Licence Appeal Tribunal
Tribunal File Number: 16-004445/AABS
Case Name: 16-004445 v R. R.
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 Canada Inc.
Applicant
and
R. R.
Respondent
DECISION
Adjudicator: Anna Truong
Appearance: Nathalie V. Rosenthall, Counsel for the Applicant
Heard in writing on: April 26, 2017
OVERVIEW
1The respondent was involved in an automobile accident on December 2, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent applied for income replacement benefits (“IRB”), which was approved by the applicant insurance company. Subsequent to the approval, the applicant recognized several discrepancies relating to the respondent’s application for IRB and conducted an investigation for wilful misrepresentation.
2Finding wilful misrepresentation, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to seek repayment of the amounts that were paid to the respondent. The matter proceeded to a case conference, but the parties were unable to resolve the issue.
ISSUE TO BE DECIDED
3The following is the issue to be decided: is the applicant entitled to repayment of IRB in the amount of $9,673.38 plus applicable interest and the accountant fees in the amount of $2,353.93?
RESULT
4Based on the totality of the evidence before me, I find that the applicant is not entitled to repayment of IRB or the accountant fees.
ANALYSIS
5The respondent received notice of the hearing and the timelines ordered by the Tribunal, but did not provide any submissions or evidence in his defence. The only evidence submitted by the applicant is documentary evidence and I have considered all of the documents submitted.
6The applicant submits that it is entitled to a repayment from the respondent, because the respondent committed wilful misrepresentation for the sole purpose of claiming IRB.
7The applicant bears the burden of proving on a balance of probabilities that it is entitled to a repayment of IRB plus applicable interest and the accountant fees.
Failure to Provide Notice of Repayment Amount
8Section 52 of the Schedule requires a person to repay to the insurer any benefit paid to the person as a result of an error, or as a result of wilful misrepresentation or fraud, if the insurer gives notice of the amount that is required to be repaid.
9In paragraph 18 of the applicant’s submissions, it states that it advised the respondent of the repayment request on December 15, 2015. However, the applicant did not specify how the repayment request was communicated to the respondent.
10Subsection 52(2)(a) states: “if a person is liable to repay an amount to an insurer under this section, the insurer shall give the person notice of the amount that is required to be repaid.” (Emphasis added.)
11The Schedule uses mandatory language. The applicant must give notice to the respondent in order to seek repayment under section 55. The applicant has not provided any evidence with respect to the repayment request made to the respondent. The applicant only made submissions and submissions are not evidence. There is no evidence before me that notice of the repayment amount was provided to the respondent.
12Since the applicant has not provided evidence of the notice of repayment amount, I do not need to make a finding with respect to the respondent’s wilful misrepresentation. I find that the applicant has not met its statutory obligation under section 52 of the Schedule with respect to providing notice of the repayment amount. Therefore, I find that the applicant is not entitled to a repayment.
CONCLUSION
13For the reasons outlined above, I find that the applicant is not entitled to repayment of IRB, the accountant fees or interest.
Released: May 4, 2017
Anna Truong, Adjudicator