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.

Aflo v. Aviva General Insurance Company (20-001404)

The claimant applied to the LAT because its insurer sought to deduct EI sickness benefits from her IRBs as “gross employment income”. Vice Chair Johal found that EI sickness benefits were not deductible from an IRB. Vice Chair Johal rejected the insurer’s argument that the EI sickness benefits were being received as a result of the claimant being employed after the accident. Rather, it was held that the claimant was receiving the EI sickness benefits based on her employment before the accident. Vice Chair Johal also found that, even if the EI benefits had been deductible, the insurer would not be entitled to an IRB repayment because its notice seeking a repayment was deficient. The notice was incorrect in that it sought a repayment amount in excess of what should have been requested. Moreover, it did not provide a clear explanation of how the overpayment had been calculated. Given that insurers are able to unilaterally deduct benefits through an IRB repayment notice, Vice Chair Johal stated that notices needed to be accurate in order to prevent prejudice to claimants.

Aviva Insurance Company of Canda v. Saunders (20-009069)

The insurer sought repayment of IRBs due to the claimant’s return to work, which he failed to report for six months. The claimant and the insurer initial agreed to a repayment plan of $200 per month, but the claimant ceased payment eventually. The insurer sent a new repayment request for the remaining overpayment. Adjudicator Boyce agreed that the claimant committed a wilful misrepresentation due to his failure to report his return to work, and that the insurer was entitled to repayment of the remaining overpayment. He also found the insurer entitled to interest on the repayment request from the date of the LAT application.

Ibrahim v. Economical Mutual Insurance Company (20-007384)

The claimant applied to the LAT seeking removal from the MIG, entitlement to chiropractic services, lost educational expenses, and a special award. The insurer sought repayment of $2,800 in IRBs for a period of time the claimant had returned to work and not notified the insurer. Adjudicator Hans concluded that the claimant had chronic pain syndrome, which removed him from the MIG, and entitlement to the chiropractic services. The claim for lost educational expenses was denied. The claimant was required to prove that at the time of the accident he was enrolled in elementary, secondary, post-secondary, or continuing education; and that as a result of the accident, he was unable to continue to the program. The claimant satisfied Adjudicator Hans that he was enrolled in an automotive technological diploma program, but Adjudicator Hans was not convinced that the claimant’s injuries prevented him from continuing in the program. The evidence showed that the claimant attended the day after the accident, and the various days he missed were for reasons other than accident-related injuries. Though the claimant stopped attending the program four months after the accident, there was no evidence proving why the claimant stopped attending. Further, the Disability Certificate stated that the claimant was not disabled from continuing with an educational program. The claim for a special award was dismissed. Adjudicator Hans granted the insurer’s request for repayment of $2,800 in IRBs. The claimant returned to work in November 2017, but only notified the insurer in January 2018. The insurer’s request for repayment was made within 12 months, stated the specific amount of the request, and referred to the correct sections of the SABS.

Aviva General Insurance v. Simmonds (19-010035)

The insurer sought repayment of IRBs in the amount of $12,731.87 for the period from July 10, 2017 to April 26, 2019 plus interest and costs. At the time of the accident, the claimant was employed at a shoe store and at a jewellery store. The insurer spoke with the jewellery store on September 26, 2017 and was advised that the claimant had returned to work on September 12, 2017. Almost four months later, the insurer received an OCF-2 from the jewellery store employer that the claimant had returned to work on August 4, 2017. The insurer had no information regarding whether the claimant had returned to work at the shoe store. The insurer continued to pay IRBs. The claimant eventually participated in an IE to determine ongoing IRB entitlement, and it was disclosed in the report of May 8, 2019 that the claimant was working at a new place of employment, which she had not reported to the insurer. The insurer had contacted the claimant on April 24, 2019 prior to receiving the IE report to discuss stale-dated cheques and reschedule an IE. The insurer sent a letter to the claimant on July 15, 2019 asking for the date of return to work and seeking repayment of IRBs of $3,108.48. The insurer did not receive a response. A LAT Application was then filed by the insurer on September 11, 2019. The claimant produced paystubs during a Case Conference, which indicated that she had been working for a new employer since 2017. In response to the new information, the insurer requested repayment of all IRBs on the basis of material misrepresentation. The claimant argued that the insurer should have or ought to have known she had returned to work because she advised her treatment provider, whom she expected to provide this information to the insurer. Adjudicator Norris found no evidence that the claimant advised a treatment provider of her return to work, and no clinical notes and records were produced to support the claimant’s position. Regarding the notice of repayment, the claimant argued that the insurer did not notify her within the 12 month requisite period of the overpayment and, in the alternative, argued that the insurer was statute barred from claiming repayment for failure to file its LAT Application within two years of the overpayment. Adjudicator Norris found the insurer had complied with s. 52 of the SABS. The insurer was only required to give the claimant notice of the amount it required her to repay. The limitation period in s. 52 did not apply to this case scenario as the claimant had wilfully misrepresented her return to work date. Adjudicator Norris ordered the claimant repay the IRB overpayment amount including interest and costs at $100. Adjudicator Norris concluded the insurer had proven the claimant had willfully misrepresented her employment status. The claimant had failed to produce a Record of Employment, which would have clarified the claimant’s period of absence and losses. Adjudicator Norris found an adverse inference in the claimant’s failure to provide a reason for not producing the records.

Unica Insurance Inc. v. Jeyabalasingam (19-013236)

The insurer sought repayment of three months of IRBs after determining overpayment had been made due to the claimant’s return to work. A request for overpayment dated April 10, 2019 was made by the insurer to the claimant and her legal representative by regular mail. The claimant took the position that the request for repayment was statute-barred since notice was not provided within the 12 months of the first disputed payment. The claimant also argued that the SABS did not allow for service on a legal rep by regular mail, and that repayment request letter was not sufficiently detailed because it did not specify the period for repayment and it did not provide calculations supporting the requested overpayment amount. However, the amount of overpayment was not challenged by the claimant. Adjudicator Mazerolle concluded the claimant received proper notice of the repayment request, and the claimant was ordered to repay IRBs in the amount of $4,800. Adjudicator Mazerolle agreed that the insurer’s letter could have been clearer regarding the payment period, but the letter was sufficient in notifying the claimant of the relevant timeline, indicating when the claimant resumed her pre-accident duties on September 21, 2018 and that IRBs would be discontinued effective December 15, 2018. Adjudicator Mazorelle was satisfied that the legal representative had received notice of the overpayment in accordance with s. 64(18). Adjudicator Mazorelle further found the notice letter contained all necessary requirements when reviewed as a whole. He noted that case law did not require calculations be included in the repayment request.

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.

Parker v. Aviva Gen. Ins. Co (19-010703)

The claim arose out of a dispute as to the appropriate quantum for IRBs. Prior to the accident, the claimant held both a full-time and a part-time employment position. She submitted two OCF-2s. The parties disagreed as to the appropriate calculation for the part-time income. The insurer calculated IRBs using the claimant’s income for the four weeks prior to the accident. The claimant argued that this was inappropriate and that she should be able to designate whichever period (4 weeks or 52 weeks) for the part-time employment that resulted in the higher overall IRB, even if alternative period was used for the full-time employment. Vice-Chair Boyce disagreed with the claimant, noting that there is no mechanism that allows a person to mix-and-match the time period designations. The SABS requires that remuneration be lumped together, regardless of whether it stems from a single employer. Therefore, on a plain reading of the IRB definitions section, all of the claimant’s income should be combined, and then the claimant had the opportunity to select the calculation (4 weeks or 52 weeks) that is most beneficial to her circumstances. A mix-and-match approach would have the effect of creating an arbitrary distinction between individuals who make the same income but have numerous employers. The claimant’s second argument was that the deduction of CPP benefits constituted a repayment under section 52 of the SABS and the insurer failed to provide the proper notice required. Vice-Chair Boyce again disagreed with the claimant’s interpretation, noting that the insurer’s notice was clear that it was only deducting CPP on a go-forward basis. There was no request for repayment of past IRBs, so no notice was required under section 52.