Aviva Insurance Canada v. Turnbull, 2023 CanLII 13039

Aviva Insurance Canada v. Turnbull

Citation: Aviva Insurance Canada v. Turnbull, 2023 ONLAT 20-006920/AABS

Licence Appeal Tribunal File Number: 20-006920/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:

Aviva Insurance Canada

Applicant

and

Julie Turnbull

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Brittany Tinslay, Counsel

For the Respondent: Self-Represented (Did Not Participate)

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Aviva Insurance Canada (the “applicant”) applied to the Licence Appeal Tribunal (the “Tribunal”) seeking an order requiring Julie Turnbull (the “respondent”) to repay an overpayment of interest on medical benefit treatment plans arising from a motor vehicle accident on October 2, 2014. The treatment plans were originally paid by the applicant to the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), as a result of a Tribunal decision dated November 25, 2019.

2The respondent has not replied to the applicant’s submissions or otherwise participated in this written hearing.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. Is the applicant entitled to a repayment of an overpayment of interest in regard to medical benefit treatment plans in the amount of $1,652.84?
2. Is the applicant entitled to interest on any overpayment of benefits?

RESULT

4I find that:

i. The applicant is entitled to repayment of $1,652.84 for the overpayment of interest. ii. The applicant is entitled to interest on this overpayment at the bank rate from 15 days after the formal repayment request was made on January 22, 2020.

ANALYSIS

Have Notice Requirements Been Met and Can this Matter Proceed in the Absence of the Respondent?

5I am satisfied that notice was provided to the respondent for this hearing pursuant to the requirements of s. 6(4) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

6I am also satisfied that notice was provided to the respondent of the overpayment and request for repayment pursuant to s. 52(3) of the Schedule, which requires such notification to be issued within 12 months of the overpayment, if the overpayment was made in error. The applicant first provided notice to the respondent on January 14, 2020, just over a month after the overpayment was issued on December 10, 2019. The applicant sent additional correspondence both to the respondent’s counsel as well as directly to the respondent on January 20, 2020 and January 22, 2020 that explained the nature of the overpayment and requested repayment. The respondent’s counsel notified the Tribunal on January 23, 2022 that he was no longer retained in this matter.

7The respondent also participated in the case conference on May 13, 2021 when this written hearing was scheduled for February 7, 2022. The Tribunal sent further correspondence to the respondent, advising her of the hearing date and informing her that she had missed the deadline for her written submissions. The Tribunal also notified the respondent with regard to a motion on April 5, 2022, where the applicant sought an extension to the deadline for the respondent to provide written submissions for this hearing. The respondent did not attend this hearing; the applicant withdrew the motion.

8For the above reasons, I find that all notice requirements have been met. I am proceeding pursuant to s. 7(2) of the Statutory Powers Procedure Act, which allows a tribunal to proceed without a party’s participation.

Is the Applicant Entitled to a Repayment?

9On the facts, I find that the applicant has established that an overpayment was made with respect to the interest owing on treatment plans deemed reasonable and necessary in a Tribunal decision dated November 25, 2019.

10The applicant submits that it made an error in the calculation of interest owing with regard to the value of treatment plans ordered paid by Tribunal decision. According to an email from the insurer to the applicant’s former counsel dated January 14, 2020, the insurer paid $3,313.44 to the applicant on December 10, 2019. This was followed by an email from the insurer to the applicant’s former counsel on January 20, 2020, advising that an overpayment of $1,653.18 was made due to an interest rate error made in this calculation.

11Aviva further fulfilled the notice requirements of s. 52(3) by sending a letter directly to the respondent on January 22, 2020, less than two months after the alleged overpayment was made. This correspondence advised her of an overpayment of $1,652.84 and requested repayment of this amount pursuant to the provisions of s. 52 of the Schedule. It included a chart showing interest calculations on treatment plans along with the relevant section of the Schedule.

12There is no evidence that the respondent disputes that this overpayment was made. A letter from the respondent’s counsel dated February 6, 2020 notes that the revised interest calculation of the insurer “appears to be reasonable.” The amount noted here is slightly different from the value used by the insurer, at $1,656.26, but it is clear that this letter refers to the same issue. (I also accept the applicant’s final figure of $1,652.84 as the precise amount in dispute, as this is the number cited in the correspondence formally requesting repayment that was sent on January 22, 2020.)

13As a result of the above, I find that the applicant is entitled to a repayment of $1,652.84. The applicant has satisfied the provisions of the Schedule with regard to requesting repayment and providing sufficient, timely notification to the respondent within 12 months of the overpayment.

Is the Applicant Entitled to Interest?

14As I find that the applicant is entitled to a repayment of its overpayment of interest for treatment plans, it follows that interest is payable on the overdue amount of $1,652.84.

15In accordance with the provisions of s. 52(5) and (6) of the Schedule, I find that the applicant is entitled to interest at the bank rate from 15 days after the initial repayment request was made on January 22, 2020.

ORDER

16I find that:

i. The respondent is ordered to repay the applicant $1,652.84 for the overpayment of interest. ii. The respondent is ordered to pay interest at the bank rate from 15 days after the initial repayment request was made on January 22, 2020, pursuant to s. 52(5) and (6) of the Schedule.