Category: Material Misrepresentation

Sonnet Insurance Company v. Crooks (20-011866)

The insurer applied to the LAT, arguing that the claimant was not involved in an accident, and sought repayment of benefits. Adjudicator Grant found that the incident was staged, relying upon the claimant’s own evidence at his EUO. He also found an engineering reconstruction report supported the same conclusion. The claimant’s reporting of the accident was a wilful material misrepresentation, and he was liable to repay accident benefits he received. Adjudicator Grant awarded repayment of the benefits paid to the claimant, but denied repayment of amounts paid for investigation fees, EUO fees, surveillance fees, transportation fees, or the cost of obtaining records.

Intact Insurance Company v. Hashemi (20-011873)

The insurer applied to the LAT seeking repayment of benefits after concluding that the claimant was involved in a staged accident. The insurer sought repayment of accident benefits, examination costs, and other expenses (including EUO expenses and engineering expert expenses). Adjudicator Kepman accepted that the claimant made wilful material misrepresentations regarding the accident. However, only the amount of benefits paid was repayable by the claimant. The insurer could not claim repayment for IE expenses, EUO expenses, expert expenses, or legal fees. The insurer also sought a special award against the claimant. Adjudicator Kepman found that a special award could not be given against a claimant, even in such circumstances.

Katsiashvili v. Economical Mutual Insurance (21-015596)

The insurer argued that the claimant was not involved in a legitimate accident, pointing to inconsistencies is the material facts leading up to the accident, the description of the accident, and the injuries sustained. Adjudicator Kaur rejected the insurer’s position, holding that the inconsistencies were minor, or were immaterial, or were not in fact inconsistencies when considered as a whole. The insurer also argued that the claimant’s five month delay in applying for benefits barred the claim. Adjudicator Kaur dismissed the insurer’s arguments as the insurer refused to produce its log notes detailing the interactions with the claimant. The claimant argued that the insurer refused to provide the necessary forms; the insurer did not produce evidence to the contrary.

Sambasivam v. Sonnet Insurance Company (20-014115)

The insurer brought a preliminary issue motion with the LAT to determine whether the accident alleged by the claimant had occurred. It sought a repayment of IRBs paid and costs for investigation and legal fees. The claimant alleged that he had been a passenger in a vehicle driven by the witness, his sister, when they were rear ended by an SUV. He claimed that their vehicle was pushed off the roadway by the impact into a post. The claimant stated that the SUV fled and that he and his sister called a tow truck to the scene. However, the claimant was unable to recall the object that the vehicle struck, the damage to the vehicle, and whether the airbags deployed. There was no external evidence to establish that he was present when the alleged accident occurred, aside from the accident report which was filed four days later. The claimant’s witness stated at the hearing that the vehicle had struck a tree. However, in the accident report she had claimed that the vehicle hit a post. The insurer hired an expert to conduct a forensic investigation of the matter. The expert noted that the rear of the vehicle had a series of scratches made by a sharp object that were separate and distinct, with no damage being found on the bumper or from one metre above the ground and below. He also found that the damage to the front of the vehicle was consistent with underriding because it widened as it developed into the hood area. Based on the evidence before him, Adjudicator Flude held that the claimant had misrepresented the material facts of the alleged accident. He ordered that the he repay $10,857.14 in IRBs with interest from April 16, 2021. However, he did not find that the insurer was entitled to costs related to the claim as the remedy was not found in the SABS. The claimant’s AB claim was dismissed.

Singh v. Certas Direct Insurance Company (20-011141)

The claimant alleged that he was the back-seat passenger in a car involved in a rear-end accident. The insurer believed the incident was staged, based on an accident reconstruction report. Adjudicator Neilson held that the claimant failed to prove that he was involved in an accident. Relying on the accident reconstruction report and the “black box” data, Adjudicator Neilson found that the damage to the involved vehicles did not match the reported data. Additionally, the claimant’s reporting regarding the facts of loss was not supported by the “black box” data, or the damage to the vehicles. Furthermore, the claimant’s medical records did not support the injuries alleged by the claimant. Adjudicator Neilson wrote that staging an accident did not meet the purpose or causation test, and the claimant was therefore not entitled to accident benefits. The claimant was also found to have made material misrepresentations with respect to material facts. The claimant was ordered to repay $1,442 in medical benefits paid to a clinic as a result of the material misrepresentation.

Aviva General Insurance Company v. Sayegh (20-013245)

The claim arose after the insurer denied further benefits and sought repayment on the basis of wilful misrepresentation under section 52(1) of the SABS. The insurer based its decision on the investigation of an accident reconstruction expert, William Jennings. At the LAT, the claimant testified that he had been a front-seat passenger of his friend’s Toyota when it rear ended a Chevrolet vehicle. His testimony was consistent with the self-collision reports for both vehicles and his reports in two section 44 IEs. However, upon cross-examination, the claimant testified that he had not been in the passenger-seat but was holding the seat belt in his hand while sitting on the console next to the driver when the accident occurred. In his investigation, Mr. Jennings examined the seat belt restraint system, photographs of the damage, and the Event Data Recorders of both vehicles. He testified that based on the data retrieved, the Chevrolet was vacant and the Toyota had no passengers at the time of the collision. Mr. Jennings found that the frontal passenger airbag in the Toyota had not deployed. He testified that had the claimant been in the passenger seat, the airbag would have deployed on impact. The data from the Toyota showed that the vehicle had rapidly accelerated from a speed of 4 km/h to 39 km/h before hitting the Chevrolet. Mr. Jennings stated that the only plausible explanation for the accident was that the Chevrolet was stopped and unoccupied when it was intentionally struck by the Toyota. The claimant did not produce the drivers of either vehicles as witnesses or otherwise provide evidence to refute Mr. Jennings’ findings. Adjudicator Reilly accepted the insurer’s evidence and found that its notices of request for repayment were satisfactory. She awarded a repayment of benefits, as well as interest on the outstanding balance starting from the date of the notice letter.

Pope v. TD General Insurance Company (21-000593)

The insurer denied benefits and claimed repayment alleging that the claimant had made wilful misrepresentations. The insurer stated that the claimant, who was the driver in the subject accident, had misrepresented that a second claimant (“Dawkins”) had been a passenger in his vehicle when the collision incurred. The claimant did not attend the hearing. Adjudicator Shapiro first found that the Tribunal could proceed in the claimant’s absence as adequate notice had been provided. Turning to the evidence, he found that Dawkins had not been in the vehicle and that the claimant had made a wilful misrepresentation for several reasons. First, the Motor Vehicle Collision Report referenced that the claimant and three other passengers had been in the vehicle, but did not mention Dawkins. Second, another driver involved in the collision provided a written statement and specifically noted that the front passenger seat had been empty. Finally, the accounts given by the claimant, Dawkins, and a passenger in the claimant’s vehicle contradicted one another. However, Adjudicator Shapiro held that the claimant’s misrepresentations did not terminate his benefits or trigger repayment under sections 53 and 52, as the claimant had not received his benefits as a result of the misrepresentation.

Sonnet Insurance Company v. Mitchell (20-006073)

The insurer alleged that the claimant made material misrepresentations about her involvement in an accident. On receipt of the medical records and after an EUO, the insurer determined the claimant was not involved in a motor vehicle accident, but had sustained injuries as a result of a fall down a flight of concrete stairs while intoxicated. The claimant also failed to attend scheduled Case Conferences and did not respond to correspondence of either the insurer or the Tribunal. In addition, she did not file submissions for the written hearing. The insurer had paid the medical benefits on a good faith basis given the information reported on the claimant’s OCF-1 and OCF-3. It was not until the insurer received the hospital records that it realized the claimant’s injuries were as a result of a drunken fall. An EUO was then scheduled. At the EUO, the claimant testified she was in a motor vehicle accident but did not know what happened to the driver the vehicle she was in or the driver of the other vehicle and both drivers had fled the scene. The claimant made no attempts to locate either of the drivers. Adjudicator Boyce found the claimant provided no evidence that the insurer’s assertion of material misrepresentation by the claimant was inaccurate or that the claimant’s impairments were caused by a motor vehicle accident. The repayment request letter from the insurer met all the requirements for repayment of the claim. Adjudicator Boyce ordered the claimant to repay medical benefits and IRBs paid by the insurer. The insurer was also entitled to payment of interest.

Subaskaran v. RSA Insurance (20-000368)

The insurer sought repayment for IRBs in the amount of $9,028 on the basis that the claimant returned to work and materially misrepresented his return to work status. Adjudicator Farlam found in favour of the insurer. The claimant admitted on cross-examination during the hearing that he worked as a taxi driver during the time in question. He also identified himself in surveillance from that time driving a taxi. The claimant also admitted that he did not tell the truth to the IE doctor about his work status. Adjudicator Farlam noted that silence was wilful misrepresentation as the claimant did not tell his family doctor, legal representative, or the IE doctor that he had returned to work. As such, Adjudicator Farlam found that the claimant was liable to repay the insurer the full amount of IRBs claimed.

Switzer v. Waterloo Insurance (19-011403)

The claimant disputed his entitlement to attendant care benefits, housekeeping expenses, and two chair lifts. He also disputed the weekly quantum of IRBs he was entitled to receive. The claimant also sought a special award. The insurer argued that the accident was not the cause of the claimant’s impairments, and that they all pre-existed the accident from six earlier motor vehicle accidents. The insurer also argued that the claimant made material misrepresentations in relation to his claim for housekeeping expenses. Adjudicator Lake found that the accident was a necessary cause that exacerbated the claimant’s pre-existing psychological and cognitive conditions, but did not cause the claimant any new physical impairments or exacerbate his previous physical conditions. Adjudicator Lake declined to award ACBs because the claimant failed to prove that any expenses were incurred. The claimant failed to call his alleged service provider to give evidence and could not prove that the service provider was a professional acting in the course of his employment or self-employment. Adjudicator Lake also wrote that she would have declined to award ACBs due to the claimant’s failure to prove the service actually provided to him. There were no time dockets, daily logs, job diaries, or any information about the dates and times services were performed. Regarding HK expenses, Adjudicator Lake held that the claimant failed to prove that he suffered a substantial inability to complete his home maintenance and housekeeping tasks as a result of the accident. Regarding IRBs, Adjudicator Lake held that the claimant was entitled to $711.15 per week in IRBs during 2018 and $1,000 per week from January 2019 onwards. The claimant was self-employed as a lawyer at the time of the accident, and was a partner at a law firm prior to that. The last full fiscal year worked by the claimant at the law firm was 2016. The claimant did not complete a fiscal year at either his own law firm or as a partner at a law firm in 2017. Adjudicator Lake rejected the insurer’s position that consideration of self-employment income was restricted to a business being operated at the time of the accident. The claimant continued to practice law after the accident, so the insurer was entitled to deduct post-accident earnings in accordance with the SABS. No evidence was provided of the claimant’s income from 2019 onwards. Adjudicator Lake declined to grant a special award, as the only benefit found payable was IRBs, and the interpretation of the SABS that led to the dispute was not excessive, imprudent, or stubborn. Finally, Adjudicator Lake rejected the insurer’s position that the claimant made material misrepresentations in relation to the claim for HK expenses. She agreed that the housekeeper’s testimony called into question evidence given by the claimant regarding creation of invoices, the discrepancy was not a “material fact” with respect to the application for HK expenses; the discrepancy related to the author of the invoices rather than the content.