Travelers Insurance Company of Canada v. Matich, 2021 CanLII 50789

Citation: Travelers Insurance Company of Canada v. Matich, 2021 ONLAT 19-008573/AABS

Release date: 06/10/2021

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:

Travelers Insurance Company of Canada

Applicant

and

Joan Matich

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Travelers Insurance Company of Canada, Applicant Christopher McCormack, Counsel

For the Respondent: Joan Matich

Court Reporter: Guido Riccioni

HEARD by Videoconference: February 12, 2021

OVERVIEW

1The respondent, Joan Matich, was injured in an automobile accident on July 17, 2016 and sought benefits from the applicant, Travelers, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). Joan Matich was paid certain benefits by Travelers, specifically income replacement benefits (“IRBs”). Travelers determined an overpayment of benefits was made and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for repayment of benefits.

ISSUES IN DISPUTE

2The issues to be decided are as follows:

a. Is Travelers entitled to a repayment of IRBs in the amount of $25,771.43 paid to Joan Matich from July 24, 2016 to October 28, 2017?

b. Is Travelers entitled to interest on any overdue payment of benefits?

FINDING

3Travelers is entitled to a repayment of IRBs pursuant to s. 52 of the Schedule in the amount of $25,771.43, plus applicable interest calculated from November 24, 2017, as a result of the overpayment.

BACKGROUND

4The matter was scheduled for a case conference in February 2020 and Joan Matich did not attend. A second case conference was scheduled for November 19, 2020, at which Joan Matich also failed to appear.

5Joan Matich has also failed to appear at the hearing, therefore, I rely solely on the evidence put forth by Travelers.

ANALYSIS

6Section 52 of the Schedule regulates 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) set out timelines for repayment requests if an insured is liable to repay any 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 Joan Matich did not attend or provide any submissions or a defence, the burden is on Travelers to prove that the IRB was paid as a result of an error, wilful misrepresentation or fraud on a balance of probabilities. I find that Travelers has demonstrated that it has satisfied all of the requirements under s. 52 to justify repayment of the benefit.

8Travelers notified Joan Matich that she was eligible to receive an IRB in a letter dated August 4, 2016. Prior to paying the IRB, Travelers sent a letter dated September 28, 2016 notifying Joan Matich that it required further employment information in order to confirm and calculate her rate of entitlement to the IRB, pursuant to s. 33. A third letter dated October 6, 2016 acknowledged receipt of previously requested employment and income tax documents and provided J.M with confirmation of her entitlement to an IRB. The October 2016 letter also set out the calculation of the IRB rate and notified Joan Matich that a cheque in the amount of $4,800.00 for the period of July 24, 2016 to October 15, 2016 would be issued. In addition, the letter stated that going forward, bi-weekly payments in the amount of $800.00 (the initial cheque covering the period of October 16, 2016 to October 29, 2016) would be issued.

9Travelers relies on a statement from Joan Matich’s supervisor, A.A. at CBI Health Group. In an email dated May 10, 2018, A.A. confirmed to Travelers that Joan Matich was “off work from July 18, 2016 to August 3, 2016, returning to work on August 4, 2016 and continued to work till date.”

10I find that Joan Matich wilfully misrepresented her employment status for the following reasons. First, during the Examination Under Oath on September 13, 2017, she confirmed that she had not returned to work after the accident. Second, in the s. 44 reports, Joan Matich indicated to the assessors that she had not returned to work. Lastly, in the surveillance reports dated January 19, and May 23, 2017, Joan Matich was observed on January 12-15, 2017 and May 8, 12, 15-16, 2017 working at multiple private residences in her work scrubs.

11I find that the uncontroverted evidence establishes that Travelers paid Joan Matich an IRB during a period when she had returned to work and had failed to notify Travelers of same. Joan Matich has not filed submissions or evidence to dispute this position despite numerous attempts by the Tribunal to allow for her participation. As such, I find that Travelers has shown that it met the requirements of s. 52(1)(a) and that it acted accordingly upon receiving information that Joan Matich returned to work and was no longer entitled to an IRB.

12Additionally, pursuant to s. 52(2) and (3), I find that Travelers’ notice of request satisfies the timeline criteria to support its claim for repayment. Travelers provided Joan Matich with its notice of request for repayment in a letter dated November 9, 2017. I find this notice was provided within the 12-month period prescribed by s. 52(2), but that the 12-month timeline is irrelevant given my finding of wilful misrepresentation.

13The November 9, 2017 notice provided to Joan Matich states the type of benefit paid (IRB), the amount of repayment, $26,400.00 (revised at the hearing to be $25,771.43) and the reason for the notice of repayment (wilful misrepresentation regarding her post-accident return to employment). Accordingly, I find that Travelers has demonstrated that it has met the requirements for notice under s. 52.

14Sections 52(5) and (6) regulates when an insurer may claim 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 the repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice is given. Consequently, as I find that Travelers is entitled to repayment of IRBs paid as a result of wilful misrepresentation under s. 52, it may seek interest on overdue amounts under s. 52(5), calculated from November 24, 2017, as it provided notice on November 9, 2017.

ORDER

15Travelers is entitled to repayment of the IRB in the amount of $25,771.43 pursuant to s. 52. Interest is payable, calculated from November 24, 2017, due to Joan Matich’s wilful misrepresentation, being her failure to notify Travelers of her return to work on August 4, 2016.

Footnotes

1. 1O. Reg. 34/10.