Unifund Assurance Co. v. M.D.C., 2020 CanLII 94799

Citation: Unifund Assurance Co. vs. M.D.C., 2020 ONLAT 19-010729/AABS

Released Date: 11/04/2020

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:

Unifund Assurance Company

Applicant

and

M.D.C.

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Alexander Woo, Counsel

For the Respondent: No submissions

HEARD: By way of written submissions

OVERVIEW

1M.D.C., the respondent in this matter, was involved in an accident on October 24, 2017 and sought various benefits from the applicant, Unifund, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ ("Schedule").

2M.D.C. received treatment under the Minor Injury Guideline ("MIG") and then submitted a claim for an Income Replacement Benefit ("IRB"). His initial application to the Tribunal was for removal from the MIG, a medical benefit, his costs, an award and interest. However, after his counsel got off the record, M.D.C. failed to attend multiple case conferences, failed to provide direction on whether he would be pursuing his claim or seeking new counsel and did not provide any submissions despite multiple opportunities to do so.

3Unifund successfully motioned to have an IRB repayment claim in the amount of $4,431.14 added to the issues in dispute on the basis that M.D.C. had failed to advise it of his subsequent return to work, resulting in Unifund overpaying the IRB. M.D.C. was also put on notice of the Tribunal's intention to dismiss his application without a hearing pursuant to Rule 3.4 of the Common Rules of Practice and Procedure if he did not attend the next case conference.

4The applicant failed to attend or respond to any of the attempts to contact him. Accordingly, the Tribunal determined that he had abandoned his claim and dismissed his application without a hearing. Unifund maintained its position that it was entitled to a repayment of the overpaid IRB and a written hearing was set down in M.D.C.'s absence. He did not provide submissions.

ISSUES IN DISPUTE

5According to the Case Conference Order dated April 30, 2020, the sole issue in dispute is as follows:

i. Is Unifund entitled to a repayment of an IRB in the amount $4,431.14 paid to M.D.C. for the period December 4, 2017 to March 9, 2018?

RESULT

6Pursuant to s. 52, Unifund is entitled to repayment of the IRB in the amount of $4,431.14 as a result of M.D.C.'s wilful misrepresentation.

ANALYSIS

Section 52

7Section 52 of the Schedule governs 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 within 12 months after the payment of the amount that is to be repaid unless it was originally paid to the person as a result of wilful misrepresentation or fraud. Unifund has the burden of proving that the benefits were paid to M.D.C. on a balance of probabilities.

Wilful Misrepresentation

8I agree with Unifund that, on the evidence, M.D.C. wilfully misrepresented his return-to-work status for purposes of claiming IRB. The Tribunal has defined "misrepresentation" 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." The Tribunal has also held that "silence or a failure to report" can constitute wilful misrepresentation.²

9To this end, Unifund contacted Ms. Thavaratnam, a Payroll/HR Specialist with M.D.C.'s employer, ("BHS"), who completed his Employer's Confirmation Form (OCF-2) dated November 7, 2017 to support his IRB claim. On March 21, 2018, Ms. Thavaratnam confirmed to Unifund that M.D.C. had actually returned to full-time work duties as of December 4, 2017 and was laid off on March 3, 2018. However, subsequent to his return to work at BHS, he had submitted an Election of Income Replacement, Non-Earner or Caregiver Benefit ("OCF-10") on December 10, 2017 confirming his election to claim IRBs. Unifund submits that at no time did M.D.C. advise it of this return to full-time work activities, as he is required to, despite his receipt of $6,058.90 in IRBs—including a lump-sum payment of past IRBs in the amount of $2,260.78 on December 12, 2017—and subsequent bi-weekly payments of $633.02.

10On the facts, I find that not only did M.D.C. fail to notify Unifund that he had returned to full-time duties as required, but he knowingly submitted his OCF-10 form electing IRBs after he had already returned to work. In my view, and in the absence of submissions from M.D.C. proving the contrary, it is difficult to find how M.D.C.'s conduct, subsequent silence and ultimate refusal to participate in the dispute resolution process, does not amount "to an assertion not in accordance with the facts." That is, M.D.C. made his initial claim for and continued to receive payment of IRBs from Unifund while he was working full-time and therefore not entitled to the benefit. He maintained his silence. This is clear wilful misrepresentation.

11Further, I agree with Unifund that M.D.C.'s failure to produce any employment-related information or rebut Ms. Thavaratnam's claim is confirmation that he had returned to full-time work activities as of December 4, 2017. The Tribunal therefore draws an adverse inference against M.D.C. for his misrepresentation on his OCF-10 form, for his failure to attend multiple case conferences and his failure to dispute Unifund's claims as evidence against him. Under 52(1)(a), a person is liable to repay to the insurer any benefit that is "paid to the person" as a result of wilful misrepresentation, provided proper notice is given.

Unifund's Notices

12I find Unifund's notice of request for repayment also meets the timeline criteria to support its claim. Unifund first issued payment of IRB on December 12, 2017. It then provided notice to M.D.C. of its intention to seek repayment of the overpaid IRBs on March 21, 2018, which is well within the 12-month period to provide notice as prescribed by s. 52(3). On review, the notice sent to M.D.C. meets the criteria outlined in s. 52(2), as it states the type of benefit paid (IRB), the payment period for which repayment is sought (December 4, 2017 to March 9 2018) and the amount of repayment sought ($4,431.14, being the amount in dispute).³ Accordingly, I find Unifund's notices complied with all of the procedural requirements for a s. 52 repayment request.

ORDER

13Unifund is entitled to a repayment under s. 52 in the amount of $4,431.14 as a result of IRB overpayment made on the basis of wilful misrepresentation.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 217-000272 v T.T., 2017 CanLII 87539 (ON LAT) at paras. 21-22.
3. 3See, Unica Insurance Inc. v K.B., 2020 CanLII 35550 (ON LAT), at para. 32.