Licence Appeal Tribunal File Number: 21-003837/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:
TD General Insurance Company
Applicant
and
Maxine Dawkins
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Matthew Wasserman, Counsel
For the Respondent: No submissions were made
HEARD: By way of written submissions
OVERVIEW
1Maxine Dawkins (“the Claimant”) claimed that she was involved in an automobile accident on December 27, 2018, and sought benefits from TD General Insurance Company (“TD”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). A dispute over the Claimant’s entitlement to benefits arose and a hearing was held by the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The hearing occurred and the adjudicator determined that, while an accident occurred on December 27, 2018, the Claimant was not a passenger in the vehicle. As a result, the Claimant’s claims for benefits were dismissed by the Tribunal.
3For this hearing, TD claims repayment of the medical and rehabilitation benefits paid to the Claimant, to-date as a result of wilful misrepresentation.
ISSUE
4Is TD entitled to a repayment of medical and rehabilitation benefits in the amount of $3,488.92, plus interest pursuant to section 52(5) of the Schedule?
RESULT
5I find that the TD is entitled to a repayment of medical and rehabilitation benefits in the amount of $3,488.92, plus interest pursuant to section 52(5) of the Schedule.
ANALYSIS
6Section 52(1)(a) of the Schedule permits TD to claim a repayment of any benefit paid to the Claimant as a result of wilful misrepresentation or fraud.
7Section 52(2) of the Schedule provides that TD must give the Claimant notice of the amount that is required to be repaid.
8For TD to be successful in this hearing, it must demonstrate that the Claimant committed an act of wilful misrepresentation and that it properly advised her that it sought a repayment of the benefits paid.
The Claimant committed an act of wilful misrepresentation
9The Claimant was not involved in the subject accident. As noted previously, the Claimant was involved in a prior hearing with the Tribunal, cited as Dawkins v. TD General Insurance Company, 2020 CanLII 103689, and it was determined that she was not a passenger in the vehicle involved in the accident. The adjudicator’s analysis considered transcripts from examinations of the Claimant and the witnesses involved in the accident, as well as the testimony of the Claimant. The Tribunal concluded that the number and nature of inconsistencies were more than just coincidence, and that the Claimant was not involved in the accident. I find the reasoning by the adjudicator to be clear and persuasive and have no reason to interfere with the findings in the decision. Thus, I conclude that the Claimant committed wilful misrepresentation when she intentionally and deliberately misrepresented the facts of her claim and sought entitlement to accident benefits for a collision that she was not involved in, pursuant to s. 53 of the Schedule.
10As a result, I find that the TD has satisfied the first part of the test and demonstrated that the Claimant committed an act of wilful misrepresentation.
TD’s repayment notices are imperfect, but sufficient
11I find that TD has met the second part of the repayment test because it notified the Claimant of the amount that it sought repayment for in correspondence dated March 24 and July 9, 2020.
12In correspondence dated March 24, 2020, TD provided notice to the Claimant that the it sought a repayment of the benefits paid. The notice was sent by registered mail and advised the Claimant that as a result of an investigation of the claim, based on the findings of Examinations Under Oath of other occupants of the vehicle and other evidence, that the Claimant was not involved in the accident. TD terminated the claim and sought a repayment of benefits paid to-date, with reference to section 53 of the Schedule.
13The March 24, 2020 correspondence included a request for repayment of $3,488.92 in medical and rehabilitation benefits and $8,449.45 in expenses, for a total of $11,938.27. TD also advised that the repayment request was made pursuant to section 52 of the Schedule.
14A second letter, dated July 9, 2020, was sent to the Claimant via regular mail. It refers to the letter dated March 24, 2020 and repeats the repayment request.
15In my analysis of the sufficiency of the notice, I must address the TD’s claims for expenses that it is not entitled to recover. Section 52(1)(a) is clear in that the TD is entitled to repayment of a benefit described in the Schedule. The expenses that the TD referred to in the letter are the costs of TD’s insurer’s examinations, which are not benefits and therefore, not recoverable. Thus, TD’s entitlement to a repayment is limited to the value of medical and rehabilitation benefits paid, which totals $3,488.92.
16I find that the TD’s request for the repayment of expenses does not detract from the overall sufficiency of the notice. TD provided the two amounts claimed in it’s notice and outlined that $3,488.92 was requested to repay medical and rehabilitation benefits paid. While it requested an additional $8,449.45 in expenses not covered under section 52, it later withdrew the claim for that amount. Despite this attempt to recover additional expenses that is not permitted by the Schedule, it remains clear that TD requested repayment of the medical and rehabilitation benefits paid.
17I find no evidence demonstrating that the TD’s request for these expenses was made deliberately to mislead the Claimant. However, I acknowledge the potential public policy issue in permitting the TD to rely on a repayment notice that requests an amount for expenses not covered under section 52 of the Schedule. This practice should be discouraged, as these types of requests contravene the consumer protection mandate of the Schedule. However, in this case TD mitigated the issue by limiting its submissions to the amounts paid in medical and rehabilitation benefits and not other expenses. Further, the Claimant made no responding submissions with regard to the repayment request for medical and rehabilitation benefits paid.
The Claimant is deemed to have received the repayment request
18Pursuant to section 64(1) of the Schedule, a notice must be in writing. Pursuant to section 64(2)(d)(ii) a notice may be delivered by ordinary or registered mail to the last known address of the Claimant. Pursuant to section 64(18), a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the document is mailed (in the absence of any evidence to the contrary).
19Here, TD sent the repayment request via registered and regular mail within the timelines provided and pursuant to the notice provisions in section 64 of the Schedule. The Claimant has chosen not to participate in the hearing and has not refuted any of the TD’s submissions and evidence. Given there is no evidence to the contrary, I conclude that the Claimant received the requests for repayment.
INTEREST
20Interest applies to the overdue repayment of benefits, pursuant to section 52(5) of the Schedule. Having concluded that the TD is entitled to a repayment of benefits in the amount of $3,488.92, it follows that it is entitled to interest is payable pursuant to the bank rate as per in sections 52(5) and 52(6) of the Schedule.
CONCLUSION AND ORDER
21I find that the Claimant committed wilful misrepresentation when she falsely claimed to be in an accident. As a result, TD is permitted to seek a repayment of the benefits paid. I find that its repayment request is compliant with the Schedule and make the following order:
22The Claimant shall repay TD the amount of $3,488.92, plus interest pursuant to section 52(5) of the Schedule.
Released: April 18, 2023
Brian Norris Adjudicator