Licence Appeal Tribunal File Number: 21-005781/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:
Certas Direct Insurance Company
Applicant
and
Rizalina Borja
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Stacey N Karellas, Counsel
For the Respondent:
No submissions were filed
HEARD:
By way of written submissions
OVERVIEW
1Rizalina Borja, the respondent, was involved in an automobile accident on April 17, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent applied for and received income replacement benefits (“IRBs”) from Certas Direct Insurance Company (“Certas”). Certas claims to have overpaid IRBs to the respondent and now claims a repayment of the benefits paid. Certas has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
3A case conference was held on July 15, 2022, but the respondent did not attend. A written hearing was scheduled at that time. The respondent did not file any submissions or evidence for the written hearing.
ISSES
4According to the Case Conference Report and Order dated August 9, 2022 (“CCRO”) the issues in dispute are:
i. Is the applicant entitled to reimbursement of IRBs previously paid to the respondent for the period of April 25, 2019 to September 10, 2020, with notice of intent to seek reimbursement sent to the respondent on October 27, 2020 and May 7, 2021?
ii. What is the quantum of IRBs to be reimbursed to the applicant?
iii. Did the respondent willfully misrepresent their income for the purposes of IRBs?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Pursuant to s. 52 of the Schedule, Certas is entitled to repayment of the IRBs in the amount of $13,947.79 as a result of the respondent’s willful misrepresentation. Interest is payable in accordance with s. 52 of the Schedule.
ANALYSIS
Background and Parties’ Positions
6After the April 17, 2019 accident, the respondent applied for and received IRBs in the amount of $400.00 per week, from April 25, 2019 onward. On August 22, 2019 Certas received correspondence from the respondent’s former legal representative Mr. Lam, indicating that the respondent had returned to work as an oral surgeon assistant on July 15, 2019 and that IRBs should be halted. By way of subsequent correspondence, Mr. Lam advised that the respondent had stopped working again on September 26, 2019 and requested that IRBs be reinstated. Certas reinstated IRBs effective September 27, 2019 and continued to pay IRBs until September 10, 2020.
7Certas submits that the respondent willfully misrepresented her post-accident employment during the period that she was receiving IRBs. Although the respondent reported returning to work only between July 15, 2019 and September 26, 2019, Certas contends that the respondent had actually returned to work prior to this, and subsequently had at least three more periods of employment that she failed to report. It submits that the respondent admitted in an Examination Under Oath (“EUO”) on October 9, 2020 that she had at least four different employers since the accident, while she was receiving IRBs from Certas.
8Certas provided two notices of repayment to the respondent. The first notice dated October 27, 2020 requested the repayment of the full amount of IRBs paid to date, being $23,988.57. The second notice of repayment dated May 7, 2021 adjusted the amount claimed to $13,947.79 to take into account the employment documentation it had received, and to account for duplicative payments.
9Certas had requested the respondent’s employment files from Dr. Fok, Markham-Stouffville Smile Centre, North Hill Dental and Shin Dentistry, along with Income Tax Returns, including notices of