Certas Direct Insurance Company v. T. T.
Date: 2017-12-18 Tribunal File Number: 17-000272/AABS Case Name: 17-000272 v T.T.
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:
Certas Direct Insurance Company (Applicant)
and
T. T. (Respondent)
DECISION
Adjudicator: Sandeep Johal, Adjudicator
Appearances: For the Applicant: Karman Dhuga, Counsel For the Respondent: No one appeared for the Respondent
Heard in writing on: May 10, 2017
OVERVIEW
1The respondent was involved in a motor vehicle accident on October 14, 2014 and sought benefits from the applicant pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant paid various benefits to the respondent, including an income replacement benefit (“IRB”).
2The applicant later believed that the respondent was working during a period in which he was also receiving the IRB, and thus he was not entitled to $1,371.43 of the benefit corresponding to November 4, 2014 to November 27, 2014. The applicant filed this application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) seeking a repayment of that benefit for that period of time.
3A case conference was conducted on April 4, 2017, but the respondent, who is self-represented, did not attend. The case conference proceeded in his absence, and the matter was set for a written hearing on the repayment issue. Notice of the hearing was provided by the Tribunal, and the applicant also served its submissions to the respondent’s place of residence. The applicant’s proof of service was verified by way of a certificate of service.
4The repayment issue is now before me. The applicant filed written submissions. The respondent did not file any submissions or evidence with the Tribunal for the purposes of this hearing.
ISSUE IN DISPUTE
5The applicant sought to amend the issue in dispute for this hearing, from the way it was stated at the case conference. I accept the amended wording, because it narrows the period during which the applicant seeks repayment, and the respondent has been given proper notice of the issues to be decided in this hearing. Thus, the issue to be determined is.
i. whether the applicant is entitled to repayment of the IRB paid to the respondent in the amount of $1,371.43 during the period from November 4, 2014 to November 27, 2014.
RESULT
6Based on the written submissions before me, I find that the applicant is entitled to repayment of the IRB in the sum of $1,371.43 plus interest.
LAW
7Section 52 of the Schedule states that a person is liable to repay the insurer if any benefit is paid to the person as a result of an error, wilful misrepresentation or fraud.1
8The insurer must give notice within 12 months after the payment is made otherwise the person ceases to be liable.2 The 12 month stipulation does not apply if the benefit was paid as a result of wilful misrepresentation or fraud.3
ANALYSIS
9In order to decide this issue and whether the respondent is liable to repay a portion of the IRB he received, I need to answer four questions. First, was the applicant employed during the time period in dispute? Second, was adequate notice provided to him? Third, was the notice provided timely? And lastly, was the IRB paid as a result of wilful misrepresentation on the part of the respondent?
10The applicant bears the onus to prove, on a balance of probabilities, that it is owed repayment of a portion of the IRB paid.
Was the respondent working during the period of November 4, 2014 to November 27, 2014?
11I find the respondent was employed for the period of November 4, 2014 to November 27, 2014 for the following reasons.
12The applicant submits that on January 5, 2017, they received two Records of Employment (“ROE”) from the respondent’s place of employment.
13One of the ROE shows that the respondent worked for the employer as a labourer from November 4, 2014 to November 27, 2014, and lists the reason for the employment ending is because of “shortage of work/end of contract or season.” The ROE lists the respondent’s name and address. That record leaves little doubt that respondent was in fact employed from November 4, 2014 to November 27, 2014.
Did the applicant provide notice to the respondent as required by the Schedule?
14Even if the respondent was employed, section 52(2) of the Schedule requires the applicant to provide notice to the respondent that it is seeking a repayment. I find that the applicant provided sufficient notice as required by the Schedule for the following reasons.
15On January 5, 2017, the applicant wrote to the respondent’s legal counsel and carbon copied the respondent to provide the notice as required under section 52(2) of the Schedule. It stated the amount that is required to be repaid and the reason for the overpayment.
16On January 6, 2017, the applicant provided another Explanation of Benefits (OCF-9) to the respondent that there had been an overpayment in the amount of $1,371.43 for income earned at the employer from November 4 to November 27, 2014, and that, in accordance with section 52 of the Schedule, the applicant seeks payment by way of cheque payable to the applicant.
17The letter of January 5, 2017 and the letter with the Explanation of Benefits of January 6, 2017 provided the respondent with a contact person’s information. These letters clearly set out what the applicant is seeking from the respondent, however, there was no response from the respondent.
18The applicant then brought an application to the Tribunal on January 13, 2017 with the sole issue in dispute being the overpayment of IRB. The respondent did not submit a response to the application and, as stated above, the respondent did not attend at the case conference.
Was the notice provided by the applicant timely?
19Section 52(3) of the Schedule states that the obligation to repay an overpayment does not apply unless a notice, as required by section 52(2), is given within 12 months after the overpayment was made.
20In this case, the letters were clearly not given within 12 months after the overpayment was made, as required in section 52(3). However, section 52 goes on to state that the 12 month period does not apply if the amount “was originally paid… as a result of wilful misrepresentation or fraud.”
a. Was there wilful misrepresentation?
21The applicant relies on Aviva Canada v S.A.4 where Adjudicator Bass found the Financial Services Commission of Ontario (FSCO) case of Michalowski v St. Paul Fire and Marine Insurance Company5 to be persuasive for determining the test for misrepresentation. Arbitrator Blackman held:
…the onus is on St. Paul to prove that this provision applies to Mr. Michalowski in the factual situation herein, and if so, that he has indeed made a misrepresentation, that the misrepresentation was willful, and that what was misrepresented were material facts respecting his application for income replacement benefits…
Misrepresentation is defined in Black’s Law Dictionary (Revised Fourth Edition, St. Paul, Minnesota: West Publishing Co, 1968), as: 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.
22I agree with Adjudicator Bass and find that the test for determining misrepresentation is as stated by Arbitrator Blackman in the FSCO case.
23I find the respondent to have committed a wilful misrepresentation which allowed him to continue to receive the IRB for the period of November 4, 2014 to November 27, 2014 for the following reasons.
24The respondent reported to Dr. McCutcheon at the Insurer Examination (“IE”) on January 27, 2015 that he had not returned to work for his employer since the accident.
25At the IE with Dr. Friedman on February 4, 2015, the respondent reported once again that he had not returned to work in any capacity since the accident.
26This information is clearly contrary to the ROE completed by the employer on behalf of the respondent for the period in dispute, and thus is a wilful misrepresentation.
b. Is silence a wilful misrepresentation?
27A wilful misrepresentation alone does not avoid the 12 month rule. The applicant must also show that the original payment was as a result of the misrepresentation. In this matter, however, the disputed November 2014 payments occurred prior to the applicant’s wilful misrepresentations to the IE assessors in January and February of 2015.
28Thus, I must determine if silence or a failure to report constitutes wilful misrepresentation, or more specifically, whether the respondent’s silence in November 2014 about his return to work constitutes a wilful misrepresentation. It is my opinion, similar to the opinion expressed in the Michalowski decision, that, in general it may, depending on the circumstances and the party’s course of conduct. Often, silence could very well have been an oversight or a simple delay but I do not find that to be the case before me. In this case, I find that the respondent’s silence was a wilful misrepresentation.
29The respondent in this situation and as a result of his behaviour subsequent to him being paid the IRB for the period in dispute shows a pattern which points to wilful misrepresentation. Upon his return to work on November 4, 2014, he was silent and did not inform the insurer. He remained silent even upon his termination of employment. He then attended two separate IEs and stated to the doctors that he had not returned to work in any capacity.
30These facts taken together, in my view, point to an intention to wilfully misrepresent to the insurer that the respondent was still off work when the IRB was originally paid as a result of injuries related to the accident, when in fact, that was not the case.
31Based on the totality of the evidence presented before me, I find the respondent to have received IRB benefits to which he was not entitled as a result of wilful misrepresentation about the status of his employment.
CONCLUSION:
32In light of the forgoing, I find that the respondent was not entitled to IRB for the period of November 4, 2014 to November 27, 2014 and because these benefits were paid as a result of wilful misrepresentation, the respondent is liable to repay to the insurer the sum of $1,371.43 plus interest in accordance with section 52 of the Schedule.
Released: December 18, 2017
Sandeep Johal, Adjudicator