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:
TD General Insurance Company
Applicant
and
Abbas Altaweel
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Michelle Hatzikonstadinou
For the Respondent:
No submissions provided
HEARD:
Via written submissions
OVERVIEW
1A.A., the respondent in this matter, was involved in an accident on June 12, 2017, and sought benefits from the applicant, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). An examination under oath (“EUO”) was scheduled in order to determine A.A.’s entitlement to the benefits claimed.
2On June 19, 2018, the EUO was conducted at Network Reporting and Mediation (“Network”). Following the EUO, Network issued an invoice dated August 20, 2018 to TD in the amount of $1,114.60, which was received by TD on January 14, 2019. In the course of issuing payment to Network, TD accidently deposited $1,114.60 into A.A.’s bank account on January 21, 2019. The funds cleared.
3On January 24, 2019, TD recognized its payment error and issued payment in the same amount directly to Network. On January 25, 2019, TD notified A.A. of its error via letter and indicated that it would be seeking recovery of the overpayment in accordance with s. 52 of the Schedule.
4TD has made five requests for repayment since. A.A. has not responded. TD then filed an application with the Tribunal seeking repayment due to its deposit error. A case conference and a resumption were held. A.A. did not attend. Accordingly, a written hearing was set down in his absence and notice was provided to A.A.’s address on file with the Tribunal. A.A. did not provide submissions or a defence to TD’s application.
ISSUES IN DISPUTE
5The sole issue in dispute is as follows:
i. Is the insurer entitled to a repayment in the amount of $1,114.60, made in error by the insurer by direct deposit into the insured’s account?
RESULT
6TD is entitled to repayment in the amount of $1,114.60, plus applicable interest, under s. 52 as a result of the direct deposit error.
ANALYSIS
Section 52
7Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer,” the insured person or any other person, or as a result of wilful misrepresentation or fraud. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.
8TD has the burden of proving that the benefits were paid to A.A. as a result of an error on a balance of probabilities. I find that TD has demonstrated that it meets all of the requirements under s. 52 to justify repayment of funds. On the evidence, I find the funds were meant to be directed to Network for the EUO invoice and were clearly deposited to A.A. in error, that TD quickly noticed its error and took appropriate steps to recoup the funds thereafter. First, I find TD has demonstrated that it paid $1,114.60 “to the person” under s. 52(1)(a). TD provided the Tribunal with a screenshot of an electronic money transfer dated January 21, 2019. The name of the account holder is A.A. and all of his account details are provided on the transaction log.
9Second, I find the notice sent to A.A. by TD on January 25, 2019 indicates that payment in the amount of $1,114.60 was paid to him in error and that the funds deposited into his account were supposed to be directed to Network for the EUO. I agree with TD that the error is further evidenced by the fact that the amount of the overpayment to A.A. is the exact amount of the invoice from Network for the EUO, being $1,114.60, that it remitted on January 24, 2019 and that is in evidence before the Tribunal. Accordingly, I find it clear that payment was made as a result of “error on the part of the insurer.”
10Third, pursuant to s. 52(2) and (3), I find TD’s notice of request for repayment meets the timeline criteria to support its claim. As noted, TD sent the notice of repayment due to error to A.A. on January 25, 2019, only four days after the error was made, and therefore well within the 12-month period s. 52(3) mandates. I find the immediacy of TD’s payment to Network and its notice to A.A. is clear and compelling evidence of genuine error on its part. Further, on review, the notice sent to A.A. meets the criteria outlined in s. 52(2)(a), as it clearly states the type of benefit paid, the payment period for which payment is sought and the amount of repayment sought.
11TD seeks interest on the repayment. Sections 52(5) and (6) provide guidance on when an insurer may recover interest when seeking repayment. The insurer may charge interest on the outstanding balance of the amount to be repaid for the period starting on the 15th day after the notice is given and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice is given. Section 52(6) indicates that “bank rate” means 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 Schedule I to the Bank Act (Canada). Accordingly, as I find TD is entitled to a repayment of amounts paid to A.A. in error under s. 52, it follows that interest is payable on any overdue amounts beginning the first day after the 15th day following TD’s proper notice to A.A. of the error.
12In submissions, TD also sought a costs order against A.A. under Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, alleging he has acted unreasonably in failing to acknowledge or respond to five separate and timely repayment requests where payment was clearly made in error and for failing to attend two case conferences. Although A.A.’s behaviour is understandably frustrating to TD, I decline to order costs, as the behaviour did not actually interfere with the Tribunal’s ability to carry out a fair and efficient hearing on this matter.
ORDER
13TD is entitled to repayment in the amount of $1,114.60, plus applicable interest, as a result of the direct deposit error.
Released: October 1, 2020
Jesse A. Boyce
Adjudicator