Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260

1-800-255-2214

TTY: 416-916-0548

1-844-403-5906

Fax: 416-325-1060

1-844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2

Tél. : 416 314-4260

1 800 255-2214

ATS : 416 916-0548

1 844 403-5906

Téléc. : 416 325-1060

1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

Date: 2017-04-06

Tribunal File Number: 16-001014/AABS

Case Name: 16-001014 v A. M.

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Aviva Insurance Company of Canada

Applicant

and

A. M.

Respondent

DECISION

ADJUDICATOR: Paul Gosio APPEARANCES:

Counsel for the Applicant: Amanda Faulkner Respondent: Did Not Appear HEARD: Written Hearing: December 5, 2016

Overview:

1The respondent was injured in a motor vehicle accident on June 27, 2015. He applied for and received an income replacement benefit (“IRB”) under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (“Schedule”).

2The respondent received $4,414.29 in IRB’s from July 4, 2015 to September 27, 2015.

3The applicant, Aviva Insurance Company of Canada, claims that during this time period, the respondent also received a short term disability benefit (“STD”) in excess of 70% of his gross pre-accident income and is therefore obligated to repay all of the IRB he received.

4The decision in this case is based solely on the applicant’s submissions and evidence as the respondent did not participate in the hearing.

Issue:

5Is the applicant entitled to receive a repayment in the amount of $4,414.29 representing all of the IRB paid to the respondent from July 4, 2015 to September 27, 2015?

Result:

6The applicant is not entitled to receive a repayment in the amount of $4,414.29 representing all of the IRB paid from July 4, 2015 to September 27, 2015.

Discussion:

7The applicant approved the respondent’s IRB on July 28, 2015. The respondent received $400.00 per week for the time period from July 4, 2015 to September 27, 2015. The respondent received a total of $4,414.29 in IRB’s.

8Section 47(1)1. of the Schedule provides that an insurer may deduct any temporary disability benefit being received by an insured person from the amount payable under the IRB.

9The applicant takes the position that the respondent received a STD benefit in excess of 70% of his gross pre-accident income during the time period from July 4, 2015 to September 27, 2015 and it is therefore entitled to deduct that amount from the amount payable under the IRB.

10If I accept the applicant’s position, then pursuant to section 52 of the Schedule, the applicant would be entitled to receive a repayment of the IRB paid in the amount of $4,414.29.

Did the respondent receive a short term disability benefit in excess of 70% of his gross pre-accident income during the time period from July 4, 2015 to September 27, 2015?

11The only evidence provided to me with respect to this issue comes by way of a sworn affidavit from Brian Samways, claims advisor with Aviva Insurance Company of Canada, dated November 4, 2016.

12In his affidavit, Mr. Samways states that on January 26, 2016, he spoke with the respondent’s legal representative who advised him that the respondent “had in fact received 100% of lost income from his STD provider.”

13Mr. Samways made a note regarding his conversation and requested repayment of the total IRB paid.

Analysis

14Onus is important in this case. The applicant has to prove on a balance of probabilities that the respondent received a STD benefit in excess of 70% of his gross pre-accident income during the time period from July 4, 2015 to September 27, 2015. If the applicant meets this onus, then it would be entitled to a repayment of the full amount of the IRB paid.

15In this case, the applicant has not met its onus.

16The statement that the respondent “had in fact received 100% of lost income from his STD provider” is clearly hearsay. The statement is in fact double hearsay. I agree with the applicant’s submission that I can admit the hearsay evidence under section 15(1) of the Statutory Powers Procedure Act which states that the Tribunal may admit any oral testimony and any document or other thing relevant to the subject-matter of the proceeding. Any concerns with respect to the reliability of the hearsay evidence goes to the proper amount of weight to be given to it.

17In this case, I do not give much weight to the hearsay statement for the following reasons. Firstly, I do not have any information as to how the respondent’s legal representative obtained the information provided to Mr. Samways. Secondly, I do not have any details which would allow me to identify who the STD provider is. Thirdly, the statement does not provide any details as to the amount of money paid by the STD provider and as to the timeframe of when the money was received by the respondent.

18In the absence of any other supporting evidence, the hearsay statement alone does not establish on a balance of probabilities that the respondent received a STD benefit in excess of 70% of his gross pre-accident income during the time period from July 4, 2015 to September 27, 2015.

Order:

19After considering the evidence, pursuant to the authority vested in the Tribunal under s.280(2) of the Act, the Tribunal orders that the applicant is not entitled to receive a repayment in the amount of $4,414.29 representing all of the IRB paid to the respondent from July 4, 2015 to September 27, 2015?

Released: April 6, 2017

Paul Gosio, Adjudicator