Security National Insurance Company v. Lilowtie Balgobin, 2021 CanLII 18916

20-003118/AABS

Released Date: 02/25/2021

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:

Security National Insurance Company

Applicant

and

Lilowtie Balgobin

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Derek Vihvelin, Counsel

For the Respondent:

Self-Represented

HEARD:

Via Written Submissions

OVERVIEW

1Lilowtie Balgobin, the respondent in this matter, was involved in an automobile accident on January 8, 2018, and sought an income replacement benefit (“IRB”) from the applicant, Security National, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2This matter involves a request for IRB repayment by Security National. The respondent has failed to attend case conferences and resumptions scheduled to allow for her participation. The final case conference took place on September 23, 2020. Despite further efforts by the Tribunal to contact her, the respondent did not participate. The case conference proceeded in her absence and a written hearing was set down.

3A notice of written hearing was provided to the parties and mailed to the respondent’s address on file. The notice outlined the hearing date and the deadlines for the parties’ submissions on the sole issue in dispute. Security National provided its submissions and evidence in a timely manner. Despite attempts by the Tribunal and by Security National to reach the respondent to determine if she intended to participate, no submissions were filed.

ISSUE IN DISPUTE

4The issue in dispute is as follows:

a. Is Security National entitled to a repayment of an IRB in the amount of $3,257.14 for the period from February 20, 2018 to April 17, 2018?

RESULT

5Security National is entitled to a repayment of IRB in the amount of $3,257.14, plus interest, due to the respondent’s failure to notify it of her return to work.

ANALYSIS

Section 52

6Section 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.

7While the respondent did not provide written submissions or a defence, Security National has the burden of proving that the IRB was paid as a result of an error, wilful misrepresentation or fraud on a balance of probabilities. I find that Security National has demonstrated that it meets all of the requirements under s. 52 to justify repayment.²

8Security National notified the respondent of her eligibility for IRB via letter dated January 23, 2018. The notice letter also contained a reference to s. 52 notifying the respondent that she may be liable for repayment if the IRB is paid in error. After it began paying IRB, Security National sent a letter dated April 3, 2018, advising the respondent (and including her counsel) that she had not complied with its s. 33 requests for more information and that her IRB would be suspended on April 17, 2018 if she did not provide the information requested.

9An OCF-3 dated March 8, 2018 indicated that the respondent had returned to work six weeks post-accident on gradual duties. Security National followed up with the respondent’s employer, [ERV], which confirmed that the respondent had returned to work on February 20, 2018. The correspondence indicates that the respondent confirmed her return to work in February 2018. Security National then sent a letter dated May 10, 2018 stating that there was an overpayment due to her return, and it requested paystubs from January 2018 to present in order to calculate the amount for repayment. Security National then sent another letter dated July 9, 2018 stating that it was entitled to an IRB repayment in the amount of $3,257.14, representing overpaid amounts for the period February 20, 2018 to April 17, 2018. Security National sent follow-up letters dated April 18, 2019 and July 12, 2019 reiterating its position.

10Accordingly, I find the uncontroverted evidence indicates that Security National paid the respondent an IRB during a period when she had already returned to work but had failed to notify Security National of same. As a result, I find Security National has demonstrated that it meets the requirements of s. 52(1)(a) and that it acted diligently on receipt of information that the respondent was no longer entitled to the IRB claimed.

11Further, pursuant to s. 52(2) and (3), I find its notice of request for repayment meets the timeline criteria to support its claim. Security National provided provisional notice of its intention to seek repayment first on May 10, 2018 and then again on July 9, 2018 after receiving confirmation from [ERV] that the respondent had returned to work on February 20, 2018. I find these notices were provided within the 12-month period prescribed by s. 52(2).

12On review, the notices sent to the respondent also meet the criteria outlined in s. 52(3), as they clearly state the type of benefit paid (IRB), the payment period for which payment is sought (being February 20, 2018 to April 17, 2018) and the amount of repayment sought ($3,257.14, being the amount in dispute).³ The July 9, 2018 notice provided the respondent with the calculations made, showing that the sum of $5,257.14 had been paid out in IRB for the period from January 16, 2018 to April 17, 2018, when the respondent’s entitlement to IRB ceased with her return to work on February 20, 2018. The notice explained that this resulted in an overpayment of IRB in the amount of $3,257.14. I find Security National easily complied with all of the procedural requirements for a s. 52 repayment request.

13Sections 52(5) and (6) provide guidance on when an insurer may recover interest on 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. Accordingly, as I find Security National is entitled to repayment of IRB paid as a result of overpayment under s. 52, it follows that it may seek interest on overdue amounts under s. 52(5), calculated from July 24, 2018, as notice was provided July 9, 2018.

ORDER

14Pursuant to s. 52, Security National is entitled to IRB repayment in the amount of $3,257.14, plus interest calculated from July 24, 2018, due to the respondent’s failure to notify of it of her return to work on February 20, 2018.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, Michalowski v. St. Paul Fire and Marine Insurance Company, (FSCO A98-001492, July 9, 1999).
3. 3See, Intact Insurance v. Marianyagam, 2016 ONSC 1479, at 45.