Category: Repayment

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.

Security National Insurance Company v. Balgobin (20-003118)

The insurer requested repayment as a result of IRB payments made in error due to the claimant’s failure to notify the insurer that she had already returned to work. The claimant did not participate in the hearing. Vice Chair Boyce found that the insurer acted diligently upon receipt of information that the claimant was no longer entitled to IRBs and that the notices sent to the claimant requesting repayment met both the procedural and timeline requirements as set out in the SABS. As such, Vice Chair Boyce held that the insurer was entitled to IRB repayment in the amount of $3,257.14 plus interest.

Jevco Insurance v. Owusu-Achiaw (19-012474)

The insurer requested repayment as a result of IRB payments made based on the claimant’s material misrepresentation over his address and the resulting insurance premiums. The claimant did not participate in the hearing. Vice Chair Boyce found that the claimant made a willful misrepresentation in failing to disclose his correct address in order to attract a lower premium, and that the significant difference of $3,990 in the premium rate was material. As such, he held that the insurer was entitled to repayment of $7,181.76 due to the claimant’s material misrepresentation, and awarded costs in the amount of $106 as a result of having to submit an application to the Tribunal to secure an order.

Aviva General Insurance v. E.R. (19-001839)

The insurer requested repayment as a result of IRB payments made in error, as it was unaware that the claimant had returned to work until it received the information in a section 44 IE report. The claimant argued that it was prejudicial for his own insurer to penalize him as a result of their error. Vice Chair Boyce rejected the claimant’s argument, as the prejudice was actually to the insurer, who relied in good faith on the information provided to it by the claimant when issuing the IRB. He further noted that claimant had a responsibility to notify the insurer of a return to work when in receipt of an IRB. As the insurer’s notice of request for repayment met the 12 month timeline criteria to support its claim, Vice Chair Boyce held that the insurer was entitled to repayment of $8,650.60 plus applicable interest.