Safety, Licensing Appeals and Standards Tribunal 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

RECONSIDERATION DECISION

Before: D. Stephen Jovanovic, Associate Chair Date: October 11, 2018 File: 17-001773/AABS Case Name: Unifund Assurance Company v. R.O.

Written Submissions By: For the Applicant (Unifund): Damien Van Vroenhoven For the Respondent: Sergio Grillone

Overview

1On January 16, 2018, the Tribunal issued a decision concerning an application for dispute resolution under s. 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, (“AABS Claim”) in relation to an overpayment of income replacement benefits (“IRBs”) the applicant, Unifund Assurance Company (“Unifund”), made to R.O. (the “insured”).

2Unifund sought repayment of IRBs paid to the insured on the basis that the insured had returned to her previous employment without notifying Unifund in a timely manner.

3The Tribunal found that Unifund was entitled to repayment since, in its view, Unifund proved that it complied with the requirement under s. 52(2)(a) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”) to provide notice to the insured and that there was overpayment.

4The Tribunal also found that interest was payable by the insured on the overpayment amount in accordance with s. 52(6) of the Schedule.

5Throughout the proceeding, the insured raised the issue that she was entitled to IRBs. The insured’s argument was that her entitlement to IRBs during a time period subsequent to the overpayment should be set off from the overpayment and that the Tribunal should have deducted IRBs still owed to her from any repayment obligations to Unifund, as this was an issue properly before the Tribunal.

6The insured has requested a reconsideration of the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 2 (October 1, 2017) (the “Rules”) on the basis that the Tribunal did not adequately adjudicate the issue of IRBs entitlement or set off.

7For the reasons that follow, I partially grant the request and refer the matter back for a hearing on the issue of IRBs entitlement and set off, if any. The Tribunal’s decision regarding overpayment and interest is not varied.

Background

8The insured was injured in a motor vehicle accident on February 23, 2014. Unifund paid IRBs for the period of March 3, 2014 to July 7, 2015, based on evidence from the insured that she was unable to work following the accident.

9The insured returned to her employment on September 6, 2014 and continued working until June 20, 2015. She did not provide timely notification to Unifund of her return to work and the payment of IRBs continued at the same rate while the insured was working.

10Upon learning that the insured had returned to work while receiving IRBs, Unifund notified the insured, in a letter dated July 8, 2015, that there had been an overpayment of IRBs and that her IRBs were terminated effective September 6, 2014. Finally, the insured was notified that repayment of the overpaid IRBs was requested pursuant to s. 52 of the Schedule.

11Unifund made an AABS Claim to the Tribunal on March 20, 2017, claiming entitlement to repayment of IRBs in the amount of $17,200.00, plus interest.

12A Case Conference in this matter was held by teleconference on June 26, 2017, but the parties were unable to resolve the matter. The case conference report dated July 13, 2017 framed the issues in dispute as such:

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 benefits?

13The Tribunal set out these same issues in its decision noting that these issues were “identified and agreed to.”

14Following a written hearing on September 22, 2017, the Tribunal ordered the repayment of $17,200, plus interest, to Unifund.

15Significantly, the insured’s two year limitation period for disputing the IRBs entitlement ran out during the proceeding, as Unifund’s notice denying IRBs dates back to July 8, 2015.

16The Tribunal’s decision was released on January 16, 2018. Realizing that the issue of IRBs entitlement was not addressed by the Tribunal, the insured then filed a second and separate AABS Claim on January 23, 2018 (18-000522) on the issue of IRBs entitlement. About a week later, the insured also made a request for reconsideration of the Tribunal’s decision.

17The insured challenges the Tribunal’s decision on the basis that the Tribunal made a significant error of fact, violated the rules of procedural fairness and acted outside its jurisdiction. The challenge is based on the decision of the Tribunal not to adjudicate IRBs entitlement and set off. More specifically, the failure of the Tribunal to consider the assertion that the insured is owed $20,800 in IRBs for the period of June 30, 2015 to September 6, 2016. It is the insured’s position that what she owes to Unifund ($17,200.00 plus interest) should be offset by Unifund’s requirement to pay the outstanding IRBs.

18I have been delegated the authority by the Executive Chair to decide this reconsideration request.

Analysis

19The request for reconsideration due to the Tribunal’s failure to adjudicate IRBs entitlement and potential set off is granted for the reasons that follow.

20It is the insured’s position that by refusing to consider their argument that the overpayment amount is set off by outstanding IRBs by Unifund to the insured, the Tribunal acted outside its jurisdiction and violated the rules of natural justice and procedural fairness.

21I find that the Tribunal made a significant error of law in not considering certain arguments and evidence related to the issues raised by the insured

22The insured raised the issue of IRB entitlement as early as the Response to Unifund’s application. The response to Unifund’s AABS Claim, dated May 18, 2017, set out that no overpayment was owed to Unifund because the insured was still eligible for IRBs and Unifund owed the insured IRBs for the period of June 30, 2015 to September 6, 2016. The issue was raised as the insured’s counter-argument to Unifund. Significantly, the argument was again raised and explained thoroughly in the insured’s submissions for the written hearing. The issue, and the evidence thereof, should have been considered by the Tribunal as an alternative to Unifund’s claim.

23In its decision, the Tribunal addressed Unifund’s argument concerning the repayment. Specifically, it held that the overpayment was $17,200.00 and the notice complied with the Schedule: see paras. 23-25. The Tribunal also dealt with Unifund’s argument concerning interest. It held that Unifund had overpaid the insured and, thus, concluded that interest was payable by the respondent on the overpayment in accordance with s. 56(2) of the Schedule: see para. 26. However, the Tribunal did not deal with the insured’s argument regarding IRBs entitlement and potential set off. It referenced its refusal to adjudicate the argument as follows:

The issue of payment of income replacement benefits owing beyond the July 7, 2015 date, raised by the respondent, is not an issue that the 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: see para. 27.

24In a previous reconsideration decision, the Executive Chair found that the Tribunal erred by not adjudicating a point in dispute that was referenced in submissions but was not listed or framed in the case conference order.¹ The circumstances of this case are not much different.

25The issue of another period of IRBs entitlement was pleaded before the Tribunal as outlined in the hearing submissions and evidence. The Tribunal recognized this in its decision, at para. 21, where it specifically addressed that the insured’s position was that she was owed further IRBs for the period of August 31, 2015 to September 2016 and that the insured wanted to claim set off. This should have been enough to raise a question.

26I disagree with Unifund’s position that just because the IRBs entitlement was an argument or not specifically framed by the Tribunal in the Case Conference Report that it is irrelevant, not formally before the Tribunal, or should not be adjudicated. In my opinion, the issue of overpayment and IRBs entitlement are interrelated and were properly pleaded by the insured as such.

27When I read the issues, as captured by the Case Conference Report, it is not unreasonable to accept that entitlement to IRBs and hence any quantum and set off is captured by the way the issues are framed in the Case Conference Report. The insured’s submissions before the Tribunal were on this exact argument. This is consistent with the insured raising the same position in its response to Unifund’s AABS Claim.² This isn’t an issue that the insured is trying to sneak in the “backdoor” through this reconsideration process.

28In my opinion, the scope of fairness expands beyond the Case Conference Report and requires a hearing adjudicator, who is not bound by a Case Conference Report or Order, to consider and adjudicate issues properly raised by a party that form part of the proceeding. This approach will “ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal”: see 3.1(b) of the Rules. In this case, this means that the Tribunal should have adjudicated the issue of IRBs entitlement and set off because it formed part of the proceeding and did not require the filing of a separate AABS Claim.

29Therefore, the Tribunal is now required to determine the issue of IRBs entitlement and set off, as part of this proceeding.

30With respect to the Tribunal’s determination of overpayment and associated interest, the insured has not convinced me that the Tribunal made any errors in this regard. The parties did not disagree that the insured returned to work on September 6, 2014 and that Unifund continued to pay until July 5, 2017. In her submissions, the insured stated “we do not dispute that an overpayment occurred for the period in which [the insured] made attempts to return to her pre accident employment’. I see no reason to question the Tribunal’s underlying findings.

31Lastly, Unifund asks for costs. It argues that the insured’s late filing of supplementary submissions related to the request for reconsideration involves unreasonable frivolous, vexatious or bad faith conduct. For that reason, Unifund asks that I invoke Rule 19 of the Tribunal’s Rules to award costs against the insured.

32The circumstances of this case do not warrant a costs award. The Tribunal extended the filing date to March 6, 2018 after receiving a letter from the insured explaining the reason for the delay. The Tribunal then received the submissions on March 5, 2018. In my opinion, a two week delay in the filing of submissions is not the type of conduct that warrants an award of costs. I therefore refuse to make any cost order.

Decision

33This request for reconsideration is granted, in part, in accordance with these reasons. The matter is remitted back to the Tribunal to determine the issue of IRBs entitlement and any resulting set off, if any.

D. Stephen Jovanovic Associate Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1See I.P. v. Aviva Canada Insurance, 2018 CanLII 8088 (ON LAT)
2. 2See Applicant Document Brief, Tab 3, Response by Injured Person regarding Insurance Company’s Application for Dispute Resolution, May 18, 2017.