A claimant who lied to TD Insurance about an acquaintance being present with her in a car crash so that her acquaintance could collect accident benefits does not have to repay her own benefits because of the misrepresentation, Ontario’s License Appeal Tribunal has ruled.
That’s because Destiny Homanchuk, a claimant involved in the crash, did not collect her own benefits on the basis of her misrepresentation, according to LAT Vice President Jeffrey Shapiro, in a decision released Friday.
“In general terms, [the Statutory Accident Benefits Schedule] provide[s] that the misrepresentation must relate to the benefits to be repaid,” Shapiro wrote. “In the words of s. 52, ‘…a person is liable to repay the insurer…any benefit…that is paid to the person…as a result of wilful misrepresentation or fraud.’
“TD has not led evidence that [Homanchuk] received her own benefits ‘as a result of’ her misrepresentations – rather [Maxine] Dawkins may have benefited. Thus, the s. 52 and s. 53 provisions [of the SABS] would apply to Dawkin’s benefits. But as for [Homanchuk], she was in the accident and appears to have received the appropriate benefits.”
Homanchuk was a passenger in a vehicle driven by Akeem Pope in December 2018, when they were involved in an automobile accident. She sought and received accident benefits from her insurer, TD Insurance. TD alleged Homanchuk, Pope and Dawkins all misrepresented that Dawkins was also in the vehicle, although she was not.
Pope and Dawkins also received benefits from TD and are the subject of related repayment applications before the Tribunal.
TD argued that since Homanchuk misrepresented Dawkins was in the car during the crash, then Homanchuk should have to repay her own benefits on the basis of the misrepresentation.
The LAT agreed Homanchuk misrepresented many aspects of the claim to her auto insurer, including that Dawkins was in the car when she wasn’t. For example, Homanchuk, Pope and Dawkins all provided different accounts of where they were going:
Dawkins testified the three were grocery shopping and picking up West Indian takeout food at Tropical Joe’s in the Albion Mall.
Pope said the trip was only for takeout, at a different restaurant near “Woodbine tracks.”
Homanchuk said they were going for takeout at “mall somewhere in Rexdale,” at a Caribbean restaurant, whose name she could not recall.
TD essentially argued the totality of the claim was based on a misrepresentation, and therefore all three should have to repay their benefits.
“The thrust of TD’s argument is that caselaw establishes that material misrepresentations go to the totality of the ‘claim’ – with the claim being all claims from the accident,” Shapiro writes in the LAT ruling. “I disagree as s. 52 [of the SABS] does not read that if A or B are truthful about their own claim, but misrepresent facts that help C obtain benefits, then A and B are disentitled to all benefits – which is what TD is arguing in this case.
“Again, s. 52 and 53 includes the words, ‘as a result of.’ TD has not established the ‘as a result of.’ In other words, [Homanchuk] did not receive her benefits as a result of a wilful misrepresentation or fraud.”