speeding and one ticket for driving without a valid permit on April 5, 2007 in the City of Kawartha Lakes. These tickets were filed with the Lindsay Provincial Offences court on April 10, 2007.

[50] On May 22, 2007, Ms. Field was convicted of these offences by a Justice of the Peace because no fine had being paid for those tickets, and no trial date had been requested. The conviction was entered on a basis commonly known as a “failure to respond”.

[51] Ms. Dunn gave evidence of the fact that the daily bank deposit list for the Lindsay court showed a cash payment of $342.50 made by Ms. Field or someone on her behalf on November 23, 2007. This amount paid the fines under the two tickets issued in the City of Kawartha Lakes and filed with the Lindsay Provincial Offences court. This amount was also sufficient to pay a third ticket issued at the City of London and filed with the London Provincial Offences court.

[52] Ms. Dunn testified that the document showing proof of payment on November 23, 2007 also showed that at the time of payment, the conviction entered for each of those offences was marked “SS”. Ms. Dunn explained the “SS” notation indicates that someone at the Provincial Offences court office in Lindsay had requested that the MTO suspend Ms. Field’s driver’s licence for failure to pay the imposed fines.

[53] Ms. Field did not cross-examine Ms. Dunn on her evidence.

Lori Walton

[54] Lori Walton is the coordinator of Court Administration with the City of London Provincial Offences court. Ms. Walton testified that the court records indicate that Ms. Field received a traffic ticket on April 13, 2007 in the London area for failure to wear her complete seatbelt assembly. That ticket was subsequently filed with the London Provincial Offences court. The records also show that Ms. Field was convicted of this charge on May 29, 2007 by the presiding Justice of the Peace because of a failure to respond.

[55] Ms. Walton further testified that this conviction was entered in the Preliminary Enforcement Report on July 13, 2007, which is the first step in the process of having the driver’s licence of a person suspended. The London Provincial Offences court did not actually make a request to the MTO that Ms. Field’s driver’s licence be suspended to MTO until August 7, 2007. That request was finally made as Ms. Field took no steps to pay the fine or to have the conviction set aside.

[56] Ms. Walton testified that payment of the fine for this ticket was not received until November 23, 2007. The court records show that the payment was made by or on behalf of Ms. Field at the court office in Lindsay.

[57] Ms. Field did not cross-examine Ms. Walton. Therefore, her evidence on these facts is not challenged.

William Kwan

[58] RBC called William Kwan as a witness. Mr. Kwan works in the data retrieval unit at the MTO and was called to testify about Ms. Field’s driving record.

[59] Mr. Kwan testified that the tickets issued to Ms. Field in Lindsay and in London, along with their conviction dates, are shown on Ms. Field’s driving record. He testified that the MTO suspended her driver’s licence on July 12, 2007 for the convictions entered by the Lindsay Provincial Offences court on May 22, 2007.

[60] Mr. Kwan also testified that Ms. Field was notified of the suspension of her driver’s licence arising from the conviction of the charges in the Lindsay Provincial Offences Court in a letter dated July 12, 2007. This letter was sent by the MTO to Ms. Field at 62 Cambridge Street South, Apartment 2, Lindsay, Ontario.

[61] Mr. Kwan gave evidence based on MTO records that the fines for the tickets issued in Lindsay and in London were not paid until November 23, 2007. Since reinstatement of a driver’s licence usually takes up to four days, Ms. Field’s driver’s licence was not reinstated until November 27, 2007.

[62] Mr. Kwan further explained that the MTO records show that Ms. Field changed her mailing address with the MTO on September 11, 2007 from 62 Cambridge Street South, Apt. 2 to 165 Orchard Park Road, in Lindsay, Ontario. He testified that the Ministry did not issue Ms. Field a new driver’s licence showing that new address because her driver’s licence was suspended at the time.

Paul Menezes

[63] The affidavit of Paul Menezes and the affidavit of Tanya Moreira were filed with the court pursuant to Section 33 of the (Ontario) Evidence Act as they are employees of Royal Bank of Canada. Mr. Menezes was also called to give viva voce evidence at the trial. The evidence given by each of them was directed to Ms. Field’s bank account No. 02662 5118146 and her defence that she had paid the fines from that account for the tickets issued in Lindsay and in London prior to the date of her accident on November 20, 2007.

[64] Mr. Menezes deposed in his affidavit, and testified at the trial that the account was opened on July 10, 2007. Similarly, the affidavit of Ms. Moreira deposes that the account was not opened until July 10, 2007.

[65] Mr. Menezes testified that any bank records or account summaries containing entries for any time prior to July 10, 2007 for this account did not come from Royal Bank.

[66] This evidence must be compared to the bank statements produced by Ms. Field purporting to show transactions on this account prior to July 10, 2007. Ms. Field sent an email to Ms. Thompson on November 26, 2007 with an attachment purporting to be a bank statement for July 2007. Ms. Field specifically refers in that email to a banking entry on July 2, 2007 in the amount of $342.50 to “Ontario Court O” as being the alleged payment of the outstanding fines for the tickets issued in Lindsay and in London. This is the evidence Ms. Field relies upon to state that those tickets could not be the reason her license was suspended, and that she was being truthful to Ms. Thompson about paying those fines.

Matthew Gibbons

[67] Matthew Gibbons was called as the final witness for RBC. Mr. Gibbons is a litigation specialist employed at Royal Bank. Mr. Gibbons was asked to testify about the costs incurred by the plaintiff for the examination and assessment of Ms. Field for her accident benefits. This evidence was called for the purpose of proving damages with respect to the expenditure of funds to have Ms. Field examined and assessed throughout the accident claims process.

[68] Mr. Gibbons testified that the cost of having those examinations and assessments conducted relating to recoverable benefits totals $39,293.50. His evidence consisted of identifying the reports filed, the invoices received for the services provided by the medical practitioners or assessors, and the fact they were paid by RBC.

Read-Ins from Discovery

[69] Counsel for RBC read in certain evidence given by Ms. Field at her examination for discovery before closing the case for RBC. The parts of Ms. Field’s examination for discovery read into the record contained admissions that can be summarized as follows:

1. She understands that her driver’s licence was suspended on November 20, 2007 – page 59
2. She understands that if she gets speeding tickets or seatbelt tickets and does not pay the fines that her driver’s licence would be suspended – page 59
3. She was aware that she received the three traffic tickets which are in evidence in this case – page 59 – 60
4. She is aware that her driver’s licence was suspended from July 12, 2007 to November 30, 2007 – page 60
5. She understands that between July 12, 2007 and November 30, 2007 she was not authorized by law to operate a motor vehicle.
6. She acknowledged that on November 26, 2007 she sent an email to Ms. Wilcox (now Ms. Thompson) including a July 2007 Bank Statement – April 8, 2016 at Page 61. “I see in the file that on November 26, 2007 you sent an email to Natasha Wilcox including a bank statement from July of 2007, do you recall that? Answer: “I believe so.”
7. That she uses the email address killer_eyez81@hotmail.com – the same email used to send the emails to Ms. Thompson at RBC.
8. She admitted that she sent the faxes and bank records to Kaitlyn and Corinne at the Lindsay Court, and that it was related to the tickets in evidence in this case – page 72.

THE DEFENDANT'S CASE

[70] Ms. Field testified in her own defence. She did not call any other witnesses.

[71] Ms. Field gave evidence that she believed the tickets issued in Lindsay and in London had been paid in July 2007. However, she provided no documentary evidence from either court location to support that belief.

[72] Ms. Field further testified that RBC obtained the email from Ms. Rossi to herself pursuant to an authorization she had provided to Ms. Thompson. RBC therefore obtained this information directly from the Toronto courts.

[73] The court heard evidence that Ms. Field’s driver’s licence had actually been suspended on July 12, 2007 because of convictions entered against her under the Provincial Offences Act for traffic tickets issued in Lindsay and in London, Ontario in April 2007. Ms. Field maintained her position throughout the trial that her driver’s licence was not suspended on November 20, 2007 because of these tickets, stating she had paid the outstanding traffic tickets issued to her in Lindsay and in London, and that a trial date had been set for the traffic ticket she had received in Toronto.

[74] Ms. Field settled her tort action for the accident in May, 2013. This settlement was preceded by a further investigation by RBC in 2012 about whether Ms. Field’s driver’s licence had actually been suspended as of November 20, 2007. Ms. Field provided a second round of documents in 2012 purporting to show she had paid the fines under the tickets issued in Lindsay and in London to support her position that her driver’s licence had been suspended in error.

[75] On March 29, 2012, Ms. Field sent a fax to the Lindsay Provincial Offences Court enclosing a bank record from July 2007 showing the banking entry on July 2, 2007 for a payment in the amount of $342.50.

[76] On November 18, 2012, Ms. Field sent another fax to the Lindsay Provincial Offences court with further bank statements. In this fax, Ms. Field produced a bank statement for the month spanning June 8, 2007 to July 8, 2007. In this bank statement, there was a banking entry for a payment in the amount of $308.00 in June, 2007 to the City of Kawartha Lakes. In her evidence, Ms. Field stated that this payment was made to pay the fines under the tickets issued in Lindsay and in London.

[77] Ms. Field relied upon the bank statements that she sent to Ms. Thompson in November of 2007, and to the court offices in Lindsay and in London in 2012. Ms. Field disagreed with the witnesses from Royal Bank of Canada and maintained the position that her account at RBC was open prior to July 10, 2007.

[78] Ms. Field maintained her position that she had exchanged emails with Maria Rossi at the City of Toronto with respect to the ticket issued in Toronto and her request for a trial date.

[79] Ms. Field explained that the reason why the Royal Bank of Canada account statements in the affidavit of Ms. Moreira from Royal Bank did not show transactions prior to July 10, 2007 was because Royal Bank had told her the bank was only required to keep records for seven years.

ANALYSIS

Position of the Plaintiff

[80] It is RBC’s position that Ms. Field knew that her driver’s licence was suspended on November 20, 2007 when she was involved in an accident and for which she claimed accident benefits.

[81] In order to access the accident benefits under her policy with RBC, Ms. Field made false statements to RBC that her driver’s licence had been suspended in error. Ms. Field produced documents, including the Notice of Trial issued by the Toronto court and the email from Maria Rossi, purporting to show her licence could not have been suspended for the ticket she had received in Toronto on May 22, 2007.

[82] Ms. Field also continued to produce banking statements from Royal Bank of Canada showing payments made for the fines under the tickets issued in Lindsay and in London to show her licence could not have been legitimately suspended for non-payment for those tickets either. All of these documents were falsified and amounted to a fraud perpetrated against RBC as the insurer.

[83] The fact that Ms. Field’s driver’s licence was suspended disentitled her to accident benefits under Section 30 of the SABS because she was driving her automobile without a valid driver’s licence. Section 30 reads as follows:

30. (1) The insurer is not required to pay an income replacement benefit, a non-earner benefit or a benefit under section 20, 21 or 22 in respect of a person who was the driver of an automobile at the time of the accident, (a) if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy; (b) if the driver was driving the automobile without a valid driver’s licence; (c) if the driver is an excluded driver under the contract of automobile insurance; or (d) if the driver knew or ought reasonably to have known that he or she was operating the automobile without the owner’s consent. O. Reg. 403/96, s. 30 (1) .

[84] Later, in the SABS, section 47(1)(a) and 47(3) and (4) provide for the repayment of accident benefits in the following circumstances:

47. (1) A person shall repay to the insurer, (a) any benefit under this Regulation 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;

48. (3) The obligation to repay a benefit does not apply unless the notice under subsection (2) is given within 12 months after the payment was made. O. Reg. 403/96, s. 47(3)

49. (4) Subsection (3) does not apply if the benefit was paid as a result of wilful misrepresentation or fraud. O. Reg. 403/96, s. 47(4)

[85] RBC further claims that Ms. Field forfeited her right to claim indemnity under Section 233(1) of the Insurance Act because she contravened a term of her insurance contract under Statutory Condition 4.(1) that as an insured she shall not drive or operate an automobile unless authorized by law to drive or operate the automobile. The Divisional Court held in Vanderwal v. State Farm Mutual Automobile Insurance Co., 20 O.R. (3d) 401 that driving without a valid driver’s licence is in effect driving an automobile when not authorized by law.

[86] If Ms. Field was driving her automobile on November 20, 2007 when her driver’s licence was suspended, she was driving or operating her automobile when she was not authorized by law to do so. She would therefore be in breach of her policy with RBC. Statutory condition 4.(1) under Ontario Regulation 777/93 reads as follows:

4. (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

[87] RBC claims that as a result of Ms. Field’s conduct to justify her claims, section 233 of the Insurance Act applies. Section 233 (1) and (2) states as follows:

233. (1) Where, (a) an applicant for a contract, (i) gives false particulars of the described automobile to be insured to the prejudice of the insurer, or (ii) knowingly misrepresents or fails to disclose in the application any fact required to be stated therein; (b) the insured contravenes a term of the contract or commits a fraud; or (c) the insured wilfully makes a false statement in respect of a claim under the contract, a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited. R.S.O. 1990, c. I.8, s. 233 (1) .

(2) Subsection (1) does not invalidate such statutory accident benefits as are set out in the Statutory Accident Benefits Schedule, R.S.O. 1990, c. I.8, s. 233(2) ; 1993, c. 10, s. 1.

[88] RBC brings this claim under Section 233(1) (b) and (c) to recover the amounts paid to Ms. Field for property loss because the claim made by Ms. Field for property loss under her policy was invalid. If she knowingly or wilfully made a false statement, she forfeited her right to recover indemnity. RBC brings this claim alleging the tort of civil fraud as a cause of action to recover damages.

Position of the Defendant

[89] Ms. Field takes the position that she had paid the fines under the tickets issued in Lindsay and in London on July 2, 2007 if not before, and that she had requested a trial date from the Toronto Provincial Offences court for the ticket issued in Toronto.

[90] Ms. Field argues there was no basis to suspend her driver’s licence prior to November 20, 2007. Any suspension of her driver’s licence in 2007 was in error. Ms. Field relies upon the fact that the investigating officer at the accident on November 20, 2007 did not tell her that her driver’s licence was not suspended after conducting a driver’s licence search at the scene. She also testified that she had changed her address at the Ministry of Transportation in September 2007, without incident.

[91] Ms. Field also takes the position that Ms. Thompson and Ms. Panchal told her that once her driver’s licence was reinstated, it was open for Ms. Field to apply for coverage under the policy. RBC properly paid the property loss she was claiming, and properly processed the accident benefits arising from the accident once her licence was reinstated on November 30, 2007.

Fraud as cause of action

[92] There is no dispute between the parties over the four elements that make up the tort of civil fraud. These four elements were reviewed in detail by Justice Karakatsanis on behalf of the Supreme Court of Canada in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, which are:

1. A false representation made by the defendant;
2. Some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness);
3. The false representation caused the plaintiff to act; and
4. The plaintiff’s actions resulted in a loss.

[93] I asked the parties to address the standard of proof for civil fraud. I accept that the standard of proof for civil fraud is on a balance of probabilities. The Supreme Court of Canada stated in F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41, that there is only one standard of proof to be applied in civil cases, and that is the balance of probabilities. At paragraph 40, Justice Rothstein stated that:

[40] Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow.

[94] At paragraph 49, His Lordship went on to say:

[49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

[95] RBC marshalled its case to answer and disarm each defence erected by Ms. Field. The evidence given by the witnesses called for the plaintiff and the answers read in from Ms. Field’s examination for discovery not only met the balance of probabilities for proving liability, the proof was overwhelming against Ms. Field. Her evidence in chief was neutralized by Mr. Fiorita’s cross- examination, leaving admissions in its wake consistent with the theory of RBC’s case.

1. Was a False Statement Given?

[96] I deal first with the issue of whether a false statement or representation was given by Ms. Field to RBC when making the claim for property loss and asked the benefits under her policy with RBC.

[97] RBC called evidence that Ms. Field was confronted with the driver’s licence search on November 20, 2007 showing that her driver’s licence was suspended on that date. Ms. Field made a false statement to Ms. Thompson at that time to persuade her that her driver’s licence had been suspended in error by the MTO or the Provincial Offences court in Toronto. On the stand, Ms. Field continued that position with her belief that the tickets in Lindsay and in London had been paid previously, therefore providing no basis to suspend her driver’s licence.

[98] Ms. Field could offer no documentary evidence to support her testimony that she had paid the tickets she had been given in Lindsay and in London except for documents from her bank she tendered in evidence.

[99] The bank statements that Ms. Field produced on November 26, 2007 to show Ms. Thompson that she had paid the fines under the tickets issued in Lindsay and in London were refuted by the evidence given Paul Menezes from Royal Bank of Canada. Mr. Menezes testified that Ms. Field’s account had been open on July 10, 2007, where payment under the documents she tendered in evidence showed that payment was purportedly paid on July 2, 2007.

[100] Ms. Field compounded her false statement made to Ms. Thompson that the Toronto charge could not be the reason her license had been suspended by providing the email from Mary Rossi at the Toronto court. That evidence was refuted by Ms. Rossi and Ms. Migliarini when each gave her evidence. I accept their evidence and find as a fact that the address from which the email was allegedly sent did not belong to Ms. Rossi.

[101] I found the evidence given by Ms. Thompson on behalf of RBC, and by Mary Rossi, Karen Migliarini, and Mr. Menezes to be believable and reliable. Not one of them had any reason to tell anything but the truth. On the other hand, I found Ms. Field to be less than credible in all the evidence she gave. In particular, I did not believe Ms. Field’s evidence about the representations she made to RBC that the fines under the tickets issued in Lindsay and in London had been paid in early July 2007.

[102] Although Ms. Field testified that she left it to Matt Boudreau to check with the Lindsay Provincial Offences court office about whether the tickets issued in Lindsay had been paid, it was her responsibility to communicate truthfully with Ms. Thompson and Ms. Panchal at RBC. Instead, Ms. Field told the court she delegated that role to Mr. Boudreau because she could not use his computer. Ms. Field admitted that Mr. Boudreau communicated with RBC with her authority, and authorized RBC to communicate with Mr. Boudreau on her behalf. Mr. Boudreau was essentially acting as her agent, and his misstatements, including the fabricated bank statements he transmitted to RBC purporting to show the payment of the fines for the Lindsay tickets, were her misstatements. When those misstatements were made to RBC after Mr. Boudreau would have learned convictions had been entered after inquiring at the Lindsay court, Ms. Field by her agent was wilfully making a false statement to her insurer that those fines had been paid before.

[103] I do not give any weight to Ms. Field’s assertion that she had filed a change of address with the Ministry of Transportation without being told her driver’s licence was suspended. The act of notifying the MTO of a change of address does not necessarily trigger a motor vehicle search. Nor do I give any weight to her evidence that the investigating officer at the scene on November 20, 2007 did not tell her that the roadside motor vehicle search had revealed her licence to be suspended. Even if the police officer had given Ms. Field that impression, it was nullified the next day when she was advised by Ms. Thompson about the results of the motor vehicle search.

[104] The moment of truth occurred when Ms. Thompson confronted Ms. Field with the fact that the search run by RBC indicated her driver’s licence was suspended at the time of the accident. It was up to Ms. Field to prove that this suspension was a genuine error, something she could not do. By falsely alleging the error had been made by others and by fabricating the email from Mary Rossi at the City of Toronto, she was making a false statement.

[105] Ironically, Ms. Field had already been suspended by the MTO for failure to pay the tickets issued in Lindsay at the time she was making the claims for property loss and accident benefits in November 2007. The Toronto charges were not the reason for that suspension. Going through the subterfuge of receiving the email from Ms. Rossi was irrelevant to the suspension of her license, and therefore unnecessary.

[106] This irony makes it all the more evident that the email seemingly from Mary Rossi was fabricated.

2. Did the Defendant know it was false?

[107] The second element requires evidence that the defendant had some level of knowledge that the statement made was false. Based on the admissions read into the record from Ms. Field’s examination for discovery and Ms. Field’s own cross-examination at trial, it is clear that Ms. Field had a conscious level of knowledge that the representations she was making about the Toronto charge to RBC was false. That level of knowledge is confirmed by her subsequent acts of fabricating the email from Mary Rossi.

[108] The evidence given at trial with respect to the tickets issued in Lindsay and in London established that Ms. Field paid $321 at the Lindsay court Office on November 23, 2007 for those fines. Payment of these fines three days after the date she was involved in a motor vehicle accident is cogent evidence that those fines had not been paid before that date. There was no evidence given by Ms. Field that she had contested either ticket given in Lindsay or in London. The inescapable conclusion is that those unpaid tickets resulted in convictions against Ms. Field by default.

[109] The evidence given by William Kwan from the Ministry of Transportation as to the fact that a Notice of Suspension was sent to Ms. Field on July 12, 2007 at her address at apartment #2, 62 Cambridge Street South in Lindsay was clear and uncontradicted. This was more than one month before she changed her address to 165 Orchard Park Road with the MTO in September 2007. I therefore find as a fact that the MTO sent a Notice of Suspension that Ms. Field would have received on or after July 12, 2007.

[110] Once the MTO had sent the notice of suspension to Ms. Field, I find on the balance of probabilities that she would have known that her driver’s licence was suspended and that she therefore knew or ought to have known that her driver’s licence was suspended at the time the accident occurred on November 20, 2007. Therefore, Ms. Field breached the terms of her insurance contract with RBC by driving an automobile when she was not authorized by law to do so, contrary to statutory condition 4.(1). Any representation she made to RBC General Insurance that her driver’s licence was not suspended, or that it had been suspended in error, was a false statement.

[111] In the course of the tort action, the status of Ms. Field’s driver’s licence on November 20, 2007 resurfaced in 2012. Ms. Field sent further bank records for her account at RBC to the Lindsay court to show that the fines for the tickets issued in Lindsay and in London had been paid in July 2007. I find that Ms. Field sent these records, intending to show the payments had been made even though they may not have been recorded as received, and that convictions had been entered against Ms. Field in error. Those bank records contained a bank statement for the month of June 8, 2007 to July 8, 2007.

[112] In cross-examination, it became apparent that Ms. Field’s bank statements at Royal Bank of Canada for the month ending July 8, 2011 had exactly the same entries on it as the bank account statement for the same month in 2007, except for an apparent entry showing an online payment to the Lindsay court on July 2, 2007. It is clear that the bank statement ending July 8, 2011 was altered to portray Ms. Fields bank account for the same month in 2007. This altered bank record allegedly showing a payment for Ms. Field’s tickets in Lindsay add to the confusion in her evidence about when and how those payments were made, thus compromising her credibility further.

[113] The bank statement ending July 8, 2007 also shows her name to be Pamela Field, even though other bank account statements in 2007 were addressed to her as Pamela Boudreau. Ms. Field went by the name Boudreau when she cohabited with her former partner, Matt Boudreau. The name Pamela Field appears on all other bank statements before and after the statement ending July 8, 2011. This was the name Ms. Field chose to use after that relationship ended.

[114] I do not rely on the bank records that Ms. Field sent to the court office in Lindsay in 2012 to make findings of fact that she knowingly or wilfully made a false statement to her insurer within the meaning of section 30(1) of the SABS, or section 233 of the Insurance Act. If sending those records amounted to a false statement, it was a false statement made to officials at the court, not to RBC. However, I have included these findings in my reasons as evidence of Ms. Field’s knowledge that the statements she had made to RBC in 2007 were false.

[115] I conclude from the evidence given by Karen Dunn from the Lindsay court and from Ms. Field’s cross-examination that the information provided to the Lindsay court in November 2012 confirmed Ms. Field’s level of knowledge that she had not paid the necessary fines under the tickets issued in Lindsay and London in July 2007. That finding, coupled with the finding that Ms. Field received or ought to have received the Notice of Suspension in July 2007 leads me to conclude that Ms. Field knew that her driver’s licence was suspended on November 20, 2007. She admitted as much during her cross-examination at trial:

Q: (at page 100): But ultimately your licence was not suspended in error, correct? A: Correct.

[116] The evidence is conclusive that Ms. Field knew the statements that she made to Ms. Thompson and to Ms. Panchal that her driver’s licence had been suspended in error were false.

3. Did the statement cause RBC to act?

[117] The evidence must show that Ms. Field’s representations caused RBC to act to meet the third element of the test for civil fraud. This is the element of reliance necessary to provide the causal link between the false statements given and damages. This element is made out by the evidence of the witnesses called to testify for RBC.

[118] Ms. Thompson was clear in her evidence that the claim would not be processed if Ms. Field had been driving her automobile of time of the accident while her driver’s licence was suspended in breach of her insurance policy. Ms. Field had to convince Ms. Thompson that the suspension indicated on the MVR was an error. It was because of her statements she made to RBC and the documents she provided to back them up that RBC relented and processed her claim. This result is made out by the evidence of Ms. Field herself, who admits that she received payments for her property loss claim and application for accident benefits.

[119] It is beyond dispute that Tasha Thompson processed the property loss claim made by Ms. Field because she accepted the statements made by Ms. Field that her driver’s licence had been suspended in error.

[120] I did not believe Ms. Field’s evidence that she paid those tickets on November 23, 2007 because she had been told that her rights to make a claim for property damage and for accident benefits would be reinstated once she had brought her driver’s licence into good standing. I prefer the evidence of Tasha Thompson over the evidence of Pamela Field on what statements were made about processing her claims upon having her driver’s licence reinstated for several reasons.

[121] First, neither Tanya Thompson (or Ms. Panchal) would have had authority to make a statement or promise to Ms. Field that RBC would process her claims for property loss and for accident benefits if she had her driver’s licence reinstated. The claim that a statement or promise was made to process those claims notwithstanding the fact that her driver’s licence was suspended on the date of loss is an argument to raise waiver or estoppel. The entitlement Ms. Field under the policy to make those claims was contractual in nature. She had no entitlement to make a claim for accident benefits by virtue of section 30 (1) of the SABS, and her right to indemnity for property loss was forfeited under Section 233 of the Insurance Act as a matter of law.

[122] Second, Ms. Field forfeited her right to make a claim for those benefits under section 233 of the Insurance Act when she told Ms. Thompson on November 21, 2007 that she had paid the fines for the tickets received in Lindsay and in London. Proof that this was clearly a false statement is borne out by the fact that Ms. Field had those fines paid two days later. By paying the fines on November 23, 2007, Ms. Field confirmed by her own conduct that she had not paid those fines in July 2007, contrary to the representations she had made to Ms. Thompson and to Ms. Panchal.

[123] The evidence of Tanya Thompson was clear that if a statement was made that RBC General Insurance would consider those claims after Ms. Field brought her driver’s licence into good standing, it was on the basis that Ms. Field had represented to RBC that her driver’s licence had been suspended in error in the first place. Although there was some suggestion by Ms. Field in her evidence that Ms. Panchal had made this statement to Ms. Field as well, Ms. Field did not call Ms. Panchal as a witness about the context in which this statement was made, if it was made at all.

[124] Third, the evidence of fabricated bank statements purporting to show that the fines under the tickets issued in Lindsay and in London had been paid only compounded the credibility gap between the evidence Ms. Field gave, and the evidence given by witnesses called for RBC.

[125] Ms. Panchal did not testify at trial. However, her file notes were introduced into evidence as business records. The file notes show that Ms. Panchal was also told by Ms. Field that her driver’s licence had been suspended in error. It was on this basis that Ms. Panchal advised Ms. Field that her application for accident benefits would be processed on reinstatement of her driver’s licence.

[126] I accept Ms. Panchal’s file notes for the truth of their contents. This evidence shows Ms. Panchal did not promise Ms. Field that her application for accident benefits would be allowed once her driver’s licence was reinstated even though it was suspended by MTO. I find that any statement made by Ms. Panchal to Ms. Field that her application for accident benefits would be processed once her driver’s licence was reinstated is based on the premise that the driver’s license had in actual fact been suspended in error. Ms. Field would have to convince the MTO reinstate her driver’s licence as though it had not been suspended on the date of loss.

[127] This evidence is confirmed by the reasons given by Ms. Panchal in Part 2 and Part 4 of the Explanation of Benefits Form (OCF-9) when Ms. Field was informed she was not eligible for the benefit or expense claimed. Those reasons on the OCF-9 read in part as follows:

“As per the information available on our file you did not have a valid licence on the date of the accident, therefore exclusions as per section 30 of the Statutory Accident Benefits Schedule (copy enclosed) would be applicable. You(r) have also informed us that the Ministry of Transportation (MTO) has made an error in suspending your licence & that you are in the process of obtaining the confirmation from the MTO. Please note that these exclusions would be applicable until such time as we receive the confirmation of your licence reinstatement…”

[128] The court heard evidence at trial that the MTO has never confirmed that Ms. Field’s driver’s licence had been suspended in error at any material time to this action.

[129] The court also heard evidence from Tasha Thompson and from Matthew Gibbons that RBC would not have approved the defendant’s claims for property damage, loss of use, income replacement benefits, housekeeping and home maintenance benefits and expense of visitors but for the false representations and the fraudulent conduct of Ms. Field to make those claims.

4. Loss caused to RBC

[130] The fourth and final element for civil fraud requires evidence that the plaintiff’s actions resulted in a loss. Ms. Field concedes that she received $250,000 under her claim for property damage and her accident benefits claim. RBC has given evidence that Ms. Field was not entitled to most of those payments because she was operating her motor vehicle on the date of the accident without a valid driver’s licence. Ms. Field was therefore not authorized at law to operate a motor vehicle at the time.

Defence of Imperfect Compliance

[131] Ms. Field raises the defence of imperfect compliance that should entitle her to relief of forfeiture under Section 129 of the Insurance Act in her submissions. Although Ms. Field did not plead this relief as an issue in her statement of defence, I will address it here as she raised it in her written submissions. Section 129 states as follows:

129. Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just. R.S.O. 1990, c. I.8, s. 129 .

[132] There are two basic answers to Ms. Field’s position that the act of driving her automobile on November 20, 2007 without a valid driver’s licence was only imperfect compliance with Section 4.(1) of the Statutory Accident Benefits Act. First, by raising imperfect compliance as a defence, Ms. Field is implying that she had a level of knowledge after all that her licence was properly suspended on November 20, 2007.

[133] The second is that relief from forfeiture under Section 129 of the Insurance Act provides no relief in the face of a fraud committed by the insured. Justice Cumming summarized the general principle that relief from forfeiture is not available under circumstances involving false statements or fraudulent conduct in Ghaffari v. Cooperators General Insurance Co., [1996] O.J. 2630 (Gen. Div.), affirmed , [1998] O.J. 4399 (Ont. C.A.):

As a consequence of any fraud or wilfully false statement in respect of a claim under the insurance contract, s. 233(1) (c) of the Insurance Act provides that the claim of the insured is invalid and the right of the insured to recover indemnity is forfeited: see Royal Insurance Co. of Canada v. Dimario (1987), 26 O.A.C. 370, [1988] I.L.R. 1-2260 (Div. Ct.).

Once fraud is established, no matter how slight the amount, the entire claim under the proof of loss is forfeited: Fotinos v. Pitts Insurance Co., [1981] I.L.R. 1-1377 at p. 264 (Ont. S.C.). This statutory provision appears to be predicated upon a public policy objective of seeking to deter fraudulent claims thereby ensuring premium costs are in line with true losses and risks. An insured is in control of the information submitted in a proof of a loss and, in many cases, the insurer cannot easily verify its accuracy. A contract of insurance is one of utmost good faith.

Section 129 of the Insurance Act allows for relief against forfeiture where there is "imperfect compliance with a statutory condition as to the proof of loss". This provision has no application in a situation of fraudulent conduct: West v. Royal Insurance Co. of Canada (1986), 21 C.C.L.I. 53 at p. 59 (Ont. Dist. Ct.); Wigmore v. Canadian Surety Co. (1994), 27 C.C.L.I. (2d) 96, [1995] I.L.R. 1-3139 (Sask. Q.B.). However, where the insured's proof of loss contains an honest mistake, the court can resort to s. 129 in order to grant relief on the basis that the insured's proof of loss amounted to "imperfect compliance".

[134] I therefore conclude that as I have found Ms. Field wilfully made false statements to the plaintiff and that she acted in a fraudulent manner to support those statements, relief from forfeiture is not available to her under Section 129 of the Insurance Act.

Damages for Accident Benefit and Property Claims

[135] After deducting the $21,201.32 for attendant care benefits, the claim RBC is making totals $229,672.70 for repayment of accident benefits that Ms. Field was not entitled to receive under section 30(1) . RBC is entitled to repayment of those benefits because they were obtained by fraud. In the alternative, RBC is entitled to recover those funds under section 47 of the SABS. Ms. Field may be compelled to pay those accident benefits that were wrongfully paid to her because section 47 requires a person to repay any benefit paid to that person as a result of an error on the part of an insurer, wilful misrepresentation or fraud.

[136] I conclude that RBC is entitled to recover those accident benefits wrongfully paid as a result of Ms. Field’s fraudulent conduct to recover damages for civil fraud for her wilful misrepresentations. In view of the fact that section 233 (2) states subsection (1), including the wilful making of a false statement by an insured in respect of a claim does not invalidate the payment of accident benefits under SABS, I conclude as an alternate basis for recovery that RBC is entitled to the repayment of those accident benefits that Ms. Field was not entitled to claim under section 30(1) under section 47 . In respect of applying section 47 as a remedy, I do not consider that Ms. Field is entitled to the provisions of subsection 47 (3) to receive notice or to repay the accident benefits in gradual increments under subsections 47 (2)(b) or (5) by extension. In my view, those provisions do not apply in this case by virtue of section 47 (4) because the benefits here were procured through Ms. Field’s wilful misrepresentation or fraud.

[137] As a result of my factual findings, Ms. Field has forfeited her right to recover indemnity for property loss under Section 233(1) of the Insurance Act. In Royal Insurance Co. of Canada v. Daniels, [1996] O.J. No. 3880 (Gen. Div.), Justice MacFarland found that the insurer was entitled to recover the amount it had paid for the loss of a car after it was determined the claimant had made a false statement on the proof of loss form. The court found that the claimant had therefore forfeited his right to indemnity for those losses under section 233 of the Insurance Act.

[138] Therefore, RBC shall have judgment against Pamela Field in the amount of $229,672.70 for the repayment of accident benefits, and the $10,115.86 she was paid for her property claims under the policy.

Damages for Accident Benefit Examinations

[139] RBC also seeks damages for the expense incurred to have health professionals examine and assess Ms. Field from time to time during her continuing claim for accident benefits. Expenses totalling $39,266.50 were tendered in the form of invoices by occupational therapists and various health professionals from February 1, 2008 to June 29, 2010.

[140] RBC takes the position that these expenses were incurred as a result of the false statements and fraudulent conduct of Ms. Field. Those expenses would not have been incurred and paid but for Ms. Field’s wrongful conduct. RBC therefore claims that the causal connection between Ms. Field’s liability and the actual expenses has been established.

[141] Ms. Field disputes liability for the payment of those expenses, as well as for the amount RBC seeks with respect to each invoice.

[142] RBC proved the amount of each invoice and the fact that those invoices were paid through the evidence of Matthew Gibbons. However, no witness was called to testify about the nature of each examination or assessment beyond marking each report as an exhibit and Mr Gibbons’ brief description of that report. No evidence was given about the time or other measurement of value for services rendered to arrive at the amount of each invoice.

[143] The court did not hear evidence that Ms. Field was ever directed to the fact that those expenses would be incurred to make those expenses foreseeable to her as possible damages. No evidence was given by any health provider or assessor on precisely what aspect of Ms. Field’s claims were the subject matter of any examination or assessment to satisfy the court as to the necessity of obtaining a given report, or the purpose for which it was required.

[144] The court has no way of knowing, for example, if one report or assessment was directed to whether Ms. Field required the attendant care benefit on a continuing basis. This kind of evidence would have been helpful for the court to determine if a report was prepared to support that claim which would not make the expense recoverable, or relevant to a housekeeping or home maintenance benefit, which would.

[145] I am not satisfied on the balance of probabilities that it was reasonably foreseeable for Ms. Field to know that RBC was incurring this expense or suffering this loss. In my view, RBC has not sufficiently proven that the report from a particular examination or assessment was required. Nor has RBC established the causal link between the false statements made by Ms. Field and the expense incurred by RBC to have these reports written. Neither party provided the court with any legal authority to claim or refute the amount paid for these invoices as damages.

[146] I therefore disallow RBC’s recovery of the amounts paid for those invoices as it has not discharged its burden as the plaintiff to prove its damages.

Claim for Punitive Damages

[147] Under the principles set out by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, I find that RBC’s claim for punitive damages is made out. In Whiten, the court articulated that punitive damages can only be awarded for an actionable wrong that is independent from the cause of action that makes up the main part of the claim. The court also held that even if an independent wrong is proven that can support a claim for punitive damages, the quantum of those damages must be proportionate to the harm done.

[148] The Supreme Court of Canada stated in Bhasin v. Hrynew, 2014 SCC 71 that the performance of contracts is now governed by the organizing principle of good faith. Good faith means that parties must perform their contractual obligations honestly and reasonably, and not capriciously or arbitrarily.

[149] In reaching this conclusion, the court in Bhasin reviewed the authorities that already recognize a duty of good faith expected in contractual dealings between parties with specific relationships. The contractual relationship between an insurer and an insured is one example where the court has found there to be a reciprocal duty to act in good faith with respect to obligations under an insurance policy. The court put it this way at paragraph 55:

[55] This Court has also affirmed the duty of good faith which requires an insurer to deal with its insured’s claim fairly, both with respect to the manner in which it investigates and assesses the claim and to the decision whether or not to pay it: Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, at para. 63, citing 702535 Ontario Inc. v. Lloyd’s London, Non-Marine Underwriters (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), at para. 29. The breach of this duty may support an award of punitive damages: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595. This duty of good faith is also reciprocal: the insurer must not act in bad faith when dealing with a claim, which is typically made by someone in a vulnerable situation, and the insured must act in good faith by disclosing facts material to the insurance policy (para. 83, citing Andrusiw v. Aetna Life Insurance Co. of Canada (2001), 289 A.R. 1 (Q.B.), at paras. 84-85, per Murray J.).

[150] I conclude as a matter of law that there is a doctrine of mutuality that imposes a duty on an insurer and an insured party to act in good faith when dealing with each other in the making or processing of a claim under a policy of insurance. This mutuality arises from the reciprocal duty of an insured to act fairly, honestly and in good faith when making a claim, and of an insurer to act fairly, honestly and in good faith when adjusting that claim.

[151] Ms. Field did not make her claim for property loss or accident benefits under her policy of insurance with RBC fairly, honestly or in good faith. She breached the duty of good faith she owes at law to RBC as her insurer by making false statements and providing fabricated documents. This is an independent wrong, distinct from her breach of section 4.(1) of the SABS and her insurance policy. RBC as the aggrieved plaintiff has therefore established a sufficient basis to claim punitive damages.

[152] Under all of the circumstances, and in view of the deterrent effect Whiten directs that an award for punitive damages should reflect, I set those damages at $24,000. This amount represents ten percent of the total paid to Ms. Field for accident benefits and for the property damage claim she received under her policy from RBC. I consider that amount to be proportionate to the other damages claims, and a just award for punitive damages.

CONCLUSION

[153] RBC General Insurance Company is granted judgment in the amount of $239,788.56 to recover payments made for property loss and for accident benefits, and $24,000 in punitive damages against the defendant Pamela Field.

[154] RBC is also granted pre-judgment interest pursuant to section 128 of the Courts of Justice Act on the amounts wrongfully paid to Ms. Field under her policy since December 9, 2010. It was on that date Ms. Field settled all claims for accident benefits with RBC, and it was from that date she had the benefit of those funds.

[155] I would ask RBC to approach Ms. Field to resolve the issue of costs on a consent basis. If no agreement can be reached, RBC shall have until October 14, 2016 to provide written submissions on any costs claimed. Ms. Field shall then have until October 28, 2016 to file written submissions in response. No reply submissions may be filed without leave. All written submissions shall consist of no more than four pages, not including a bill of costs, and may be filed by fax to my judicial assistant, Priscilla Gutierres, at 905-456-4834 in Brampton.

Justice M.G. Emery Released: September 29, 2016