Category: Material Misrepresentation

B.F. v. Certas Direct Insurance Company (19-004944)

The claimant applied to Certas for accident benefits. Certas brought an application to the LAT arguing that the claimant was not involved in an “accident” and sought repayment of accident benefits because the claimant wilfully misrepresented facts in relation to her application for benefits. Adjudicator Maleki-Yazdi agreed that the claimant was not involved in an accident. Adjudicator Maleki-Yazdi considered the claimant’s EUO evidence as well as the evidence of Certas’ investigator. Adjudicator Maleki-Yazdi found there were several inconsistencies with the claimant’s reporting and that the claimant could not describe basic facts regarding the collision at both her EUO and at the hearing. Because Adjudicator Maleki-Yazdi found there was no accident, Adjudicator Maleki-Yazdi also found that the claimant had wilfully misrepresented material facts about her claim for benefits and that the claimant had to repay Certas accident benefits pursuant to section 53.

G.S. v. The Personal Insurance Company (19-001049)

The claimant sought various accident benefits. The insurer argued that the claimant was not involved in an accident, and alleged that he had made material misrepresentations. The insurer sought repayment of all accident benefits paid. Regarding the burden of proof, Adjudicator Hines held that the claimant had to prove that he was involved in an accident, but that the insurer was responsible for proving a material misrepresentation in order to be entitled to repayment. Adjudicator Hines accepted that the claimant was not involved in the alleged accident, as he was not a passenger in the vehicle he had claimed to be. The claimant did not call any witnesses to support that he was in the vehicle at the time. The claimant’s EUO evidence was inconsistent with the evidence of two other involved parties. Further, the claimant did not mention the accident at various medical appoints after the date of loss. Adjudicator Hines ordered the claimant to repay all accident benefits (medical benefits and NEBs), but he was not required to pay for IE costs incurred by the insurer.

Motor Vehicle Accident Claims Fund v. Z.M.H. (18-011392)

The Fund sought repayment of accident benefits on the basis that the claimant was not involved in an accident, and that she had misrepresented the facts of loss. The claimant alleged that she was part-way in her son’s vehicle when he started driving, causing her to fall out of the vehicle onto her knees. The Fund alleged that the claimant suffered a slip and fall incident while walking in an underground parking lot, a few yards away from her son’s vehicle. Adjudicator Hines accepted the claimant’s version of events that she fell while getting into the vehicle as a result of her son starting to move the vehicle. Both the purpose and causation test were satisfied, and the incident fell within the definition of “accident” for the purpose of the SABS. The claim for repayment was dismissed.

N.C. v. TD Insurance Meloche Monnex (18-003656)

The claimant sought a determination that he suffered a catastrophic impairment due to a Class 4 marked impairment or 55 percent WPI, ACBs, HK expenses, and various medical benefits. The insurer sought repayment of IRBs. Adjudicator Neilson concluded that the claimant did not suffer a catastrophic impairment. She first noted that the claimant would only be assessed on his current state – not potential future surgeries or deterioration that may occur. She also ruled out any WPI for hip issues, because the claimant could not prove that his hip impairments were causally related to the accident. In terms of psychological impairment, Adjudicator Neilson held that the claimant suffered Class 2 impairments in all spheres of function (the claimant’s occasional deterioration did not support a Class 4 impairment, which required the impairment to be stable or ongoing), which was equivalent to a 15 to 20 percent WPI. The total WPI was 36 percent. The insurer’s request for IRB repayment was dismissed because the insurer could not prove that payment of earlier IRBs was made as a result of material misrepresentation or fraud. Misreporting on his income tax returns was due to a T4 not being given to him by his employer.

Wawanesa Mutual Insurance Company v. S.P. (19-000982)

The insurer sought repayment of income replacement benefits that were paid as a result of misrepresentation. Adjudicator Manigat found that the claimant made a wilful misrepresentation of her employment status, the insurer had given proper notice under s. 53 of the SABS, and the insurer was entitled to repayment of IRBs plus interest. The claimant alleged that she was employed at the time of the accident. The evidence submitted by the insurer demonstrated that the claimant had not been employed.

Motor Vehicle Accident Claims Fund v. I.G. (18-000798)

The Fund sought repayment of IRBs and medical benefits, arguing that the claimant was not employed at the time of the accident and was not involved in a motor vehicle accident as claimed. Adjudicator Makhamra accepted that the claimant had committed a wilful misrepresentation. A few years after initially making the accident benefits claim, the claimant had been involved as a witness in the criminal trial of other individuals allegedly involved in the accident. Justice MacDonnell found that the claimant was not struck by a motor vehicle, as alleged. It was also found that the claimant had committed perjury and obstruction of justice. Adjudicator Makhamra accepted the findings from the Court, as well as an earlier FSCO arbitration regarding entitlement to IRBs, and ordered that the claimant repay all accident benefits paid to him.

M.F. v. The Personal Insurance Company (18-007929)

The insurer alleged that the claimant was not a passenger in the vehicle when the accident occurred and sought repayment of medical benefits paid on her behalf. Vice Chair Flude concluded that the insurer had the burden to prove that the claimant had made a wilful misrepresentation, and that the insurer failed to meet its burden. While the claimant’s evidence was extremely vague, there was medical evidence that the claimant had suffered from significant cognitive dysfunction for many years and was quite forgetful with decreased attention and concentration. Furthermore, an email from the attending police officer confirmed that he recalled the claimant being at the scene of the accident but had not written her name because she did not appear injured. The request for repayment was dismissed.

F.C. v. Intact Insurance Company (18-005079)

The claimant had applied to the Tribunal for accident benefits, and commenced an action for property damage in the Superior Court. The insurer alleged that the claimant had committed material misrepresentations, and sought a stay of the LAT proceedings until the Superior Court decision was rendered or a preliminary hearing addressing the material misrepresentations. The Tribunal rejected both requests; the insurer sought reconsideration. Adjudicator Lester held that the Tribunal did not act outside its jurisdiction or violate the rules of natural justice or procedural fairness, and noted that the claimant would be prejudiced by a stay of the LAT application.

Certas Direct Insurance Company v. T.T. (17-000272)

The insurer sought repayment of income replacement benefits, asserting the claimant failed to disclose post-accident income. The claimant did not participate in the hearing. Adjudicator Sandeep Johal determined that the claimant was indeed employed during the payment period, and that the insurer had given adequate and timely notice regarding repayment. Furthermore, the claimant committed a willful misrepresentation when he informed his IE assessors that he did not return to work. Accordingly, the insurer’s claim for repayment was allowed with interest.

M.D. v. Intact Insurance Company (17-000532)

The insurer defended the claim on the basis that the accident was staged and that no accident benefits were payable. Adjudicator Neilson accepted the insurer’s position. She first rejected FSCO case law that held that a staged accident still qualified for accident benefits. She noted that section 118 of the Insurance Act states that a person shall not profit from a person’s intentional or criminal act, and that the term “accident” in the SABS must be interpreted in light of that provision. She held that allowing a person to claim accident benefits for a staged accident would contravene the public policy contained in section 118. Next, the adjudicator concluded that the claimant was involved in the staging of the accident. Her conclusion was based on significant discrepancies in the statements given by the claimant and other individual involved in the incident; a reconstruction report showing that the collision could not have occurred as reported; and the claimant’s failure to call evidence from the other individuals allegedly involved in the accident. Finally, the adjudicator stated that the claimant’s misrepresentation of the facts of loss to the insurer were made wilfully and were material to the claim. She concluded that the claimant was not involved in an “accident” as defined in the SABS, and that the insurer could terminate benefits in accordance with section 53.