Aviva Insurance Company of Canada v. Michelle Phillip, 2024 CanLII 10540

21-014062/AABS

Licence Appeal Tribunal File Number: 21-014062/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 Company of Canada

Applicant

and

Michelle Phillip

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Karanveer Padda, Counsel

For the Respondent: No Submissions Filed

HEARD: By way of written submissions

OVERVIEW

1Michelle Phillip (the “respondent”) was involved in an automobile accident on March 15, 2017 and sought benefits from Aviva Insurance Company of Canada (“the applicant”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant paid income replacement benefits (“IRB”) to the respondent following the accident. However, the applicant claims that IRB overpayments were made due to wilful misrepresentation by the respondent regarding her employment status. Therefore, the applicant requests that the respondent repay this IRB.

3As the respondent did not respond to requests to repay these benefits, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

4The issues in dispute are:

1. Is the applicant (insurer) entitled to a repayment of $990.02 ($1,190.02 less $200.00 repaid) relating to its payment of an income replacement benefit (“IRB”) for the period of March 4, 2019 to June 28, 2019?

2. Is the applicant entitled to interest on the above alleged repayment?

RESULT

5I find that the applicant is entitled to an IRB repayment in the amount of $990.02 due to wilful misrepresentation, pursuant to s. 52(1)(a) of the Schedule. Interest is also payable on this amount, pursuant to ss. 52(5) and 52(6).

ANALYSIS

Proceeding in the Absence of One of the Parties

6I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing in the absence of the respondent.

7Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.

8It is clear that the respondent knew of this written hearing and chose not to participate. She participated in a case conference on October 24, 2022 that resulted in a Case Conference Report and Order (“CCRO”) released December 7, 2022 that set this matter down for a videoconference hearing dated May 16, 2023 (later changed to a written hearing as a result of a Notice of Motion filed by the applicant on March 17, 2023).

9In addition, the applicant adduced a Minutes of Settlement agreement signed by the respondent on January 10, 2023 that indicates that she was fully aware of the IRB overpayment issue and that a Tribunal hearing had been scheduled.

10On March 27, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the written hearing date for November 10, 2023. This NoWH included the provision that the Tribunal may make a decision without the participation of one or both parties if submissions are not filed.

11There is no indication in Tribunal records that the respondent filed submissions and evidence for the written hearing. There is also no indication in Tribunal records that the respondent contacted the Tribunal to request an extension of hearing submission deadlines.

12Also, although I am prepared to provide added latitude for self-represented parties when navigating Tribunal processes, in my view the applicant had sufficient time to either prepare to address this matter on her own or to seek out new legal counsel. Tribunal records indicate that the respondent acknowledged that she would be proceeding as a self-represented party as of October 31, 2022, over one year before the written hearing date set for November 10, 2023.

13Further, despite the change to self-represented status, there is no indication that the respondent’s contact information changed or was otherwise incorrect in Tribunal records. If the respondent’s mailing address, email address, and/or phone number differed from what was originally provided to the Tribunal, she had an obligation under Rule 4.4 of this Tribunal’s Rules to provide the correct information.

14The applicant filed its submissions with the Tribunal on October 11, 2023.

15Given the above, I am satisfied that the respondent received notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA, and that there were no communication issues between the respondent and the Tribunal.

16For the above reasons, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

IRB Repayment

17The applicant is permitted to claim a repayment of IRB and other benefits in certain situations and subject to certain conditions as established by the Schedule.

18Section 52(1)(a) of the Schedule provides that an insured person is liable to repay an insurer any benefit paid as a result of wilful misrepresentation or fraud.

19Section 52(2) of the Schedule provides that the applicant must give the respondent notice of the amount that is required to be repaid. Section 52(3) limits the applicant’s repayment claim to 12 months from the notice described in s. 52(2) unless the overpayment is due to wilful misrepresentation or fraud.

Notice of repayment request satisfied

20I find that the applicant has satisfied the repayment notice requirements as specified in the Schedule.

21As indicated above, s. 52(2) of the Schedule provides that the applicant must give the respondent notice of any amount required to be repaid.

22In submissions, the applicant provided copies of notices sent to the respondent and her former legal representative on July 18, 2019 and December 4, 2019 that noted the alleged overpayment of IRB in the amount of $1,190.02 from March 4, 2019 to June 28, 2019. The applicant also provided a copy of a notice sent to the respondent on July 2, 2020 thanking her for a repayment of $200.00 and advising her that the balance owing was $990.02.

23As the respondent has failed to participate in this proceeding, there is no evidence before me to refute the applicant’s argument and evidence.

24Accordingly, I accept the submissions of the applicant. The applicant provided repayment notification within 12 months of the alleged overpayment, sufficient to meet ss. 52(2) and 53(3) of the Schedule.

IRB repayment ordered

25I find that the applicant is entitled to $990.02 in repayment of the IRB that was paid to the respondent from March 4, 2019 to June 28, 2019 due to wilful misrepresentation, pursuant to s. 52(1)(a) of the Schedule. Interest is applicable in accordance with ss. 52(5) and 52(6).

26In submissions, the applicant takes the position that IRB was overpaid as a result of the respondent starting a new job without informing the insurer. The applicant submits that this constitutes wilful misrepresentation. It relies on a number of past Tribunal decisions regarding the test that should be applied for wilful misrepresentation, including Aviva Canada v. S.A., 2016 CanLII 96164 (ON LAT); Certas Direct v. T.T., 2017 CanLII 87539 (ON LAT); and Aviva Insurance Company of Canada v. Saunders, 2022 CanLII 8666 (ON LAT). Essentially, the applicant argues that these examples demonstrate that silence has been determined by the Tribunal to constitute wilful misrepresentation.

27I agree with the applicant, which has thoroughly substantiated its position regarding IRB overpayment.

28First, the applicant has provided an email dated July 17, 2019 from the legal firm representing the respondent at that time. This correspondence confirmed that the respondent had started new employment as of March 4, 2019. The respondent’s pay stubs were included as an attachment to this email, documenting that she had received $7,703.25 in earnings from this new job between March 4, 2019 and June 28, 2019, a period of time during which she was still receiving IRB payments from the applicant.

29As a result of the above, the applicant determined that it had overpaid a total of $1,190.02 in IRB to the respondent during the period of time in question.

30In the absence of any submissions from the respondent, I accept the applicant’s recounting of events. I also agree with the applicant’s argument that the respondent’s silence regarding her return to work on March 4, 2019 constitutes wilful misrepresentation. I find the three Tribunal decisions referenced by the applicant to be relevant here as the circumstances are similar in those matters.

31Second, the applicant has demonstrated that the respondent has not contested that IRB overpayment was made and that repayment was owed. The applicant noted in its submissions that the respondent paid $200.00 of the IRB amount owing at some point prior to the repayment reminder notice sent on July 2, 2020, indicating that she accepted that repayment was warranted. Also, as mentioned above, the applicant adduced a Minutes of Settlement agreement signed by the respondent on January 10, 2023 that committed the respondent to repaying the remaining $990.02 in IRB overpayment in monthly instalments running from July 2023 to April 2024.

32Given this conclusive documentation and the lack of submissions by the respondent, I accept the applicant’s position that the respondent never challenged that IRB overpayment was made and repayment was due.

33Accordingly, the respondent is liable to pay $990.02 to the applicant due to IRB overpayment, plus interest.

ORDER

34The respondent is ordered to repay IRB to the applicant in the amount of $990.02 due to wilful misrepresentation, pursuant to ss. 52(1)(a) of the Schedule, plus interest pursuant to ss. 52(5) and 52(6).