Case Name: 18-002099 & 18-004400 v Security National Insurance Company
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:
G. L.
Appellant(s)
and
Security National Insurance Company
Respondent
DECISION AND ORDER
PANEL: Terry Hunter, Vice-Chair
Appearances:
For the Appellant: Gabrielle Chowne, Counsel
For the Respondent: Diana Oliveira, Counsel
Heard: Teleconference Hearing: October 16, 2018
OVERVIEW
1The applicant was involved in an automobile accident on April 5, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2A case conference was held July 9, 2018 and the adjudicator included as an issue in dispute as issue [4] IV whether the applicant is liable to repay the respondent $7,910.00 for non-earner benefits.
3The applicant did not consent to the inclusion of the above issue arguing it should be the subject of an Application by the respondent to the Tribunal.
THE MOTION
4The applicant brought a motion dated August 20, 2018 to remove this issue from the disputes proceeding to the hearing.
5The parties made written and oral submissions.
RESULT
6The motion is denied.
REASONS
7I find I do not have jurisdiction to set aside the provision in the Case Conference Order including the repayment issue. The essence of the motion is that to include this dispute is an error in law or alternatively it is a breach of procedural fairness. Both of these grounds are included in the criteria for granting reconsideration in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. The applicant should have brought request for reconsideration pursuant to Rule 18.1. It would not be appropriate for me to rule on the correctness of an adjudicator’s order in a motion hearing.
8I am however sympathetic to the applicant’s concern that he did not have sufficient time to respond to the respondent’s over-payment claim. There are a number of issues which arise in section 52 of the Statutory Accident Benefits Schedule-Effective September 1, 2010. Subsection (3) provides a 12 month limitation period in which an insurer can claim repayment. The respondent has not provided particulars of which payments if any are excluded from repayment due to the limitation although it would appear some may be outside the 12 month limitation. Sub section (3) contains a caveat that the limitation period does not apply if it was to a claimant as a result of wilful misrepresentation or fraud. The respondent has not provided notice that it is relying upon this caveat nor has it furnished any particulars.
9It would be procedurally unfair to the applicant to allow the matter to proceed to hearing without compelling the respondent to provide both a breakdown of the repayments claimed in relation to the limitation period. The respondent should also be compelled to provide particulars of misrepresentation or fraud if raised.
ORDER
10I order the respondent to provide particulars of:
(1) The dates in which payments for non-earner benefits were made and which payment they assert are within the 12 month limitation period.
(2) If fraud or wilful misrepresentation are alleged particulars of the alleged misconduct.
(3) These particulars shall be provided to the applicant by November 2, 2018.
Released: October 25, 2018
__________________________
Terry Hunter
Vice-Chair