Citation: TD General Insurance Company v. Clarke, 2024 ONLAT 22-010547/AABS

Licence Appeal Tribunal File Number: 22-010547/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

Alexandra Clarke

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Amit Kwatra, Counsel

For the Respondent: Camille Narine-Ramrattan, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Alexandra Clarke, the respondent, was involved in an automobile accident on July 23, 2021, and sought an income replacement benefit (“IRB”) from the applicant, TD General Insurance Company (“TD”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent submitted an OCF-2 form on October 14, 2021 confirming that she worked as a Registered Practical Nurse for Markhaven Incorporated and last worked on June 28, 2021. TD provided an Explanation of Benefits (“EOB”) letter dated October 19, 2021 confirming that the respondent’s IRB claim was accepted and that her weekly benefit payable would be $222.40. The period of entitlement was determined retroactive to July 20, 2021 and ongoing.

3Contained within this EOB letter was a request made under s. 33(1) of the Schedule for various documents including a complete copy of the respondent’s Ontario Works file and a copy of the respondent’s application for maternity benefits.

4However, when TD received the respondent’s Ontario Works file, it was noted that the respondent had applied for Employment Insurance (“EI”) benefits. TD then sent an overpayment letter pursuant to s. 52 of the Schedule on April 21, 2022 seeking a full repayment of the $8,768.91 paid out in IRBs.

ISSUES

5The issues in dispute are:

i. Is the applicant (insurer) entitled to a repayment of $8,768.91 relating to its payment of an income replacement benefit for the period from July 30, 2021 to April 30, 2022?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6TD is not entitled to repayment as they have not proven that the benefits were paid out as a result of error, wilful misrepresentation or fraud.

PROCEDURAL ISSUES

7TD has raised a procedural issue in their initial submissions.

8TD notes that the respondent has not provided disclosure as directed in the Tribunal’s order following the case conference.

9This dispute concerns a benefit which has already been paid to a fixed amount. The burden rests with TD to prove that this payment was a result of error, willful misrepresentation or fraud.

10The Tribunal has the discretion to admit late evidence, I find that TD is not prejudiced by the late disclosure as they will have an opportunity to address any late disclosed evidence in their reply. I will consider the late disclosure when assigning weight.

11Therefore, I find that all evidence presented by the respondent will be admitted for the hearing.

ANALYSIS

12Section 7(3)(a) of the Schedule provides that the insurer may deduct 70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an IRB.

13Section 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 that is “paid to the person” as a result of an “error on the part of the insurer,” the insured person or any other person, or as a result of wilful misrepresentation or fraud. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

14TD has submitted that an overpayment was made as the respondent received either Employment Insurance or maternity benefits during the time they were receiving IRB and did not disclose them to TD.

15The respondent has submitted that they were not in receipt of Employment Insurance or Maternity benefits. Instead, the respondent had received the Canada Recovery Caregiving Benefit (“CRCB”). The respondent further submits that the Tribunal has found in Foster v Aviva Gen. Ins. Co., 2021 CanLII 117413 (ON LAT) (“Foster”) that the Canada Recovery Benefit (“CRB”) and the Canada Emergency Response Benefit (“CERB) were not considered gross employment income under the Schedule. As the Canada Recovery Caregiving Benefit was also enacted under the Canada Recovery Benefits Act along with the CERB and the CRB, the respondent argues it should also be excluded from the definition of gross employment income under the Schedule.

16I concur with the Tribunal’s reconsideration decision in Foster. While the public policy goal of CRB/CERB/CRCB was an expedited delivery of benefits typically available under the Employment Insurance framework, section 4(1) of Schedule is clear. Gross employment income is defined as salary, wages and other renumeration from employment, and any benefits received under the Employment Insurance Act (Canada).

17The suite of recovery benefits provided during the pandemic were enacted through the Canada Recovery Benefits Act and do not fall into any of the items outlined as gross employment income, as defined by the Schedule.

18The CRCB provided $500 for each one-week period, to a maximum of 44 weeks, between September 27, 2020 and May 7, 2022. A key condition in the application of CRCB benefits is that an applicant for the CRCB could not apply for or receive Employment Insurance Benefits for the same period.

19The respondent has submitted printouts from her CRA My Account showing the summary of all tax slips for the years 2020, 2021 and 2022.

20TD notes that these printouts should not be accepted as they do not have any identifying information from the respondent. They only list the type of T-slip, the issuer, and the values from the relevant boxes.

21While I understand TD’s position, in this case, the figures, T-slips and amounts can be traced to the facts in this dispute. I accept these as evidence and assign them weight in this dispute for the following reasons.

22For the 2021 tax year, the respondent has produced three tax slips:

i. A T4 from Markhaven Incorporated which aligns to her employment as confirmed in the OCF-2.

ii. A T4A from the Government of Canada showing that the respondent received $6,000 in the form of CRCB payments.

iii. A T5007 from the Province of Ontario outlining social assistance received.

23For the 2022 tax year, the respondent has produced three tax slips:

i. A T4 from 1003126 Ontario Ltd. The dates of employment for this renumeration are unknown.

ii. A T4E showing the receipt of Employment Insurance Benefits

iii. A T5007 from the Province of Ontario outlining social assistance received.

24TD has the burden of proving that the IRB was paid in error or wilful misrepresentation or fraud on a balance of probabilities. On the facts, I find that, while it is not clear exactly when the respondent received EI benefits, she did not receive any EI benefits during the 2021 tax year.

25TD requested that the respondent provide information regarding EI Benefits received on the following dates:

i. August 26, 2021;

ii. September 21, 2021;

iii. October 19, 2021;

iv. November 11, 2021;

v. November 25, 2021; and

vi. December 16, 2021.

26As noted above, on these dates, the respondent was not receiving EI Benefits.

27TD submits that these requests were made per s. 33(1) of the Schedule. However, the remedy for non-compliance is outlined in s. 33(6). The insurer is not liable to continue the benefit during periods of s.33(1) non-compliance. TD continued the IRB payments despite the s.33(1) non-compliance.

28The Schedule does not deem non-compliance with a s.33(1) request as grounds for a repayment.

29The IRB was discontinued on February 19, 2022, following a request on January 25, 2022 for a new OCF-3.

30The respondent has provided screenshots from Service Canada which appear to show the first Employment Insurance payments made to the respondent were made on February 10, 2022. Nine days before the benefits were stopped.

31As previously noted, the standard for repayment of an IRB is defined in the Schedule. TD must prove that the payment was made in error, due to willful misrepresentation or fraud.

32In submissions, TD has equated a note in the Ontario Works file that the respondent has applied for EI as a statement that she received EI.

33Given TD’s burden of proof, equating a second-hand report regarding an application for benefits with receipt of benefits does not satisfy this burden. It does not lead me to believe that there was willful misrepresentation or fraud. On the evidence before me, I find it is mere speculation.

34The respondent has presented evidence which demonstrates that they did not receive Employment Insurance payments before February 10, 2022. As this is the basis of TD’s allegations, I find that they are not entitled to a repayment of benefits as the criteria in s. 52(1) has not been met.

35There is no evidence that the respondent has engaged in willful misrepresentation or fraud, nor is there evidence that TD provided benefits in error.

36Therefore, for the reasons above, I find that TD is not entitled to a repayment from the respondent.

ORDER

37For the reasons above, I find that:

i. The respondent is not required to repay the Income Replacement Benefits received;

ii. No interest is payable; and

iii. This application is dismissed.