Citation: Lewis v. Economical Insurance Company, 2023 ONLAT 20-010403/AABS

Licence Appeal Tribunal File Number: 20-010403/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:

Rashedy Lewis

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Mitchell J. Barber, Counsel

Fawad Siddiqui, Counsel

For the Respondent:

Jason Frost, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

1Rashedy Lewis (the “applicant”) was involved in a motor vehicle accident on November 1, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical Insurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied four treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the request of the respondent, and in accordance with a Tribunal Motion Order dated October 18, 2021, the repayment of income replacement benefits (“IRB”) was added to the list of issues in dispute.

PRELIMINARY ISSUE

3The following preliminary issue is in dispute:

Should an IRB repayment letter from the respondent dated October 1, 2021 be accepted into evidence and included in the document brief accompanying the respondent’s written submissions dated April 18, 2022?

SUBSTANTIVE ISSUES IN DISPUTE

4The following substantive issues are in dispute:

Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
Is the applicant entitled to $1,964.10 for physiotherapy services, recommended by Healthmax Physiotherapy Clinic in a treatment plan/OCF-18 dated November 28, 2018?
Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Dr. Ricardo J. Harris, psychologist, in a treatment plan/OCF-18 dated March 18, 2019?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
Is the respondent entitled to a repayment of the IRB paid to the applicant (from November 9, 2017 to May 13, 2019) in the amount of $16,931.56, with interest at the bank rate pursuant to s. 52 of the Schedule?

5Both of the treatment plans in dispute propose treatment for impairments that are not predominantly minor as referred to in the MIG. As a result, the applicant must be found to be outside of the MIG to be entitled to these plans—unless the respondent has contravened the Schedule in such a fashion as to warrant approval on a procedural basis.

RESULT

6With respect to the preliminary issue, I find that:

i. The IRB repayment letter dated October 1, 2021 shall be included in the respondent’s document brief, along with the respondent’s full written submissions on this issue in dispute.

7With respect to the substantive issues, I find that:

i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is entitled to the treatment plan in the amount of $1,964.10 for physiotherapy services dated November 28, 2018, as the respondent has acted in contravention of s. 38(8) of the Schedule. He is also entitled to interest, pursuant to s. 51 of the Schedule.

iii. The applicant is not entitled to the treatment plan in the amount of $2,200.00 for a psychological assessment dated March 18, 2019, as the applicant remains within the MIG. He is also not entitled to interest.

iv. The respondent is not liable to pay an award.

v. The respondent is entitled to a repayment of IRB in the amount of $16,931.56. Interest is to be applied pursuant to s. 52(5) of the Schedule, beginning on the 15^th day following the repayment notice sent October 1, 2021.

ANALYSIS: PRELIMINARY ISSUE

Admissibility of the October 1, 2021 IRB repayment request letter

8I find that the IRB repayment request letter dated October 1, 2021 shall be admitted into evidence as part of the respondent’s document brief. I further decline to omit any of the respondent’s written submissions on the IRB repayment issue.

9Rule 9.4 of the Common Rules of Practice & Procedure of this Tribunal provides that if a party fails to comply with rules, directions, or orders with respect to the disclosure of documents or things, that party may not rely on the document or thing as evidence, without the consent of the Tribunal.

10To summarize this issue:

i. On October 6, 2021, the respondent filed a Notice of Motion requesting the addition of IRB repayment as an issue in dispute along with the removal of the applicant’s claim for entitlement to IRB and rescheduling the previously scheduled videoconference hearing as a written hearing. The applicant consented. The Tribunal confirmed these changes in a Motion Order dated October 18, 2021 that set this matter down for the written hearing now before me.

ii. The respondent omitted from its written submissions for this hearing (submitted on April 18, 2022) a letter from Economical to the applicant dated October 1, 2021 requesting IRB repayment. It subsequently filed a Notice of Motion on May 7, 2022 requesting that this letter be added to its document brief. This request was approved by the Tribunal in a Motion Order dated May 9, 2022.

iii. The applicant filed a Notice of Motion later on May 9, 2022 requesting that this letter be excluded from the submissions of the respondent. This motion was scheduled to be heard at this written hearing.

11The applicant argues that the respondent failing to include this letter in written hearing submissions places the respondent in contravention of the Tribunal Motion Order dated October 18, 2021. Specifically, he takes the position that the respondent failed to adhere to the provisions of paragraph 15 of this order, which mandated that “documents previously filed with the applicant, response, any motions, or for the case conference...be resubmitted for the written hearing.”

12Further, the applicant submits that he has no record of receiving this IRB repayment letter other than when it was included in the Motion Record sent to his legal counsel on October 18, 2021, and that there is no evidence that it was sent directly to him on October 1, 2021, or at all. He also argues that not serving the applicant directly with this letter as part of written submissions for this hearing is a “serious mistake” that should be fatal to the respondent’s request for IRB repayment, and that its admission to the record would result in significant prejudice to the applicant.

13As relief, the applicant requests that the October 1, 2021 letter be excluded from the respondent’s submissions along with the substantive written arguments presented by the respondent on the IRB repayment issue.

14The respondent admits to not including this IRB repayment request letter as part of its document brief for this written hearing, but claims that this was an inadvertent omission. It submits that this letter was served on the applicant on October 1, 2021 and filed with the Tribunal on October 18, 2021. Accordingly, the respondent argues that there was no prejudice to the applicant and that the letter should be included as part of its written submissions.

15I agree with the respondent.

16This matter was previously addressed by the Tribunal in the Motion Order dated May 9, 2022. There is no evidence of a material change in circumstance adduced by the applicant here that would cause me to address this matter in a different manner. The doctrine of res judicata applies, as the Tribunal has previously ruled that the IRB repayment letter was to be included in the respondent’s briefing document for this hearing.

17I concur with the May 9, 2022 Motion Order, at any rate. I agree with the conclusions of Vice-Chair Hunter, who wrote in this order that he saw that no prejudice could be caused to the applicant by the inclusion of the letter, as the applicant had knowledge of the IRB repayment request and had been provided a copy well in advance of the due date for hearing submissions. Also, in his submissions for this Notice of Motion, the applicant admits to receiving this letter as of October 18, 2021 at the latest. That is some six months before the date that the respondent’s written hearing submissions were due. In my view, this length of time constitutes sufficient advance notice about this issue and the repayment request to fully ameliorate any possible prejudice to the applicant caused by the respondent including the letter in its initial hearing submissions.

18Further, the respondent filed a Notice of Motion seeking to add this letter to its submissions on May 6, 2022, within just three weeks of the due date of its written submissions on April 18, 2022. This quick correction of the issue also, in my mind, ameliorates any possible prejudice to the applicant.

19As a result, I choose to provide consent in accordance with Rule 9.4 and allow the addition of the IRB repayment request letter dated October 1, 2021 to the respondent’s briefing document. I further rely on Rule 9.1 here, as I find that this letter is necessary for a full and satisfactory understanding of the issues in this proceeding. For the same reason, I decline to omit the respondent’s written submissions on the IRB repayment issue, and refer to all of these submissions in the process of rendering my decision. Lastly, I rely on Rule 3.1, which allows for a liberal interpretation of the Rules to facilitate a fair, open, and accessible process to allow for the effective participation by all parties.

ANALYSIS: SUBSTANTIVE ISSUES

The Minor Injury Guideline (“MIG”)

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

21An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

22The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.

23In this instance, the applicant submits that his “injuries...are supportive of continued, multidisciplinary medical treatment and [are] not predominantly minor as defined in s. 3 of the Schedule.” Although the applicant does not specifically claim that he suffers from chronic pain as a result of the accident, I infer that this is the basis for his request to be removed from the MIG, as the majority of his submissions focus on consistent upper back and neck pain that persisted to at least December 2020 and also resulted in issues with headaches, dizziness, insomnia, and anxiety. The applicant also alludes to psychological issues possibly warranting removal from the MIG, although his argument largely focuses on physical issues and chronic pain.

24The applicant relies primarily on the clinical notes and records (“CNRs”) of Dr. Rozina Dholasania, family physician; CNRs from Healthmax Physiotherapy Centre; and the treatment plans in dispute.

25The respondent counters that the applicant has failed to provide objective medical evidence demonstrating that his injuries are not minor and cannot be treated within the MIG. It relies mainly on the s. 44 insurer examination (“IE”) reports of two physicians. Dr. Yuri Marchuk, physiatrist, completed two physiatry assessments that resulted in reports dated June 29, 2018 and April 9, 2021. And Dr. Rod Day, psychologist, completed a psychological assessment that led to a report dated April 26, 2019.

The applicant does not warrant treatment outside of the MIG

26I find that the applicant suffered minor injuries as a result of the accident and as a result remains within the MIG.

27The applicant did not submit sufficient evidence to demonstrate that he suffered anything other than soft-tissue injuries as defined by the Schedule as a result of the accident. Although the applicant alludes to suffering from a chronic pain condition, no evidence has been presented showing that he has ever been properly diagnosed with that condition. Dr. Dinna Icatar, chiropractor, noted only sprain and strain of the cervical, thoracic, and lumbar spine in the Disability Certificate/OCF-3 dated December 11, 2017. Granted, Dr. Icatar modified this conclusion with a notation of “other chronic pain” in the November 28, 2018 physiotherapy treatment plan in dispute here. But no objective medical evidence has been presented that would support this chronic pain observation. Also, as has been long held by this Tribunal, treatment plans are insufficient evidence in and of themselves without supporting medical evidence. So, I assign this diagnosis minimal weight.

28The majority of the applicant’s medical evidence consists of the CNRs of his family doctor, Dr. Dholasania. Yet even though the applicant visited her and other family physicians at the One Care Medical Clinic on some two dozen occasions from the day of the accident on November 1, 2017 through June 22, 2021, a significant majority of these appointments were about matters unrelated to the accident and its resulting injuries. Moreover, Dr. Dholasania’s diagnosis at the November 1, 2017 appointment was that the applicant was suffering from “MVA neck and back pain whiplash,” soft-tissue injuries as defined in the Schedule. Dr. Dholasania recommended Tylenol, NSAIDS, ice, and physiotherapy during that same appointment, all of which would be appropriate for the treatment of such minor injuries.

29Further, no evidence has been submitted to show that these issues progressed to chronic pain, let alone chronic pain leading to a functional impairment required to warrant removal from the MIG. Dr. Dholasania did not note chronic pain in her records, did not refer the applicant for diagnostic imaging, and did not prescribe any medication to deal with the pain that the applicant reported experiencing in his neck and back.

30Virtually all of what Dr. Dholasania wrote in her CNRs with regard to the applicant’s physical injuries leads me to believe that the applicant suffered minor, soft-tissue injuries in the accident. While the family physician noted consistently that the applicant complained about upper back and neck pain, she also included comments that indicated the situation was minor in nature.

31For example, Dr. Dholasania wrote after appointments on November 1, 2017, December 20, 2017, January 24, 2018, and February 21, 2018 that there was no radiation of this pain, that the applicant was not experiencing tingling or numbness, that the applicant was not suffering from neck pain or headache, and that the physiotherapists that the applicant was seeing did not recommend x-rays. On March 26, 2018, Dr. Dholasania wrote that the applicant told her that he was “slowly getting better” and that the pain was improving. All of this demonstrates that Dr. Dholasania did not change her initial diagnosis that the applicant sustained whiplash in the accident, which is defined as a minor injury that falls within the MIG.

32I assign significant weight to the IE physiatry reports of Dr. Marchuk. He found that the applicant suffered whiplash and other minor soft-tissue injuries as a result of the accident. Dr. Marchuk also noted that the applicant reported that he was independent with daily living and job demands and was not suffering from a physical functional impairment. He concluded that the applicant could be fully treated within the MIG. Dr. Marchuk’s observations also accorded with those of Dr. Dholasania, adding further to the overall reliability of his report.

33Additionally, there is little evidence to support that the applicant experienced any psychological sequelae as a result of the accident that would warrant his removal from the MIG. Dr. Dholasania noted on May 23, 2018 and August 29. 2018 that the applicant self-reported complaints about dizziness, difficulty sleeping due to recurrent thoughts of the accident, and anxiety. However, I accord these observations little weight, as all that the applicant submits to substantiate claims of psychological issues is the treatment plan dated March 18, 2019. In this treatment plan, Dr. Ricardo Harris, psychologist, recommended a psychological assessment due to symptoms such as pain, preoccupation with stressful events, nervousness, restlessness and agitation, irritability and anger, and unhappiness. As noted above, though, a treatment plan is not sufficient evidence without additional objective medical evidence, which has not been submitted here.

34Also, insufficient evidence has been provided to substantiate that the accident exacerbated any pre-existing psychological conditions. The CNRs of Dr. Dholasania show that the applicant sought assistance from her in appointments on April 21, 2017, April 24, 2017, and May 1, 2017 for anxiety and panic attacks related to starting a new job. Although Dr. Dholasania discussed giving him prescription medication for these issues, there is nothing before me to indicate that these issues continued beyond the spring of 2017, or that they were exacerbated by the accident.

35The only psychological assessment of the applicant was conducted by Dr. Day, who examined the applicant in person on April 11, 2019 and completed his IE report on April 26, 2019. Although the main purpose of this assessment was to review the treatment plan for a psychological assessment in dispute here, I find the conclusions equally relevant to the MIG determination. Dr. Day found no evidence of an accident-related psychological condition and no evidence of additional factors that would prevent the applicant from achieving maximum psychological recovery. Although Dr. Day did not mention the MIG in his report, it is clear that he did not diagnose the applicant with a psychological condition that would warrant his removal from the MIG.

36With that said, I assign somewhat limited weight to Dr. Day’s report. The applicant notes in submissions that Dr. Day failed to review the CNRs of Dr. Dholasania, and therefore missed notations of the applicant’s issues with anxiety and panic attacks in the spring of 2017. I agree with the applicant that this knowledge would have better informed Dr. Day’s report. However, I also agree with the respondent that notations of psychological issues in just three appointments with a family doctor does not constitute proof of a pre-existing psychological impairment that precluded the applicant’s removal from the MIG.

37Further, Dr. Day’s analysis and conclusions were based largely on an in-person clinical interview and testing. So, even though I accept that Dr. Day would have written a more comprehensive report if he had reviewed the CNRs of Dr. Dholasania, I do not believe that Dr. Day’s conclusions would have been changed much, if at all, if he had referenced these appointments. Lastly, it is the applicant’s burden to demonstrate that his injuries fall outside of the MIG. He has not met this burden, at least in my view, and as a result the fact that Dr. Day did not review the CNRs of Dr. Dholasania is somewhat inconsequential.

38For the above reasons, I find that the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

Denials of the Treatment Plans

39As I have found that the applicant remains within the MIG, and as the treatment plans in dispute propose treatment outside of the MIG, it follows that he should not be entitled to these plans, nor interest. However, the applicant submits that the respondent did not provide sufficient notice of the denial of these plans in accordance with s. 38(8) of the Schedule.

40Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives a treatment plan which goods, services, assessments, and/or examinations it agrees to pay for and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

41Failure to comply with s. 38(8) triggers s. 38(11). Section 38(11)1 states that an insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies. Section 38(11)2 holds that an insurer “shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).”

The applicant is entitled to the physiotherapy treatment plan in the amount of $1,964.10 dated November 28, 2018

42I find that the respondent has acted in contravention of s. 38(8) of the Schedule and failed to provide a proper denial of this treatment plan for physiotherapy services. The applicant is entitled to the full amount of this treatment plan, plus interest in accordance with s. 51 of the Schedule.

43The applicant submits that the denial letter sent by Economical on March 26, 2019 (although the plan was dated November 28, 2018, it was not submitted to the insurer until March 25, 2019) was insufficient and confusing enough to contravene s. 38(8). He notes that the letter referred to the IE report of a “Dr. Alice Kam, physiatrist,” who determined that the applicant sustained minor injuries and had full range of motion in his cervical spine and shoulders, and therefore should remain within the MIG. In truth, the actual IE report was authored by Dr. Marchuk, who found that the applicant should remain in the MIG, but that he suffered whiplash associated disorder (“WAD 2”) in the accident along with cervicothoracic bilateral shoulder myofascial dysfunction and lumbar musculoligamentous dysfunction. Neither report was included with the denial letter sent to the applicant on March 26, 2019.

44The respondent counters by asserting that its denial letter meets the requirements of s. 38(8) of the Schedule. It admits to making an error with the letter by citing Dr. Kam in place of Dr. Marchuk (based on correspondence provided by the respondent, Dr. Kam had been originally scheduled to perform an IE of the applicant, but the applicant declined to attend), but claims that the notice was still correct because it cited the same rationale for the denial of the plan—that the applicant suffered soft-tissue injuries in the accident and should be held within the MIG. The respondent also notes that the Dr. Marchuk IE report had been sent to the applicant on July 12, 2018, so he should not have been confused by the “typo” that resulted in Dr. Kam’s name being mentioned in the denial letter.

45I agree with the applicant that the notice provided by Economical about the denial of this treatment plan was insufficient. It named the wrong doctor and the wrong injuries. This was enough to confuse the applicant, even if the letter did get it right in citing a MIG determination as the reason for the denial. Also, even though the correct IE report of Dr. Marchuk was sent to the applicant nearly a year earlier, it was sent attached to the denial of another treatment plan, one that is not before me here. Expecting an applicant to assume that one denial letter and accompanying IE report should relate to another issue entirely is, in my view, not reasonable, and does not meet the standard required by s. 38(8) of the Schedule that requires an insurer to list “the medical reasons and all of the other reasons” for the denial of a treatment plan, in whole or in part.

46No evidence has been adduced demonstrating that any amount of this treatment plan has been incurred. Nor has any evidence been provided to show that the respondent ever cured this deficient notice. As a result, I rely on Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, a Divisional Court decision that found an insurer is required to pay for treatment not properly denied in accordance with s. 38(8) and where that deficient notice was not subsequently rectified—even when that treatment had not been incurred.

47Suarez can be distinguished from the Divisional Court decision of Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000, where the court held that treatment must be incurred in cases where a deficient notice was subsequently corrected by a proper notice. In such situations, only those goods and services that are incurred by the applicant during a shall-pay period between the issuing of the deficient notice and the issuing of the corrected notice are payable by an insurer. Here, as the insurer did not rectify its deficient notice, I find that the Divisional Court’s reasoning in Suarez is applicable, as opposed to the reasoning in Catic.

48Correspondingly, the applicant is entitled to the full amount of the treatment plan dated November 28, 2018, plus interest in accordance with s. 51 of the Schedule.

The applicant is not entitled to the psychological assessment treatment plan in the amount of $2,200.00 dated March 18, 2019

49I find that the respondent has fulfilled the requirements of s. 38(8) in its denial of this treatment plan for a psychological assessment. The applicant is therefore not entitled to this plan, nor interest, as he has been found within the MIG.

50The applicant submits that the denial letter sent on May 9, 2019 was improper as it was based on the IE report of Dr. Day, dated April 26, 2019, which failed to address his pre-existing psychological issues. Although the applicant does not specifically state that he is objecting to this denial in accordance with s. 38(8), his arguments again focus on “an improper denial” and refer to specifics in the Dr. Day IE report that I have already addressed in a more fulsome manner above in assessing the MIG determination issue.

51The respondent does not refer directly in its submissions to the improper denial allegation. Instead, it focuses on the report of Dr. Day and maintains that his conclusions were fully founded even without reference to any possible pre-existing psychological issues. Again, as I have discussed the specifics of this issue above, I will not repeat myself here.

52There is no evidence that the respondent failed to meet its notice obligations under the Schedule for the denial of this treatment plan. A review of the letter dated May 9, 2019 shows that it refers to the specific findings of Dr. Day, whose IE assessment of the applicant was arranged to assess the appropriateness of this treatment plan. Although the applicant has contested the validity of Dr. Day’s report, and how he came to the conclusions expressed therein, this does not constitute an improper denial. Section 38(8) of the Schedule mandates that notice include “the medical reasons and all of the other reasons” for a denial, not that such a notice must be fully comprehensive and eventually determined to be accurate by the Tribunal. In short, the applicant is essentially making arguments here that would be more appropriate for submissions regarding the reasonable and necessary nature of this treatment plan, not for sufficient notice of its denial.

53For the above reasons, the respondent has fulfilled its denial notice obligations in the Schedule. The applicant remains is not entitled to the treatment plan dated March 18, 2019, nor interest, as he remains within the MIG.

Award

54I find that the respondent is not liable to pay an award.

55Section 10 of O. Reg. 664 allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which an insured person is entitled plus interest as applicable if it is found that the insurer behaved in a manner that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, and as a result unreasonably withheld benefits.

56The applicant submits that he is due an award as the insurer’s ongoing denial of the treatment plans in question has been unreasonable and not in compliance with its consumer protection obligations under the Schedule. Specifically, he cites that payment of the treatment plans has been delayed more than three years, demonstrating that Economical has not acted in good faith. The applicant requests an award of 50 per cent of the amount of the two treatment plans in dispute, plus interest in accordance with the Schedule.

57The respondent denies any misconduct and submits that the applicant has not provided particulars for its special award claim as required by s. 8 of the Statutory Powers Procedure Act. As it held the applicant within the MIG and denies that the treatment plans are reasonable and necessary, it holds that it did not delay the payment of any benefits, and therefore should not be liable to pay an award. The respondent further cites that the applicant “unreasonably refused to attend” some s. 44 IE assessments, and provides correspondence to demonstrate this fact.

58Although I do find that the respondent contravened s. 38(8) in its denial of one treatment plan, I do not find that such conduct rises to the level where an award would be appropriate in this case. While the denial did not meet the standard for such a notice required by the Schedule, it was a mistake on the part of the insurer, not the sort of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct that I would deem to warrant an award.

59Accordingly, and for the reasons described above, the respondent is not liable to pay an award.

IRB Repayment

60Section 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 described in the Schedule that was paid as a result of an error on the part of the insurer, the insured person or any other person, or as the result of wilful misrepresentation or fraud.

61Sections 52(2) and 52(3) provide details and timelines about how a request for repayment must be made. Of particular note here, s. 52(3) mandates that an insurer must provide notice of the repayment request and the amount that is to be repaid within 12 months after the payment of the amount that is to be repaid, unless it was originally paid as a result of wilful misrepresentation or fraud.

62The respondent submits that it paid $20,085.93 in IRB to the applicant due to wilful misrepresentation. It argues that the applicant had already returned to his employment as a realtor by the time that he made its application for IRB, and that the applicant admitted this to both IE assessors and in testimony in an Examination Under Oath (“EUO”). Further, the respondent claims that the applicant did not disclose at the time of the IRB claim additional self-employment and associated income from a sub-leasing business he owned/operated, Kingston 6 Restaurant.

63The insurer retained Davis Martindale Chartered Professional Accountants to provide an IRB calculation in early 2018. Davis Martindale made requests for employment information from the applicant in accordance with s. 33 of the Schedule on a monthly basis in the spring and summer of 2018, from April 17 to August 15. These requests included confirmation of the date that the applicant returned to his employment as a realtor, Canada Revenue Agency (“CRA”) tax returns from 2016 and 2017, lists of his transactions completed as a realtor including the amount of revenue earned through commissions, and details regarding any other employment or self-employment income.

64The respondent claims that the applicant did not respond to these requests and Davis Martindale closed this file as of August 15, 2018. Economical ended IRB entitlement due to the applicant’s non-compliance with its s. 33 requests as of May 13, 2019.

65Davis Martindale prepared two IRB reports, both with and without information from the applicant. The first, dated April 23, 2021, indicated that $20,085.93 was payable in IRB from the period between November 9, 2017 and May 13, 2019. Payment of this amount was made in a lump sum on April 26/27, 2021 (submissions note both dates). However, the second report, dated September 27, 2021, was based on updated financial income provided by the applicant. This report concluded that the IRB entitlement for the same period of time was actually $3,154.37. Accordingly, in a letter dated October 1, 2017, Economical requested repayment of the difference of $16,931.56 plus interest ($20,085.93 less the accurate IRB payment of $3,154.37), in accordance with s. 52 of the Schedule.

66In reply submissions, the applicant submits that the respondent has not met the burden of proving wilful misrepresentation or fraud as defined by the Schedule. He further notes that the IRB payment of $20,085.93 was made pursuant to the respondent’s own accounting report completed by Davis Martindale based on the CRA tax returns of the applicant from 2014-2019, and that the accounting firm was aware of the applicant’s attempt to return to work.

67The applicant further argues that the respondent’s accusations arise from the applicant’s testimony at the August 25, 2021 EUO, four months after the IRB lump sum payment was made on April 27, 2021. Also, he notes that there is no evidence of any misrepresentation between the IRB stoppage date on May 13, 2019 and the lump sum payment of the IRB on April 26/27, 2019. As a result, he submits that the applicant was at no point misled into providing IRB, that this IRB was calculated by a hired accountant using objective source material, and that the respondent is basing its claim for repayment on “bald allegations and speculative information presented as fact.”

68Below, I assess the positions of both parties with regard to what I find to be the three key issues in the IRB repayment matter.

The applicant returned to work during the IRB period claimed

69I find that the applicant returned to work no later than December 2017, and likely as early as the end of November 2017, within a few weeks of the accident.

70The timeline of events indicates that the applicant returned to work as a realtor well before filing the documents in support of his IRB claim.

71Following the accident on November 1, 2017, the applicant filed an Application for Accident Benefits/OCF-1 dated November 3, 2017. This OCF-1 indicated he was substantially unable to perform the tasks of his employment as a realtor and therefore met the requirement for entitlement to pre-104-week IRB according to s. 5(1) of the Schedule. The applicant subsequently elected IRB on an Election of Income Replacement, Non-Earner or Caregiver Benefit/OCF-10 dated November 28, 2017. He then submitted an OCF-3 dated December 11, 2017 on January 16, 2018 that noted he could not “do as many showings as a realtor” and that he had also been employed as a customer service representative at Hydro One, but had not been working due to a medical leave of absence unrelated to the accident. The OCF-3 also indicated that the applicant suffered the complete inability to carry on a normal life as a result of the accident, a disability anticipated to last 9-12 weeks.

72However, it seems that the applicant was working at the time that he claimed IRB. He reported to both IE assessors during examinations that took place in 2018, 2019, and 2021 that he returned to work shortly after the accident.

73The applicant told Dr. Marchuk during a physiatry IE assessment on June 29, 2018 (which resulted in a July 11, 2018 report) that he returned to realtor work on modified hours as of mid-November 2017, but that he required some assistance as pain resulting from the accident restricted the number of home showings that he could perform. The applicant made similar comments to Dr. Marchuk at a second physiatry IE conducted on April 9, 2021 (which resulted in an April 23, 2021 report), again noting that he was on modified duties, working part-time on days and weekend, and was still not showing as many homes post-accident as he was before the accident. Additionally, the applicant informed Dr. Day at his psychological IE assessment on April 11, 2019 (which resulted in an April 26, 2019 report) that he returned to his work as a real estate agent “about one or two months after the accident,” and that back pain interfered with his ability to show houses initially, but that the pain “diminished over time” and that he worked “continuously through 2018 and 2019” as a realtor.

74The applicant further commented on the return-to-work issue in the EUO on August 25, 2021, although I assign his answers little evidentiary weight as he was vague on a specific return date. The applicant said twice that he did not remember when he returned to work as a realtor post-accident, only saying that he was off work “about three to six months” when pressed a third time to provide even a rough estimate. This conflicts with what he reported to the assessors, so I have difficulty accepting this as an accurate response.

75No objective evidence was submitted detailing how the applicant’s work duties were modified post-accident, or how these modified duties impacted on his sales, as I would expect if he was showing fewer homes as claimed. According to the April 23, 2021 Davis Martindale report (based on 2016-2019 CRA tax returns), the applicant’s commissions totaled $31,910.00 in 2017 and $28,156.00 in 2018, which in my view does not substantiate that his work activities were curtailed much, or even at all. These commissions dropped significantly in 2019 to $11,365.00. By this point, however, the applicant seems to have gone fully back to work given his comments to Dr. Day on April 11, 2019, so I do not find this decline relevant to the IRB matter.

76In short, the applicant’s own comments as well as the evidence of his sales commissions speak for themselves. As a result, I conclude that the applicant returned to work no later than December 31, 2017, but likely as early as November 30, 2017.

The applicant failed to disclose additional self-employment and income

77I find that the applicant did not disclose that he was operating Kingston 6 Restaurant Corporation Inc. at the time he made his IRB claim.

78During the EUO on August 25, 2021, the applicant testified that he was operating Kingston 6 Restaurant Corporation—what he described as a “short-term rental business” where he would rent properties via companies like AirBnB and then sub-let them for day-to-day rentals—before and after the accident to “about 2019.” He said that he was earning income of an estimated $50.00 per day from this business, or between $15,000.00 and $20,000.00 annually.

79Despite this admission, much remains unanswered about Kingston 6 Restaurant Corporation. While a 2017 T2 CRA corporate tax return was produced showing income of $60,282.00, no file was produced for 2018 or 2019. The applicant’s counsel sent correspondence requesting these tax files to Tax Partners, the company that handed these returns, on three occasions from July-September 2021, but no response was received. The applicant places the onus for this failure on the respondent in its reply submissions, but I reject this for two reasons. First, it is the applicant’s burden to prove that he meets the pre-104 IRB test in the Schedule, and this includes substantiating claims as needed with documentation such as tax returns. Second, based on the applicant’s testimony at the EUO, he appears to own Kingston 6 Restaurant in whole or in part. So, I fail to understand the difficulties in producing these tax returns.

80Regardless, it is clear to me that the existence of Kingston 6 Restaurant Corporation was not mentioned to Economical prior to the EUO, and that the applicant was self-employed by this company and earning income post-accident in at least 2018 and 2019. Correspondingly, I conclude that the applicant did not properly disclose the existence of this company, nor the income that he was earning from it during the time period he received IRB.

The respondent is entitled to IRB repayment of $16,931.56, plus interest

81For the reasons noted above, I find that the respondent is entitled to a repayment of IRB in the amount of $16,931.56 as requested in the letter from Economical (a sum arrived at by the Davis Martindale report dated September 27, 2021, which concluded that $3,154.37 was the actual amount of IRB owing, against the paid amount of $20,085.93) to the applicant dated October 1, 2021. Interest is to be applied pursuant to s. 52(5) of the Schedule, beginning on the 15^th day following this notice.

82The applicant’s return to work as a realtor demonstrates that he does not meet the disability test for IRB, despite his submissions. His comments to IE assessors, along with his testimony at the EUO regarding a vague return-to-work date, indicate that he resumed his employment as a real estate salesperson shortly following the accident. He was also self-employed as the owner/operator of Kingston 6 Restaurant Corporation following the accident, as noted above.

83I do not accept the applicant’s explanations for his failure to notify Economical about either his return to the realtor position or about Kingston 6 Restaurant Corporation. His claim that no misrepresentation was made between the IRB stoppage date on May 13, 2019 and the bulk payment of the IRB on April 26/27, 2019 is disingenuous. An IRB claim is fluid and involves ongoing entitlement to the benefit by week and by quantum. The fact that the IRB was paid in one lump sum of $20,085.93 is not important, as this figure was arrived at by calculating the weekly entitlement from November 9, 2017 to May 13, 2019—a period of time during which the applicant had gone back to work as a realtor and was self-employed with the as-yet-unacknowledged Kingston 6 Restaurant Corporation, yet did not make Economical aware of either fact.

84In all, this speaks to wilful misrepresentation. As a result, the respondent is entitled to a repayment of the full requested amount of $16,931.56 ($20,085.93 less $3,154.37, as determined by the Davis Martindale report dated September 27, 2021), plus interest.

ORDER

85I find that: