Released: March 5, 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:
Unica Insurance Inc.
Applicant
and
Balkisoen Girwall
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Angela Comella, Counsel
For the Respondent:
Self-Represented
HEARD:
by way of written submissions
OVERVIEW
1Balkisoen Girwall, the respondent in this matter, was involved in an automobile accident on July 4, 2017, and sought an income replacement benefit (“IRB”) from the applicant, Unica, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Unica paid the respondent weekly IRBs from July 11, 2017 to January 12, 2018, totalling $10,428.55.
2This matter involves a request for repayment by Unica for the total amount of IRBs paid, plus interest, pursuant to s. 52 of the Schedule. Unica submits that the respondent failed to notify it of his return to work shortly after the accident, resulting in an overpayment of IRBs.
3The respondent has failed to attend case conferences and resumptions scheduled to allow for his participation. Despite efforts by the Tribunal to contact him, the respondent did not participate in the final case conference that took place on January 21, 2020, where this written hearing was set down. A 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. Unica provided its submissions and evidence in a timely manner. Despite attempts by the Tribunal to reach the respondent to determine if he intended to participate, no submissions were filed.
ISSUE IN DISPUTE
4The issue in dispute is as follows:
a. Is Unica entitled to repayment of IRBs in the amount of $10,428.55, plus interest, from July 4, 2017 to January 12, 2018?
RESULT
5Unica is entitled to a repayment of IRBs in the amount of $10,428.55, plus interest, due to the respondent’s failure to notify it of his 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, Unica 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 Unica has demonstrated that it meets all of the requirements under s. 52 to justify repayment2 based on the respondent’s return to work following the accident.
8Unica first notified the respondent of his eligibility for IRB via letter dated September 21, 2017. The notice letter indicated that it was the respondent’s responsibility to notify Unica should he return to his pre-accident employment or any form of employment. Unica then began paying IRBs in the amount of $400 per week based on the respondent’s OCF-2 dated July 25, 2017. IRB payments continued until January 2018, which were confirmed via screen shots from Unica’s electronic log in and payment system.
9On December 19, 2017, Unica requested an updated OCF-3 but never received one from the respondent. Instead, on January 23, 2018, Unica’s adjuster, Ms. Taylo, spoke to the respondent’s employer via telephone, learning that the respondent had actually returned to his pre-accident employment on full-time hours and duties as of July 13, 2017. This was confirmed via Ms. Taylo’s affidavit and the adjuster’s log notes in evidence and has not been refuted
10Unica then sent a letter to the respondent dated January 23, 2018 advising him that as a result of his return to work on July 13, 2017, which was confirmed by his employer, that he was no longer eligible for an IRB and that the benefit payments would be discontinued effective January 12, 2018. The letter indicated that as a result of the respondent’s failure to notify Unica of his return to work, that Unica had overpaid IRBs to him in the amount of $10,428.55 and that, pursuant to s. 52, it was seeking repayment, with interest.
11Accordingly, I find the evidence indicates that Unica paid the respondent an IRB during a period when he had already returned to work but had failed to notify Unica. The respondent did not provide evidence to dispute this. As a result, I find Unica 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 as a result of his return to employment.
12Further, pursuant to s. 52(2) and (3), I find Unica’s notice of request for repayment meets the timeline criteria to support its claim. Unica provided notice of its intention to seek repayment first on January 23, 2018 and then again on April 9, 2018, May 18, 2018, June 18, 2018, July 18, 2018, August 27, 2018 and May 1, 2019. I find these notices were provided within the 12-month period prescribed by s. 52(2).
13On 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 (July 11, 2017 to January 12, 2018) and the amount of repayment sought ($10,428.55, being the amount in dispute).3 The notices indicate that interest under s. 52(5) would apply and information necessary for the respondent to dispute the repayment request was provided. I find Unica complied with all of the procedural requirements for a s. 52 repayment request.
14Sections 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 Unica 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 February 7, 2018, as notice was first provided on January 23, 2018.
ORDER
15Pursuant to s. 52, Unica is entitled to IRB repayment in the amount of $10,428.55, plus interest calculated from February 7, 2018, due to the respondent’s failure to notify it of his return to work on July 13, 2017.
Date of Issue: March 5, 2021
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- See, Michalowski v. St. Paul Fire and Marine Insurance Company, (FSCO A98-001492, July 9, 1999).
- See, Intact Insurance v. Marianyagam, 2016 ONSC 1479, at 45.