Tribunal File Number: 17-001773/AABS
Case Name: Unifund Assurance Company vs 17-001773
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Unifund Assurance Company
Applicant
and
R.O.
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: Monika S. Korona, Counsel
For the Respondent: Sergio Grillone, Counsel
HEARD: Written Hearing: September 22, 2017
OVERVIEW
1The applicant is seeking to recover an overpayment from the respondent who was injured in an automobile accident on February 23, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
2The applicant submitted an Application for Dispute Resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
3Following a case conference held on June 13, 2017, and on June 26, 2017, the parties participated in settlement discussions but were unable to resolve the issues in dispute.
ISSUES AS NOTED IN THE CASE CONFERENCE ORDER RELEASED July 13, 2017
4The issues in dispute were identified and agreed to as follows:
a) Is the respondent liable to repay the applicant the income replacement benefits she received in the amount of $17,200.00 from March 3, 2014, to July 7, 2015?
b) Is the applicant entitled to interest on the over payment of benefits?
RESULT
5I find that the respondent is liable to repay to the applicant, the income replacement benefits she received in the amount of $17, 200.00 for the period from September 6, 2014, to July 7, 2015.
6I find that the applicant is entitled to interest on the overpayment in accordance with section 52(6) of the Schedule
THE LAW EVIDENCE AND ANALYSIS
LAW
7Section 52 (1) (a) of the Schedule requires the repayment of any benefit paid to a person in error by an insurer, or paid as a result of wilful misrepresentation or fraud.
8Section 52(3) of the Schedule requires notice of any repayment to be given within 12 months after the payment of the amount was paid. Otherwise, the amount does not have to be repaid unless wilful misrepresentation or fraud is involved.
9The courts have held that a proper notice should contain:
a) identification of the type of benefit that was overpaid;
b) the payment period for which repayment is sought;
c) the amount of repayment sought;
d) amount claimed need not be perfectly correct, but it should be substantially correct.1
10The arbitrator found in Molnar v. Coachman Insurance Company that an insured must repay amounts paid in error, regardless of the source of the error. 2
11The arbitrator in Randall v ING Insurance Co. of Canada found that the notice provided by the insurer advising the insured, that the insurer was seeking a lump sum amount for income replacement benefits during a specific time frame was proper notice and ordered the insured to repay the income replacement benefits that had been paid in error. 3
12Section 52(5) of the Schedule allows interest to be charged on any overpayment found to be owed.
13Section 52(6) of the Schedule defines “bank rate” as the bank rate established by the bank of Canada as the minimum rate at which the bank of Canada makes short term advances to the banks listed in the schedule 1 to the Bank Act.
14The Licence Appeal Tribunal has found that an insurer is entitled to interest payable on overpayment of income replacement benefits, pursuant to section 52 of the schedule. 4
15Section 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure permits costs to be asked for, where another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. 5
EVIDENCE
16On July 7, 2015, a fax was sent to the respondent’s lawyer with the explanation of benefits indicating that:
a) The income replacement benefit was terminated effective September 6, 2014
b) That the amount of the overpayment was $17,200.00.
c) That if the applicant was in error in finding that the applicant had gone back to work on September 6, 2104, to provide medical evidence as to when the Respondent returned to work.
d) That the amount for repayment was being made under Section 52(1a) (2) of the Schedule.
17The parties do not disagree on the fact that the Respondent had returned to full time work on September 6, 2014.
18The parties do not disagree that the applicant provided an explanation of benefits dated July 7, 2015, in which it indicated that the income replacement benefit was terminated effective September 6, 2014, and that there was an overpayment in the amount of $17, 200.00.
19The parties do not disagree that the explanation of benefits also indicated that the respondent’s doctor Dr. Howell must provide a letter of explanation confirming if there was an error in his report, stating that the respondent had gone back to full time work as of September 6, 2014.
20The respondent’s position is that the applicant did not set out properly the period for when the repayment was calculated to be repaid, and therefore there is no repayment owing, of benefits paid.
21The respondent’s position is also that the respondent is owed further income replacement benefits for the period of August 31, 2015, to September 2016, in the amount of $20,800.00. The respondent therefore wants to claim a set off of any moneys owing on any repayment to the applicant.
22The applicant’s position is that the applicant has met the requirements of proper notice as required by the Schedule and by case law. The applicant also relies on the Intact and Marianyagam case as set out above, where Justice Perell accepted an accounting report which did not confirm the correct amount of overpayment and did not include the accurate period of time for the overpayment. The insured was ordered to repay benefits.
ANALYSIS
23I find that the applicant has met the requirements for notice under section 52 of the Schedule, and as further defined by case law set out above.
24I find that it is clear how the $17,200.00 was arrived at for the period from September 6, 2014 (date of return to work) to July 7, 2015 (date of notice) at the weekly rate of $400.00.
25I find that there is an overpayment by the applicant in the amount of $17, 200.00 to the respondent.
26I find that interest is payable by the respondent on the overpayment in accordance with section 52(6) of the Schedule.
27The issue of payment of income replacement benefits owing beyond the July 7, 2015, date raised by the respondent, is not an issue that this tribunal is seized with at this written hearing. This issue therefore has to be dealt with at another time, along with the respondent’s claim for set off.
28The applicant is seeking it costs against the respondent.
29Any costs to be awarded have to deal with unreasonably, frivolously, vexatiously, or in bad faith conduct, by either party during the application for the appeal. Issues that occurred between the parties before the application for the appeal are not looked at.
30The applicant’s claim for costs are based on the issue that the initial case conference was adjourned on the eve of the case conference by the respondent and on the issue that the respondent failed to attend the second case conference scheduled for June 13, 2017.
31There is no other information before me to provide more detail as to why the case conference was adjourned, whether it was adjourned on consent, reasons for adjournment, or was argued before another arbitrator. There is no other information before me, as to why the respondent failed to show up for the second case conference.
32The onus is on the party asking for costs to provide sufficient evidence to meet the high requirements of proof for an order of costs under Rule 19.1. This evidentiary burden has not been satisfied by the applicant.
33I therefore am not making any order as to costs.
ORDER
34I order that the overpayment of $17, 200.00 plus interest, be paid back by the respondent to the applicant.
Released: January 16, 2018
Robert Watt, Adjudicator
Footnotes
- Intact Insurance Company v Marianyagam 2016 ONSC 1479
- Molnar v Coachman Insurance Company (2003 CarswellOnt 3740)at para 30
- Randall v ING Insurance co. of Canada(2007 Carswell Ont 3897FSCO) at paras 22-23 and 26, Aviva Canada v S.A. 2016 CanLII 96161 (ON LAT)
- TD General Insurance company v A.B. (2016 CanLII 96094 LAT) dated December 7, 2016 at para 41-43
- Licence Appeal Tribunal Rules of Practice and procedure (April 1, 2016)```