Category: Repayment

Aviva General Insurance Company v. Ghandahari (19-009382)

The insurer requested repayment as a result of benefit payments made based on the claimant’s wilful misrepresentation when she failed to disclose that the accident occurred during the course of her employment and she made a claim for benefits from the WSIB. The claimant did not participate in the hearing. Adjudicator Chakravarti agreed with the insurer that the claimant made wilful misrepresentations when she purposely failed to disclose that her accident occurred during the course of her employment, and again when she advised the insurer that she was commencing an action against a third party (and then failed to tell the insurer that she did not do so). As such, Adjudicator Chakravarti held that the claimant was liable to repay the insurer the benefits, with interest.

Aviva General Insurance Company v. Gurung (20-000592)

The insurer sought repayment of all IRBs paid to the claimant, totaling $36,456, based on the claimant failing to notify the insurer that she was earning income as the owner of a restaurant. The insurer argued that it was entitled to repayment of more than one year of IRBs because the overpayment was due to the claimant’s willful misrepresentation. Adjudicator Lake granted the insurer’s request for full repayment of IRBs. She held that the claimant made misrepresentations at an examination under oath, during IEs, and on OCF forms. Tribunal case law held that a misrepresentation was “”any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts””. This could include “”silence or a failure to report””.

Aviva General Insurance Company v. Muthusamythevar (19-009392)

The insurer applied to the LAT seeking repayment of an overpayment of IRBs made as a result of wilful misrepresentation. Adjudicator Boyce found that the insured failed to notify the insurer when he returned to full-time work, and he continued to collect IRB payments while working full time. Adjudicator Boyce agreed with previous LAT decisions that “silence or failure to report” can constitute wilful misrepresentation, and found that the insurer was entitled to repayment of IRBs made as a result of wilful misrepresentation, plus interest.

Unifund Assurance Co. v. M.D.C. (19-010729)

The insured applied to the LAT for various benefits. The insurer added repayment of an overpayment of IRBs to the issues in dispute. The insured failed to attend multiple case conferences, and his application was dismissed without a hearing as the LAT determined he had abandoned his claim. The matter proceeded to a written hearing on the issue of whether the insurer was entitled to a repayment of IRBs. Adjudicator Boyce found that the insured failed to notify the insurer when he returned to full-time work, and he continued to collect IRB payments while working full time. In addition, the insured submitted an Election of Income Replacement benefits after he had returned to work. Adjudicator Boyce found that the insurer was entitled to repayment of IRBs made as a result of wilful misrepresentation.

T.M. v. Aviva General Insurance (18-010477)

The claimant sought reconsideration of the Tribunal’s decision dismissing his claim for IRBs. The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to repayment. Both requests for reconsideration were denied. Regarding the claimant’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error of law in finding that the claimant was not employed at the time of the accident and that she had not earned employment income prior to the accident. Regarding the insurer’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error in conclude that the insurer’s request for repayment sent via email did not comply with section 64 of the SABS; the insurer required the consent of the claimant to send the notice for repayment by email, even though the claimant and insurer had communicated by email on previous instances.

T.M. v. Aviva General Insurance (18-010477)

The claimant sought reconsideration of the Tribunal’s decision dismissing his claim for IRBs. The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to repayment. Both requests for reconsideration were denied. Regarding the claimant’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error of law in finding that the claimant was not employed at the time of the accident and that she had not earned employment income prior to the accident. Regarding the insurer’s reconsideration request, Adjudicator Grant held that the Tribunal did not make an error in conclude that the insurer’s request for repayment sent via email did not comply with section 64 of the SABS; the insurer required the consent of the claimant to send the notice for repayment by email, even though the claimant and insurer had communicated by email on previous instances.

Heartland Farm Mutual Inc. v. Desjardins (19-008574)

The insurer sought repayment of $9,197.65 in IRBs it had paid to the claimant. The claimant’s initial application stated that he had been working at the time of the accident, and an OCF2 was submitted with income information supporting $303.65 per week in payments. The insurer was eventually provided with two Records of Employment that showed the claimant’s employment had terminated before the accident due to seasonal shortages and that he had not worked 26 weeks of the preceding 52 weeks. The insurer requested additional information from the claimant to show that he met the IRB entitlement test, but none was provided. Adjudicator Boyce awarded the insurer the full repayment, holding that the claimant had made a wilful misrepresentation regarding his employment status, which induced the IRB payments. The request for repayment was made within 12 months of the IRB payments and clearly set out the reasons and amount of repayment. Interest was also awarded on the repayment.

TD General Insurance Company v. Altaweel (19-010100)

The insurer sought repayment of $1,114.60 that had been paid to the claimant rather than to a court reporter for the cost of an EUO. The claimant never responded to the insurer’s requests for repayment, nor did he participate in the LAT dispute. Adjudicator Boyce awarded the insurer repayment. He held that the funds had been paid to the claimant in error, and that the notice of repayment was made within 12 months (in this case, only four days later). Interest was also awarded in the amount of the Bank Rate.

Aviva Insurance Canada v. K.B. (19-008307)

The claimant was involved in an accident on November 10, 2015. The insurer paid the claimant IRBs from November 17, 2015 until December 10, 2018, based upon the OCF-1 and OCF-2 submitted by the claimant. The insurer terminated IRBs based upon multiple IE reports. The claimant disputed the insurer’s termination and in turn provided tax returns from 2012 to 2016. Upon review of the tax returns, the insurer noticed that the claimant had not declared any pre-accident employment income, contrary to her claims on the OCF-1 and OCF-2. The insurer sought repayment of IRBs in the amount of $15,028.57 plus interest under section 52 of the SABS, only for the 12 months preceding the request. The claimant did not make any submissions. Adjudicator Boyce awarded the insurer the full amount in repayment, plus interest, holding that the insurer’s request complied with section 52.

W.E. v. Aviva Insurance Company (19-003285 and 19-009617)

This decision relates to two LAT files. The issues in dispute were whether the claimant’s initial LAT application should be dismissed as abandoned for the claimant’s failure to make written hearing submissions pursuant to a LAT Order, whether the claimant was entitled to ongoing IRBs, and whether the insurer was entitled to a repayment of IRBs. The hearing was heard in writing. The claimant made no submissions. Adjudicator Norris found that the claimant’s initial LAT application was dismissed as abandoned, and the insurer was entitled to a repayment of IRBs made as a result of error.