Anne Arulappu v. TD Home and Auto Insurance Company, 2017 ONFSCDRS 170

Financial Services Commission of Ontario

Commission des services financiers de l'Ontario

Neutral Citation: 2017 ONFSCDRS 170

Appeal P15-00052

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ANNE ARULAPPU

Appellant

and

TD HOME AND AUTO INSURANCE COMPANY

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

David S. Wilson for Ms. Arulappu

Pradeep Chandrashekhar for TD Home and Auto Insurance Company

HEARING DATE:

September 9, 2016, with additional submissions received by January 18, 2017

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The appeal from the arbitration order dated July 31, 2015, is allowed in part. The following paragraphs shall be added to the order.

2. Pursuant to s. 7 of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, for the purposes of determining the net weekly payments for loss of income that are being received by Ms. Arulappu as a result of the accident under the Sun Life income continuation benefit plan, TD Home and Auto Insurance Company is not required to subtract, from the gross weekly amounts of the Sun Life payments, the legal expenses incurred in seeking those payments.

3. This matter is returned to arbitration for a determination of the remaining issues in dispute.

4. If the parties are unable to agree about the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 19, 2017

David Evans

Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Arulappu was involved in an accident in August 2008. Under the SABS–1996,¹ she claimed income replacement benefits from her insurer, TD Home and Auto Insurance Company. TD calculated that Ms. Arulappu's IRB was greater than $400, so she was only entitled to the maximum $400 weekly benefit.

Ms. Arulappu also claimed short- and long-term income continuation disability benefits from Sun Life Financial ("Sun Life"). Sun Life initially paid STDs through December 2008. TD deducted the net weekly payments for loss of income being received by her under the Sun Life income continuation benefit plan from the IRB it had calculated, leaving a weekly benefit of around $100. This lesser amount, rather the maximum weekly benefit of $400, was the weekly benefit TD paid for the period Ms. Arulappu received LTDs from Sun Life.

At various points, Sun Life and TD terminated their respective benefits; Ms. Arulappu commenced proceedings against them both.

Ms. Arulappu's IRB claim against TD settled at the start of an arbitration hearing, with Minutes of Settlement signed in May 2011, but contingent upon the hearing arbitrator's issuing a consent order fixing the weekly payment at the weekly maximum of $400. Despite repeated requests from Ms. Arulappu, the consent order was not signed until April 2013.

Meanwhile, Ms. Arulappu's LTD lawsuit against Sun Life settled in April 2012. Ms. Arulappu advised TD of the settlement in May 2012. TD calculated the net weekly payments for loss of income from Sun Life based on the settlement and deducted them from the IRB it had recalculated.² The IRB minus those net weekly payments were less than the $400 weekly maximum, so TD advised that going forward it was paying the lesser amount. It also wrote Ms. Arulappu that in accordance with s. 52 of the New Regulation, "a person is liable to repay to the insurer, any benefit that is paid to that person as a result of an error on the part of the insurer, insured person or any other person, or as a result of willful misrepresentation or fraud."

Accordingly, TD was seeking repayment of over $40,000 in alleged overpayments going back to December 2008.

Ms. Arulappu immediately objected, noting that at most TD could claim repayments going back 12 months from its notice. TD nonetheless maintained its position through to its filing of a variation application of the consent order. In turn, Ms. Arulappu took the position that the Sun Life LTD payments were not deductible from the IRB, and if they were, then the net weekly LTD payments should be net of the legal expenses she incurred in the Sun Life lawsuit. As Sun Life had only paid a portion of Ms. Arulappu's legal bill as part of its settlement, she sought a finding that the remainder of the legal bill was deductible from the LTD payments and, hence, from any overpayment as well.

In the variation order dated July 31, 2015, Arbitrator Pressman found that Ms. Arulappu experienced a material change in her circumstances such that the consent order should be varied to allow for the LTD deduction from the IRBs. However, the Arbitrator found that the LTDs were not net of the legal expenses incurred by Ms. Arulappu to pursue those LTDs, and she also stated that the parties agreed that the quantum issue of the IRBs, as well as TD's claim for repayment, was "to be determined by agreement (or by a separate proceeding)." There was thus no order determining the IRB or the amount of the weekly benefit payable or whether there was any overpayment.

Ms. Arulappu does not appeal the order varying the consent order to allow the LTD deduction. However, she submits that the LTD deduction should be net of her legal expenses in the Sun Life lawsuit. She also submits that the matter has not been completed and should be sent back to arbitration for further findings.

I am prepared to deal with both issues, even though they do not appear in the formal order but only in the body of the decision. I find they are not mere obiter dicta or reasons made in the abstract, which are not subject to appeal.³

II. BACKGROUND

The two main issues are, first, whether this matter should be sent back to arbitration, mainly because further findings must be made regarding the IRB calculation, and, second, whether TD Home and Auto Insurance Company is required to subtract from the gross weekly amounts of the Sun Life payments the legal expenses incurred in seeking those payments to arrive at the net weekly payments.

IRB Calculation and Repayment

IRBs are determined under s. 6 of the SABS, but pursuant to s. 7 the actual weekly payment made to an insured is based on the lesser of the IRB minus deductions (such as for collateral benefits like LTDs) and the maximum weekly benefit of $400. In order to avoid confusion, I use the term "IRB" for the amount calculated under s. 6(1) and "weekly benefit" for the amount actually paid under s. 7.

Ms. Arulappu earned a gross annual taxable income of almost $46,000. TD initially calculated the amount of the IRB pursuant to s. 6(1), namely "80 per cent of the insured person's net weekly income from employment determined in accordance with section 61," as $535.34.⁴ Accordingly, pursuant to s. 7, and before considering any collateral benefits, Ms. Arulappu was only entitled to the maximum weekly benefit of $400 a week.

The collateral benefits issue arose because Ms. Arulappu noted on her initial application for benefits from TD that she had both "STD & LTD" coverage from Sun Life. Sun Life paid STDs from August 10–December 2, 2008. Pursuant to s. 7(1)1, Ms. Arulappu's net weekly payments for loss of income that she received as a result of the accident under Sun Life's income continuation benefit plan (calculated at $438.96) were deducted from the IRB of $535.34. Since under s. 7(1), TD only had to pay the lesser of the IRB after the deduction and the $400 maximum, this resulted in a weekly payment of $96.38.

However, once TD filed its variation application, Ms. Arulappu raised the issue that the IRB calculation did not include "other monetary compensation" like employer-paid benefits. Ms. Arulappu's rough calculation based on her employer's letter that set out a number of employee benefits would raise her IRB to about $755. However, that letter included CPP and EI expenses, but s. 61(1) of the SABS specifically provides that these expenses are not included in the calculation of net weekly income: Pafco Insurance Company and Howden, (FSCO P00-00028, June 22, 2001).⁵ Further, pursuant to Howden, not all of the other items in the employer's letter would be included either. Absent agreement, the issue of what benefits to include in the IRB calculation would have to be determined by an arbitrator.

Another point I raise is how TD dealt with income tax on the LTD benefits. The collateral benefit deduction under s. 7(1)1.i is actually for "net weekly payments for loss of income that are being received by the person..." Subsection 7(3) then mandates that the determination of net weekly payments shall be net of federal and Ontario taxes only.⁶ First, it is not clear if the deductions made by TD took that into account. Second, as discussed later, the fact that the net weekly payments are net only of taxes suggests that they are not net of legal expenses.

As noted above, TD stopped paying IRBs. An agreement to pay the maximum $400 weekly payment was reached on May 16, 2011. The long-sought consent order would prevent TD from reducing benefits unless, for instance, there was a change of circumstances – such as payment of collateral benefits – and a variation proceeding allowed that reduction, pursuant to s. 287 of the Act. As seen above, the only collateral benefits paid to May 2011 by Sun Life were the STDs.

While the parties awaited the consent order, the parties in the Sun Life disability benefit action settled by Minutes of Settlement dated April 20, 2012. On May 4, 2012, Ms. Arulappu wrote to TD to advise of the settlement, indicating that up to December 2011 the monthly disability benefit was $1902.16, and from January 2012, it would be $993.72, pending Ms. Arulappu's application for CPP benefits. (Just to show the complicated nature of this file, CPP benefits were later awarded, retroactively, and for some time Ms. Arulappu received a reduced Sun Life benefit to take account of the CPP overpayment.)

On June 14, 2012, TD advised Ms. Arulappu how it was revising her weekly payments. It deducted the weekly version of Sun Life's monthly benefit from the IRB (now recalculated by TD at $568.92),⁷ leaving a weekly payment that was less than the $400 maximum, so that reduced amount ($339.60) has been paid to Ms. Arulappu since.

TD also claimed repayment, writing on June 15, 2012, that this was its "first notice":

In accordance with Section 52 of the Statutory Accident Benefits Schedule, a person is liable to repay to the insurer, any benefit that is paid to that person as a result of an error on the part of the insurer, insured person or any other person, or as a result of willful misrepresentation or fraud.

TD sought repayment of $44,050.53 from December 6, 2008 to May 4, 2012, and advised that it was going to seek to reduce the $339.60 weekly payment by another 20% to repay the overpayment.

On June 26, 2012, Ms. Arulappu wrote to the adjuster stating that the calculated overpayment was grossly incorrect and that at most TD could claim for a 12-month period.

The basis for this statement is as follows: Under s. 52 of the New Regulation,⁸ while s. 52(1)(c) allows repayment for IRBs paid to the extent of deductible payments received, s. 52(3) only allows repayment for the 12 months preceding the notice required under s. 52(2), absent wilful misrepresentation or fraud. The initial notice of June 2012 never referred to s. 52(1)(c), nor did the subsequent Application for Variation.

Counsel for Ms. Arulappu wrote several times to TD requesting a response to the June 26, 2012 letter. TD sent a letter dated December 29, 2012, but it was essentially a restatement of that June 15, 2012 letter (attached to the Application for Variation). Further letters from counsel went unanswered.

During the same period, Ms. Arulappu continued to seek the consent order, which was finally signed on April 24, 2013.

The Application for Variation of that order was received by FSCO on September 5, 2013. It essentially repeated the claim sent by TD's adjuster back in June 2012 that Ms. Arulappu had misrepresented her circumstances, so TD was entitled to not only reduce the ongoing benefit to take account of the Sun Life payments (as it had been doing anyway, as I understand it) but to reduce it by another 20% to start to repay the alleged overpayment.

However, and to skip ahead a bit in the narrative, in a letter dated May 9, 2014, TD's counsel eventually dropped the allegation of misrepresentation. This means that, pursuant to s. 52 of the New Regulation, TD is entitled to at most repayment for the 12 months before it gave notice it wanted repayment, assuming it ever gave proper notice (as the notice did not refer to the correct reasons to seek a repayment in these circumstances).

In any event, after the Arbitrator acknowledged the Variation application, she arranged a teleconference for December 4, 2013. TD wrote on December 13, 2013, indicating that pursuant to the Arbitrator's instructions, TD was narrowing the issues. The letter repeats the allegation that the LTD claim had not been disclosed and that there should be an order reducing the weekly payment to $271.68 per week (that is, 20% off the already-reduced amount of $339.69) on the basis that Ms. Arulappu wilfully misrepresented facts regarding her IRB claim.

Counsel for Ms. Arulappu responded on December 16, 2013 that "The issues in dispute have now been clarified" and that he awaited TD's materials.

The Arbitrator subsequently sent a notice that the hearing would be by written submissions.

However, in Ms. Arulappu's responding written submissions and affidavit filed as part of the submissions dated April 4, 2014, she noted that the determination of the issues raised by TD required a determination of a number of other issues, including the correct amount of the IRB, whether the LTD benefits are deductible, what was the effect of the CPP benefits (referred to above), whether the net weekly payments for loss of income that were being received by Ms. Arulappu from Sun Life were also net of the legal fees incurred to pursue them, whether there was any overpayment and, if so, what is the amount that is collectable, and was there proper notice of the overpayment claim.

TD wrote in the May 9, 2014 letter referred to just above that it did not have extensive submissions regarding most of the issues raised in Ms. Arulappu's responding submissions of April 4, 2014. It still submitted that there had been an overpayment but no longer on the basis of wilful misrepresentation. It acknowledged that an accountant might be helpful to quantify the deductibility of disability and CPP benefits and proposed that the Application be adjourned pending the completion of an accounting report. Otherwise, the letter only dealt with the issue of whether the LTDs were deductible from the IRBs and whether Ms. Arulappu's legal fees were deductible from the LTD payments.

Only those last two issues – the deductibility of the LTDs from the IRBs and the deductibility of the legal fees from the LTDs – ended up being decided by the Arbitrator.

A teleconference was arranged on July 24, 2014, to discuss the next step.

While there was no confirming letter from the Arbitrator regarding the teleconference, Ms. Arulappu wrote to FSCO on May 5, 2015, regarding the issues:

At that time [of the July 24, 2014 teleconference] it was agreed that the Arbitrator would make findings with respect to the various issues as outlined in the material after which the parties would then obtain, to the extent necessary, accounting reports to comply with the findings of the Arbitrator. The Arbitrator would remain seized of the matter.

TD did not respond to that letter. The Arbitrator issued her decision on July 31, 2015. The actual order itself only deals with the deductibility of the disability benefits:

TD is permitted to deduct disability benefits received by Ms. Arulappu from the income replacement benefits to which she is entitled, pursuant to the Schedule.

As to the other issues, the Arbitrator wrote in the reasons that "The parties agreed that the quantum issue, as well as TD's claim for repayment, be determined by agreement (or by a separate proceeding)." A footnote indicated that the parties agreed that TD would retain an accountant to assist in the quantification of the IRB deductions (CPP and Sun Life benefits) and overpayment.

Ms. Arulappu does not appeal the finding that Sun Life's disability payments are deductible. However, she denies that she agreed to have all the other quantum issues left to an accountant, or that, failing agreement, she would start a separate proceeding.

She also appeals the finding regarding the non-deductibility of the legal fees.

Deductibility of Legal Fees from LTDs

To recapitulate, s. 6 sets out the amount of the IRB, and s. 7 sets the amount of the weekly benefit. For employed persons who are not self-employed, s. 6(1) applies. (Subsections 6(2) and (3) deal with post-accident income, and subsections (4) through (6) deal with the self-employed). Subsection 6(1) reads as follows:

6(1) The amount of the income replacement benefit shall be,

(a) for each of the first 104 weeks of disability, 80 per cent of the insured person's net weekly income from employment determined in accordance with section 61; and

(b) for each week after the first 104 weeks of disability, the greater of the amount specified in clause (a) and $185.

Section 61 in turn subtracts premiums for employment insurance and contributions to the CPP and income tax from the gross income to arrive at the net weekly income from employment, of which 80% is payable as an IRB.

Section 7 then sets out deductions for collateral benefits from the IRB [s. 7(1)1] and the maximum benefit [s. 7(1)2]. Whichever is the lesser of the IRB minus deductions and $400 is the weekly payment. The provision that affects Ms. Arulappu in particular is s. 7(1)1.i:

7.(1) Despite subsections 6 (1) and (5), but subject to subsection 6 (2) [post-accident income], the weekly amount of an income replacement benefit payable to a person shall be the lesser of the following amounts:

1. The amount determined under subsections 6 (1) and (5), reduced by,

i. net weekly payments for loss of income that are being received by the person as a result of the accident under the laws of any jurisdiction or under any income continuation benefit plan... [Emphasis added.]

2. The greater of the following amounts:

i. $400... .

As the Arbitrator noted, Ms. Arulappu submitted that the Sun Life disability payments she received should be net of the legal expense incurred in obtaining these payments. Although not set out in the Arbitrator's decision, the affidavit filed with Ms. Arulappu's submissions at the variation application indicate that the total legal fees including HST totaled about $34,000, of which Sun Life had paid $16,950. She was therefore seeking $16,906.66 as a credit on the basis that "net weekly payments for loss of income" should be net of legal fees as well.

The Arbitrator disagreed, finding nothing in s. 7 suggested that there was room for additional deductions such as legal expenses incurred to obtain collateral payments. She distinguished cases presented by Ms. Arulappu in a footnote as follows:

Ms. Arulappu relied on several court cases which in my opinion do not lend support to her submission that an Arbitrator has the ability to credit legal expenses in calculating an IRB deduction. Anand v. Belanger 2010 ONSC 5356, [2010] O.J. No 4064, dealt with a tortfeasor reaping the benefits of the risk and expenses undertaken by a plaintiff commencing a legal proceeding. Ananthamoorthy v. Ellison, 2013 ONSC 4510 focused on a tortfeasor escaping the responsibility to indemnify the plaintiff and Gratton v. Corporation of the City of London, 1994 CanLII 7263 (ON CTGD), 18 O.R. (3d) 354 was a claim for damages paid to a welfare recipient.

III. ANALYSIS

Based on the discussion above, it is apparent that this matter cannot be seen as concluded. There was some sort of misunderstanding about the effect of that July 24, 2014 teleconference. The result is that the parties are hardly any further ahead.

For instance, while TD was agreeable to sending the calculations to an accountant, there were findings that had to be made before even getting to an accountant, absent an agreement between the parties. Thus, with respect to the IRB calculation, while Ms. Arulappu's calculation of the work benefits that could be included in that calculation is over-optimistic, nonetheless it appears that some of the benefits could be included, based on Howden. If the parties do not agree, then there would have to be an arbitral finding even before sending the matter to an accountant.

It is also not clear if the LTD deductions were net of income tax, as required by 7(3). As for the alleged overpayment, there may need to be an arbitral finding on whether the notice is even valid so that TD can claim one.

Regardless, it would not be efficient to require the parties to start over, considering the legal issues that need to be decided even before an accountant gets involved. As it stands, the weekly benefit payable of $400 in the consent order has not been changed. The Arbitrator's decision only expresses a principle, but there is no order stating what amount is actually payable.

Accordingly, the matter will be returned to deal with the issues discussed above. That is, regarding the IRBs, there needs to be a determination of which employee benefits would be included in income pursuant to Howden. There also has to be a determination of how the CPP benefits are to be dealt with. As for repayment, there needs to be a determination of whether there was a proper notice and, if so, when, since now it appears TD agrees that there was no wilful misrepresentation, so repayment can only run from 12 months prior to a valid notice.

A referral to an accountant could be agreed to once the legal issues are settled.

However, as to the deductibility of the legal fees from the LTD benefits, I am in agreement with the Arbitrator. The statute does not allow it. Further, we have no jurisdiction to assess court expenses.

First, I agree with the Arbitrator that there is no place in s. 7 for additional deductions. Ms. Arulappu submits that Anand v. Belanger, 2010 ONSC 5356, cited by the Arbitrator as noted above, is on point. That case dealt with the deduction of IRBs in the context of a tort claim, namely the exception to the collateral source rule in 267.8(1) of the Act. That subsection provides in paragraph 1 that tort damages for income loss and loss of income capacity are reduced by "All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity."

Ms. Arulappu submits that the court focused on the word "received" and that it would be inequitable to require the plaintiff alone to bear the cost of recovery. Of course, in Anand, all the IRB payments recovered went to the benefit of the insurer. At best, only a portion – and perhaps none – of the LTD payments will do so in this case. But aside from that the law is different. Subsection 267.8(1) refers to all payments received.

All payments are, however, not deductible under the SABS.

Rather, what are deductible under s. 7(1)1.i of the SABS are net weekly payments for loss of income that are being received by the person as a result of the accident. This phrase is narrowly defined in s. 7(3):

(3) For the purpose of this section, net weekly payments for loss of income shall be determined by subtracting from the gross weekly amount of payments for loss of income the income tax payable by the person under the Income Tax Act (Canada) and the Income Tax Act (Ontario) on the gross weekly amount of payments for loss of income. [Emphasis added.]

This is a mandatory provision, as for the purposes of s. 7, the net weekly payments shall be determined by subtracting income tax. The only deduction, therefore, is for a defined term – net weekly payments for loss of income – and they are determined strictly by subtractions for income tax. As was stated in obiter in Trottier and Royal & SunAlliance Insurance Company of Canada, (FSCO P03-00019, December 15, 2003), where the same argument about the deductibility of legal expenses was raised: "In my view, s. 7(3) governs the determination of net weekly payments for loss of income, leaving little room for additional deductions."

I agree with that statement. Accordingly, I find that s. 7(3) does not allow for the deduction of legal expenses sought by Ms. Arulappu.

More fundamentally, there is no jurisdiction in this tribunal to make the order requested because it requires an assessment of costs of a court proceeding – that is, whether to deduct all, none, or some of the court expenses, just as the courts have done. For instance, in Siddiqui v. Siddiqui, 2015 ONSC 6260, the court held that Anand did not stand for the general principle that the deduction against the tort award should be the net amount after deducting legal fees in all cases. Rather, there needs to be an assessment. In Siddiqui, the court might have reduced the legal fees if the defendants had obtained more documentation. In Intact Insurance Company v. Marianayagam, 2016 ONSC 1479, the court stated that "because of the twelve-month cap on reimbursement for the overpayment, [the Insurer] is already taking a haircut in the deduction and no further cuts should be made." [Para. 34]

And in Carr v. Modi, 2016 ONSC 1300, only some expenses were allowed. Carr was a tort case, but earlier there had been an arbitration hearing regarding the same accident. The Arbitrator had awarded $26,669.63 in costs. As Lederer J. put it, "Counsel for the plaintiff does not think that this is enough. In his request for costs, he seeks a further amount in recognition of the cost of the arbitration." The Court concluded that, since the tortfeasor was saved from some liability due to the accident benefits claim, then some portion of the accident benefit expenses claim should be payable by the tortfeasor beyond what was awarded by the Arbitrator. The total fees of the AB claim, net of what the first party insurer paid, was over $40,000, of which the plaintiff (represented by the same counsel as in this case) was prepared to take about $24,000. The Court was prepared to award that amount, given the reduction in costs.

This decision was upheld on judicial review in Carr v Modi, 2016 ONSC 7255. As it was issued after the appeal hearing, and it was supplied to me by Ms. Arulappu's counsel, I allowed the parties to make further submissions on it. Again, the point is made by the Divisional Court that the lower court was reviewing the costs from the arbitration:

The motion judge then went on to determine the quantum of costs from the arbitration that could be recovered in the tort action. He did not award the whole amount of $44,000 claimed, but rather awarded $24,000 for fees plus disbursements of approximately $6,000, leaving therefore some of the costs of the arbitration to be absorbed by the plaintiff.

In conclusion on this point, allowing a deduction for legal expenses as requested would be the same as ordering expenses for a court proceeding. However, the only jurisdiction we have is to order expenses in arbitration and appeal proceedings. We have no jurisdiction to award or assess court costs.

Accordingly, I find the Arbitrator was correct to state that the legal fees are not deductible from the net weekly payments for loss of income paid by Sun Life. The statute does not allow it, nor can we order an insurer in an arbitration proceeding to pay costs in a court proceeding.

The appeal is therefore rejected with respect to Ms. Arulappu's claim for a deduction of legal fees from the Sun Life net weekly payments for loss of income.

The appeal is allowed with respect to sending this matter back to arbitration. Two paragraphs will be added to the Arbitrator's order to clarify those points.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 19, 2017

David Evans

Director's Delegate

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the "New Regulation") came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996 (the "Old Regulation") shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010.
2. 2The calculation in 2012 differed from that of 2008, for no apparent reason.
3. 3See Allstate Insurance Company of Canada and Progressive Casualty Insurance Company of Canada and Saliba, (FSCO P01-00031, July 24, 2001), and TD General Insurance Co. v. Ontario (Minister of Finance), 2011 ONSC 401.
4. 4Later raised without explanation to $568.92.
5. 5Although I raise Howden on my own, counsel for Ms. Arulappu is well aware of this case, having tried to distinguish it in Allstate Insurance Company of Canada and Simpson, (FSCO P01-00057, June 6, 2003).
6. 6For income tax purposes, the insured is treated as an Ontario resident: s. 7(4).
7. 7TD never did explain the difference between its 2012 IRB figure and the lesser one of 2008.
8. 8Under s. 3(1.2) of the Old Regulation, the old repayment provision of s. 47 does not apply after August 31, 2010.