Licence Appeal Tribunal File Number: 22-012851/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:
Primmum Insurance Company
Applicant
and
Melissa Theriault
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Noura Bagh, Counsel
For the Respondent: Melissa Theriault, Respondent (No submissions were filed)
HEARD: By Way Of Written Submissions
OVERVIEW
1Melissa Theriault, the respondent, was involved in an automobile accident on May 25, 2021, and sought benefits from Primmum Insurance Company, the applicant, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant paid certain benefits, including an Income Replacement Benefit (“IRB”) in the amount of $742.84 for the period of June 1, 2021 to July 27, 2021 to the respondent. The applicant now seeks the repayment of the IRB under s. 52(1)(b) of the Schedule.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a repayment of $742.84 ($2,742.84 less $2,000.00 repaid) relating to its payment of IRB for the period of June 1, 2021 to July 27, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to repayment from the respondent for the IRBs in the amount of $742.84, plus appliable interest.
ANALYSIS
Proceeding with a hearing in the absence of the respondent
4As outlined below, I find that the Tribunal has met its reasonable notice obligations regarding the hearing. Therefore, the written hearing proceeded in the absence of any written submissions filed by the respondent.
5Proceeding 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 sections 6(1) and 6(4) of the SPPA.
6On July 14, 2023, the Tribunal held a case conference, and the respondent did not attend or file a case conference summary. The Tribunal proceeded with the case conference in the respondent’s absence and set the matter down for a written hearing as documented in the Case Conference Report and Order (“CCRO”) dated July 17, 2023. The CCRO was emailed to the parties the same day.
7On July 20, 2023, the Tribunal emailed a notice of written hearing to the parties indicating that a written hearing would take place on March 28, 2024. The applicant’s submissions were due February 27, 2024, and the respondent’s submissions were due March 14, 2024.
8The applicant’s submissions were filed on February 27, 2024 in compliance with the CCRO. The respondent did not file any submissions.
9There is no evidence that the respondent’s contact information changed during the course of this process or was otherwise incorrect in the Tribunal’s records. The parties are obligated to notify the Tribunal of any changes to their contact information pursuant to Rule 4.4.
10The respondent has not brought a motion seeking to extend the submission deadlines or contacted the Tribunal with respect to this hearing. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
11I am satisfied that the Tribunal has met its notice obligations pursuant to s. 7(2) of the SPPA and complied with sections 6(1) and 6(4) of the SPPA. Accordingly, I proceeded with this hearing without written submissions from the respondent.
IRB Repayment
12I find that the applicant is entitled to an IRB repayment in the amount of $742.84 ($2,742.84 less $2,000.00 repaid) due to the respondent’s return to work on June 28, 2021.
13Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person shall repay to the insurer any benefit that is paid as a result of an error on the part of the insurer, the insured person, or any other person, or as a result of willful misrepresentation or fraud. Subsection 52(1)(c) of the Schedule provides that an insured shall repay for the insurer any IRBs to the extent of any payments received by the insured that are deductible from those benefits under this regulation. If a person is required to repay an amount to an insurer under s. 52, the insurer shall give notice of the amount that is required to be repaid within 12 months after the payment of the amount that is to be repaid.
14The applicant submits that the respondent claimed that she was off work following the accident that took place on May 25, 2021. The applicant therefore paid the respondent $1,855.71 for the period covering June 1, 2021 to July 3, 2021. The applicant then made bi-weekly IRB payments to the respondent in the amount of $800.00 on June 30, July 2, and July 16, 2021.
15The applicant submits that on July 27, 2021, the respondent advised by voicemail that she had returned to work on June 28, 2021. On that same date, the applicant sent correspondence to the respondent indicating that she was no longer eligible for IRBs on the basis that she had returned to her pre-accident employment, and that a notice of overpayment had been issued.
16The applicant submits that on October 21, 2021, it sent a letter to the respondent’s legal representative advising that there were six days of IRB overpayment from the $1,855.71 paid, as well as subsequent cheques in the amount of $800.00 each released June 30, July 2, and July 16, 2021. The total amount of repayment sought by the applicant was $2,472.84.
17The applicant argues that on October 29, 2021, the respondent’s representative at the time requested, by telephone, that the respondent make a payment in the amount of $2,000.00 via bank draft and forward the remaining amount two weeks later. The applicant agreed to this request and the respondent subsequently delivered payment.
18On February 18 and May 17, 2022, the applicant submits that it made follow-up telephone calls and sent notice letters to the respondent’s representative regarding the outstanding overpayment balance of $742.84 but received no response. The applicant followed up again by letter correspondence on August 17, 2022. That same day, the respondent’s representative advised the applicant by letter that they were no longer acting on behalf of the respondent.
19The applicant argues that the respondent reached out by email on November 25, 2023, after receiving the Tribunal application, advising that she had been under the impression that the full payment amount had already been repaid. She offered to make a payment for the outstanding balance by credit card or e-transfer. According to the applicant, the respondent was advised that such forms of payment could not accepted. There has been no communication from the respondent since that time.
20Based on the undisputed evidence presented, the respondent returned to work on June 28, 2021 and acknowledged the applicant’s IRB overpayment for which she partially repaid $2,000.00 in November 2021. On November 25, 2023, the applicant sought to repay the remaining overpayment balance of $742.84 but did not follow through with that payment after being advised that credit card or e-transfer payments could not be accepted.
21I find that the applicant is entitled to the remaining IRB repayment balance of $742.84. The applicant’s notice letter complies with the relevant section 52 criteria by identifying that the IRB was overpaid, the time period for which the IRB repayment was being sought, the amount of the repayment being sought, and the notice itself was sent well within the 12-month notice period.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the overdue repayment.
ORDER
23Pursuant to s. 52 of the Schedule, the applicant is entitled to repayment for the IRBs paid in the amount of $742.84, plus applicable interest.
Released: November 13, 2024
Tyler Moore
Vice-Chair