Category: Repayment

Ravilotchanan v. Allstate Insurance Company of Canada (2024 ONSC 1629)

The claimant appealed the Tribunal’s decision that she was responsible for repayment of $23,600 in IRBs and $5,970.92 in ACBs. The Tribunal ordered the repayment based on the claimant working as a PSW at the same time she was receiving benefits. The disclosure of the information was made after the claimant had received a substantial amount of IRBs and ACBs. The Court dismissed the appeal, holding that the Tribunal did not make any legal error, and the claimant failed to identify any extricable legal error. The factual findings made by the Tribunal were supported by the evidence and were determinative of the claim.

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.

Del Grosso v. Intact Insurance Company (20-013318)

The claimant was involved in an accident in Michigan and elected to receive Michigan no-fault benefits, including Work Loss Benefits (the Michigan equivalent of IRBs). The insurer later learned that the claimant misrepresented his driving history and insurance history when applying for his auto policy. The insurer terminated the claimant’s entitlement to Work Loss Benefits and requested repayment of over $72,000 based on the section 31(1)(b) exclusion. The claimant argued that Michigan benefits were not equivalent to IRBs, and were not excluded and argued that the Tribunal did not have jurisdiction to consider his entitlement to Michigan no-fault benefits. Adjudicator Norris found that he had jurisdiction to consider the matter as the Michigan level benefits were being paid under the SABS. He agreed with the insurer’s position, concluding that the claimant made material misrepresentations in his application for insurance (failing to report an earlier accident and termination of an auto policy), that section 31 (1)(b) barred entitlement to IRBs, and that Work Loss Benefits were equivalent to IRBs. Adjudicator Norris ordered the claimant to repay all Work Loss Benefits received.

Dominion of Canada General Insurance Company (Travelers) v Mohamed (20-004572)

The insurer applied to the LAT seeking repayment of IRBs. The claimant did not participate in the hearing. Adjudicator Shapiro found that the claimant failed to advise the insurer that she started a new employment position shortly after the accident and that she received IRBs during the period of post-accident employment. Adjudicator Shapiro found that the overpayment of IRBs was made as a result of wilful misrepresentation, so the 12-month limitation on the request for repayment was not applicable, and the insurer was entitled to a repayment of IRBs plus interest.

Hilaire v. Sonnet Insurance Company (20-006329)

The claimant filed a LAT Application disputing five OCF-18s for physiotherapy services, the MIG and entitlement to NEBs. The insurer requested repayment of NEBs in the amount of $6,105.00 under s. 52 of the SABS on the basis that the benefit was paid in error. The insurer argued that it erroneously paid the claimant NEBs between May 19, 2019 and January 5, 2020, and had properly requested repayment in the amount of $6,105.00, in addition to interest owing. The claimant had returned to work full-time a few days following the accident. On July 24, 2018, the insurer received an OCF-3 and requested that the claimant complete an OCF-10. On September 5, 2018, the claimant submitted a second OCF-3 supporting IRBs, but not NEBs. No OCF-10 was submitted as requested. On July 28, 2019, the claimant submitted an OCF-10 electing NEBs. In response, the insurer paid NEBs in the amount of $13,468.00. Upon review of the file, the insurer realized that the claimant was not entitlement to an NEB and requested repayment in the amount of $6,105.00, representing the amount that was paid in error over the previous 12 months. The insurer also requested an explanation in writing for the extensive delay in submitting the OCF-10. Adjudicator Corapi noted that the insurer had provided proper notice for repayment for the period stated, and had continued to follow-up with the claimant for further explanation and documentation to adjust the error, but received no response from the claimant. As the insurer’s letters and action were in compliance with s. 52, and the evidence showed that the payment was made in error, Adjudicator Corapi ordered repayment in the full amount sought of $6,105.00.

Aviva General Insurance Company v. Manalastas (20-010171) & Manalastas v. Aviva General Insurance Company (20-007000)

The claimant sought entitlement to a number of OCF-18s, as well as a special award and interest. The insurer sought repayment of IRBs for the period of July 21, 2018 to December 2, 2018 in the amount of $6,865.97, and from December 2, 2018 to March 10, 2019 in the amount of $5,600.00. At the time of the accident, the claimant was working full-time at Pool People Limited, and also working part time at Longo’s. The claimant initially missed two months of work following the accident prior to returning full-time at Pool People, and returned to employment at Longo’s on July 30, 2018 on modified duties, and eventually returned full time on August 3, 2019. The claimant did not inform the insurer of the return to work. The claimant was paid $400 weekly in IRBs starting May 9, 2018 based on the OCF-10. Once the insurer discovered that the claimant had been working while receiving IRBs, the claimant was served with a notice of repayment pursuant to s.52 of the SABS for the period of July 21, 2018 to December 2, 2018 in the amount of $6,865.97. The insurer did not receive a response to this repayment request. The insurer also submitted that it was entitled to repayment of $5,600.00 for the period of December 2, 2018 to March 10, 2019. The insurer stated that the claimant had provided pay stubs at the Case Conference for the second disputed period, which showed an income of $8,689.55 in income from Pool People Limited. The insurer submitted that the repayment request should not be barred, as the pay stubs were only disclosed to them on February 17, 2021. In terms of the first disputed period, July 21, 2018 to December 2, 2018, the claimant stated that they could not afford to pay the lump sum back all at once, and had agreed to repay $200 monthly to the insurer. Adjudicator Kepman found that the insurer’s notice of repayment was compliant with s. 52 of the SABS, and had met the three part repayment test from case law. The claimant was ordered to repay $6,865.87, plus interest. In relation to the claimant’s request for an ongoing repayment schedule of $200 monthly, Adjudicator Kepman found no authority to order same. The claimant was therefore ordered to repay the full amount and interest, minus any amounts already repaid. In terms of the second disputed period, December 2, 2018 to March 10, 2019, Adjudicator Kepman noted that, while the claimant did not deny that they were working full-time during this period and receiving an IRB, no request for repayment under s. 52 had been provided. The insurer stated that it had only become aware of the issue at the Case Conference, when the pay stubs were disclosed, and had raised the issue at both the Case Conference and the Application to the LAT for repayment. Adjudicator Kepman noted that despite the insurer noting the issue and filing an Application, at no point was a proper repayment request pursuant to s. 52 provided to the claimant after either the Case Conference, or the filing of the LAT Application. As such, the request for repayment for the second period of dispute was dismissed.

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.