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.

Samuels v. BelairDirect Insurance Company (20-000929)

The claimant applied to the LAT disputing entitlement to the MIG status and medical/rehabilitation benefits. Concurrently, the insurer sought a repayment of approximately $5,000 in medical benefits paid above the MIG limits. Adjudicator Lake found the insurer was not entitled to the repayment. The claimant applied to two insurers for benefits: BelairDirect and Zenith. After a priority dispute, Belair paid Zenith approximately $5,000 for reimbursement of benefits paid. Adjudicator Lake held that s. 52 of the SABS is limited to repayment of benefits paid to a person as a result of an error, or as a result of willful misrepresentation or fraud. Adjudicator Lake agreed that the claimant made several misrepresentations in this matter, including his failure to report the involvement of two insurers in his claim. However, Adjudicator Lake found that s. 52 only permits repayment of benefits that were “paid to a person” and because the insurer reimbursed Zenith directly, the insurer was not entitled to repayment under s. 52.

Aslivo v. Aviva Insurance Canada (19-004717)

The claimant applied to the LAT seeking a special award and entitlement to interest on two lump sum payments of IRBs made by the insurer. The insurer sought repayment of an overpayment of IRBs. Vice Chair Flude began the analysis by stating: “While the Schedule has been characterized as consumer protection legislation and should be given a broad and liberal interpretation, it is important to bear in mind that the obligations of the parties are mutual. No level of broad and liberal interpretation can save a consumer who simply refuses to cooperate with an insurer.” With regards to the first lump sum payment of IRBs, Vice-Chair Flude separated the issues into two distinct periods. In the first period, leading up to an IRB response letter / s. 33 request, the insurer was not in compliance with its obligations under the SABS to respond to the IRB application within 10 days. In the second period (after making the request for documents), the insurer was in compliance with the SABS. Vice-Chair Flude found that the insurer was liable to pay interest during the period it was in non-compliance with the SABS. The insurer was not liable to pay interest on the lump sum amount for the period starting when the reasonable s. 33 requests were made until the s. 33 requests were complied with (at which time the insurer paid the lump sum amount). The second lump sum payment was made for a period during which the claimant’s entitlement to IRBs had been terminated based on IE assessments. The lump sum back payment was made after the claimant was re-assessed and it was determined that her condition had deteriorated such that she met the test for IRBs. Adjudicator Flude found that although the insurer had not acted unreasonably when terminating the benefit for a period, interest was payable on the lump sum back payment. The situation was found to be analogous to a claimant being successful in an application for an IRB to the Tribunal. Adjudicator Flude found that the insurer was entitled to repayment of an overpayment of IRBs for a specific period, as claimed. The claimant was not entitled to a special award.

Abadicio v. Economical Insurance Company (20-000099)

The claimant sought removal from the MIG and entitlement to three assessments. The insurer sought repayment of $7,120 in IRBs. Adjudicator Farlam held that the claimant failed to prove that she did not suffer a minor injury. She also concluded that the insurer was entitled to repayment of IRBs. The claimant had returned to work October 25, 2017 (one month after the accident) but did not notify the insurer until early 2018. There was no evidence that the claimant communicated the return to work at an earlier date, despite having a clear duty to advise the insurer. Adjudicator Farlam concluded that the claimant willfully misrepresented his work status while continuing to collect IRBs even though he no longer met the disability test. The insurer’s notice complied with section 52 even though the initial quantum of repayment increased later as more information became available. Additionally, the one year limitation on repayment did not apply, as the claimant made a willful misrepresentation regarding work status.

Travelers Insurance Company of Canada v. Matich (19-008573)

The insurer applied to the LAT seeking repayment of IRBs. The claimant did not participate in the hearing. Adjudicator Grant found the evidence established the insurer paid the claimant an IRB during a period when the claimant had returned to work and had failed to notify the insurer of same. The insurer relied upon statements from the claimant’s employer, and on surveillance showing the claimant at her places of work on multiple dates over the same period she was receiving IRBs. Adjudicator Grant 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.

Hines v. TD Insurance Meloche Monnex (19-006324)

The claimant disputed entitlement to IRBs. The insurer sought repayment of IRBs paid to date due to the exclusion barring IRB entitlement when a person is operating an uninsured vehicle (section 31(1)(a)(i)). Adjudicator Farlam dismissed the IRB claim and ordered the claimant to repay all IRBs due to the exclusion. She held that the claimant new or ought to have known that his vehicle was uninsured. He placed insurance through a “broker” by email after meeting the “broker” at a gas station. The claimant paid the “broker” in cash, and he received no payment or policy documentation from the “broker”. He also never received an invoice for insurance. Additionally, the text messages with the “broker” contained blatant irregularities, including misspelling “insurance” and “Ontario”. Adjudicator Farlam found the claimant’s evidence that he believed he had purchased valid insurance to be non-credible. The claimant was employed and high school educated, and had previously placed legitimate insurance on a vehicle.

Aviva General Insurance Company v. Fynn-Williams (20-002276)

Aviva brought an application seeking repayment of IRBs because the claimant wilfully misrepresented facts in relation to her return to work and receipt of maternity benefits while she received IRBs. Adjudicator Boyce found that Aviva was entitled to repayment in the amount of $14,568.36 due to overpayment of IRBs. Adjudicator Boyce agreed with Aviva that the onus is on the claimant to notify the insurer of any post-accident income and return to work. While the claimant told the s. 44 assessors that she was on maternity leave, this was not equivalent to her obligation to tell Aviva that she was in receipt of maternity and paternal benefits. Despite being represented by counsel, the claimant never told Aviva of her receipt of maternity benefits or her return to work until Aviva terminated her benefits and sought repayment. Adjudicator Boyce found that while the claimant reported being on maternity leave and returning to work to the s. 44 assessors, this was not the same as independently informing Aviva about her income or her return to work. Adjudicator Boyce found that this knowledge was exclusive to the claimant.

Aviva General Insurance v. Mehdi Najmialdin (20-001336)

Aviva brought an application arguing that the claimant was not involved in an accident and sought repayment of IRBs in the amount of $22,647.59. Aviva relied on surveillance showing the claimant attending his place of employment on several occasions as well as review of the police report from the January 11, 2019 accident that showed that the claimant was not listed as an occupant of any vehicles involved in the accident. The claimant had said he would call two occupants of the vehicle he was in at the hearing, but then at the hearing, did not call anyone and relied on his own testimony. Aviva relied on the statements from the attending police officer and the other driver involved in the accident. Adjudicator Grant found the evidence of the police officer and other driver compelling. Adjudicator Grant found that Aviva acted diligently and requested repayment within the designated time and that the claimant wilfully misrepresent his claim for accident benefits.

Unica Insurance Inc v. Girwall (19-007804)

The insurer sought repayment for the total amount of IRBs paid ($10,428.55) pursuant to section 52 of the SABS, as the respondent failed to notify it of his return to work shortly after the accident, resulting in an overpayment of IRBs. The claimant did not participate in the proceedings. Vice Chair Boyce found that the insurer was entitled to an IRB repayment in the amount sought, plus interest. The evidence indicated that the insurer paid the claimant an IRB during a period when he had already returned to work, and acted diligently upon receipt of the information. The insurer’s notice of request for repayment met the 12 month timeline prescribed by the SABS, and clearly stated the type of benefit paid (IRB), the payment period for which payment was sought, and the amount of repayment sought.