Licence Appeal Tribunal File Number: 20-004572/AABS
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:
Dominion of Canada General Insurance Company (Travelers)
Applicant
and
Sahro Mohamed
Respondent
DECISION
ADJUDICATOR:
Jeffrey Shapiro
APPEARANCES:
For the Applicant:
Christopher McCormack, Counsel
For the Respondent:
Self-Represented (Did not appear)
HEARD:
By way of written submissions
BACKGROUND
1The Dominion of Canada General Insurance Company (Travelers) (“Dominion”) applied to this Tribunal seeking an order requiring Sahro Mohamed (“Mohamed”) to repay an overpayment of income replacement benefits (“IRBs”). The IRBs were originally paid by Dominion to Mohamed pursuant to the Schedule1, arising out of an April 22, 2016 automobile accident. Mohamed has not responded to Dominion’s submissions or otherwise participated in the written hearing. As set forth below, I find that Dominion has established that at all relevant times, Mohamed willfully misrepresented that she was not employed and earning income during the period she collected the IRB, despite that she was employed. Accordingly, I order the repayment as requested by Dominion.
ISSUES
2The issues I must decide are:
Is Dominion entitled to a repayment of an income replacement benefit in the amount of $327.21 per week (totaling $6,381.09) from April 29, 2016 to December 22, 2016?
Is Dominion entitled to interest on any overdue payment of benefits?
ResULT
3Mohamed is ordered to repay Dominion $6,381.09 in overpaid IRBs (corresponding to the period of April 29, 2016 to December 22, 2016), forthwith, plus interest at the “bank rate” from 15 days after the initial repayment request was made on September 3, 2019, pursuant to s. 52 of the Schedule.
Analysis
Can the Tribunal proceed in this matter in absence of Mohamed’s submissions?
4Yes. While Mohamed has not filed any submissions, s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S.22, provides that a tribunal may proceed in a party’s absence if notice of the hearing was given.
5I am satisfied that Mohamed had ample notice of the hearing and chose not to make any submissions. For instance, I am satisfied that the notice of written hearing complies with the requirements of s. 6(4) of the Statutory Powers Procedure Act. Moreover, Mohamed retained counsel for this matter who entered his appearance and appeared at the case conference when the hearing was first set, although counsel subsequently withdrew. Mohamed appeared at the last case conference held in response to her counsel’s withdrawal. That case conference order shows that she requested, and was granted, an extension to the submission schedule due to her counsel withdrawing and the new date and submission schedule were set during the conference. In addition to the new dates being provided, a copy of the order was emailed to her at the last address on file. The Tribunal forwarded various notices and email reminders to her, and has also attempted to reach her by phone, without success.
Is Dominion entitled to a repayment?
6Yes. Section 52 of the Schedule regulates the repayment of benefits and covers many different situations. As is relevant here, it provides that a person must repay an IRB to an insurer if it was “paid to the person…as the result of wilful misrepresentation or fraud”, or “to the extent of any payments received…that are deductible under the Regulation”.2 In simple terms, that second clause means that if after paying the IRB, the insurer learns that it was entitled to deduct certain amounts from the IRB, it can claim the amount that was overpaid.
7Section 52 also provides that an insurer must provide notice of the repayment, and it is only entitled to a repayment for amounts paid going back 12 months from the notice of repayment, “unless it was originally paid to the person as a result of wilful misrepresentation or fraud.”
8In this matter, while Dominion’s submissions leave little doubt that the entire IRB was paid as a result of willful misrepresentation, Dominion only seeks reimbursement of the amount of the IRB that was overpaid as a result of willfully failing to disclose post-accident income that could have been deducted from the IRB paid. I will not address each piece of evidence but address the key points.
9In short, the accident occurred on April 22, 2016. Mohamed then sought an IRB relating to the accident, signing a formal Application for Benefits (OCF-1) on May 16, 2016. She represented that she had not worked since the accident. Dominion approved the IRB and paid her an IRB totaling $11,031.68 from April 29, 2016 to December 22, 2016, until it terminated the IRB in December 2016 based, in part, on the opinions of s. 44 assessors.
10While Mohamed did disclose that the day of the accident, April 22, 2016, was scheduled to be her last day of work, she did not disclose that she began new employment several days later, on April 25, 2016, as a bus driver, despite being required to do so. In that new position, she worked under a series of contracts until November 16, 2017. Under s. 7(3) of the Schedule, Dominion was entitled to deduct 70% of the new income from the regular IRB payment – but since it was not aware, it could not deduct it. Had the deduction occurred, the correct IRB payment would be $4,650.59, rather then the $11,031.68 IRB paid, leaving an overpayment of $6,381.09 to which the Dominion is entitled.3
11Dominion only discovered Mohamed’s post-accident employment history and overpayment of IRBs in 2019, following receipt of documents produced in relation to a different application to this Tribunal by Mohamed (LAT file no. 18-011297), which was subsequently withdrawn. Dominion then issued a series of overpayment notices starting on September 3, 2019, setting forth the request for the overpayment relating to April 2016 to December 2016.4
12While Dominion’s repayment request seeks a repayment relating to periods more than 12 months prior to the first request letter, it is allowed do so under s. 52 because Dominion has established the payments were “originally paid to the person as a result of wilful misrepresentation or fraud.” As Dominion points out, despite starting the new employment days after the accident, Mohamed never disclosed the new employment or income, while claiming she was unable to work. In fact, in her OCF-1, OCF-3, and reports to s. 44 assessors, she denied that she continued to work after the accident, despite that she clearly was employed. The evidence overwhelming establishes that there was a misrepresentation, and it was intentional.
ORDER
13Mohamed is ordered to repay Dominion $6,381.09 for an overpayment of IRBs (corresponding to the period of April 29, 2016 to December 22, 2016), forthwith, plus interest at the “bank rate” from 15 days after the initial repayment request was made on September 3, 2019, pursuant to s. 52 of the Schedule. The application is allowed.
Released: November 8, 2022
Jeffrey Shapiro
Vice-Chair
Footnotes
- Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
- Sections 51(1)(a) and (c).
- See Applicant’s Tab 15.
- See Applicant’s Tabs 16-19.