TD General Insurance Company v. Nageswaran, 2024 CanLII 126951

Citation: TD General Insurance Company v. Nageswaran, 2024 ONLAT 22-013767/AABS

Licence Appeal Tribunal File Number: 22-013767/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

Sathyagowri Nageswaran

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Annie Padhani, Counsel

For the Respondent: Sathyagowri Nageswaran, Respondent

HEARD: By way of written submissions

OVERVIEW

1Sathyagowri Nageswaran, (the “respondent”), was involved in an automobile accident on January 28, 2019, and sought benefits from TD General Insurance Company (“TD”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TD paid the Income Replacement Benefit (“IRB”) until July 10, 2020 in the amount of $31,452.52. TD now seeks the repayment of the IRB because the respondent wilfully misrepresented her employment status and employment income.

ISSUES

2The issues in dispute are:

i. Is TD entitled to a repayment of $31,452.52 relating to its payment of IRB for the period of February 5, 2019, to July 10, 2020?

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

RESULT

3Pursuant to s. 52 of the Schedule, TD is entitled to repayment of IRB in the amount of $31,452.52 as a result of the respondent’s wilful misrepresentation. Interest is payable in accordance with s. 52 of the Schedule.

ANALYSIS

Can the Tribunal Proceed in the Matter in Absence of the Respondent’s Submissions?

4The respondent did not provide written submissions for this hearing. Accordingly, I must be satisfied that the respondent received notice of this written hearing, in compliance with the Statutory Powers Procedure Act (“SPPA”) R.S.O. 1990, c. S.22.

5Section 7(2) of the SPPA allows this Tribunal to proceed with a scheduled written hearing in the absence of a party if it is satisfied that the absent party was given proper notice of the written hearing. In reviewing the Tribunal’s file, I find that the respondent was served notice, by way of email, of the written hearing. Therefore, in accordance with s. 7(2) of the SPPA, the respondent is not entitled to any further notice in the proceeding, and I may proceed in her absence.

Section 52 of the Schedule

6Section 52 of the Schedule governs 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.

7The Tribunal has defined “misrepresentation” as, “any manifestation by words or other conduct by one person to another that, under the circumstances, amount to an assertion not in accordance with the facts.” The Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation (see: 17-000272 v. T.T., 2017 CanLII 87539 (ON LAT) at paras. 21 and 28).

Wilful Misrepresentation

8I agree with TD that, on the evidence, it overpaid IRBs to the respondent as a result of a wilful misrepresentation by the respondent regarding her employment status and employment income at the time of the accident.

9TD argues that the respondent represented herself being employed by Next Gear Auto Group, as a receptionist and customer service manager in the Disability Certificate (“OCF-3”), dated March 21, 2019, Application for Accident Benefits (“OCF-1”) dated April 29, 2019, and Employer’s Confirmation Form (“OCF-2”), dated April 30, 2019. The respondent also represented in the OCF-2 that she earned $1,260.00 bi-weekly. It argues that as a result of these documents, on July 19, 2019, it paid IRB until August 3, 2020. TD further argues that once it received the respondent’s Ontario Disability Support Program’s (“ODSP”) file and Income Tax Returns from 2016 to 2020, it discovered that there was no notation of any employment income earned. As a result, TD argues that the respondent wilfully misrepresented her employment status and employment income.

10As noted above, the respondent did not provide any submissions for this written hearing.

11I find the respondent to have committed a wilful misrepresentation of her pre-accident employment income and status, which allowed her to receive the IRB from the time period of February 5, 2019, to July 10, 2020. This is because the respondent represented in the OCF-3, OCF-1, and OCF-2, that she was employed at the time of the accident and earned an employment income of $1,260.00 bi-weekly. The respondent also represented in her OCF-1 that she had not received any social assistance benefits, meanwhile, the ODSP file demonstrates that the respondent has been on this benefit since March 1, 2016. Furthermore, there is no notation of any employment income being earned from March 1, 2016 to the date of the accident. Nor, is there any indication that the respondent reported to ODSP that she was employed from March 1, 2016 to the date of the accident.

12Likewise, the Income Tax Returns demonstrate that from 2016 to 2019, the respondent declared the social assistance payments and universal childcare benefits she received. Significantly, the respondent did not file any employment income for this time period. Meanwhile, in 2020, the respondent declared EI and other benefits, other income, and social assistance payments.

13TD also cites the Tribunal Decision of Primmum Insurance Company v. Baley-Daley, 2015 CanLII 154395 (ON LAT). In that matter, the respondent represented that she was a personal support worker and submitted financial documentation to confirm her pre-accident income and employment. The insurer paid IRB until it discovered that the employers listed on the OCF-2 did not exist. At paragraph 18 of the decision, the Tribunal held that insurers and insureds owe each other a duty of good faith, which included an obligation for insureds to notify their insurer of the proper pre-accident income, and the receipt of other benefits, that may affect the payment or quantum of IRBs. While I am not bound by this decision, I find it persuasive and concur that the respondent had an obligation to inform TD of her proper pre-accident income (i.e., was she employed at the time of the accident, and if so, was the income reported or not) and that she was on ODSP at the time of the accident.

14In short, the respondent represented that she was employed, earning employment income, and not on any social assistance benefits at the time of the accident, meanwhile the ODSP file and Income Tax Returns demonstrate that she was on social assistance since 2016, and no employment income is mentioned.

15The respondent had multiple opportunities to correct and clarify discrepancies presented about her employment circumstances. She first had an opportunity when TD sent six letters from August 22, 2022 to November 24, 2023, requesting repayment of the IRBs because there was no notation of any employment income earned in the ODSP file and Income Tax Returns. The respondent also had opportunities to correct and clarify discrepancies during the course of these proceeding and in her written submissions, but she chose not to do so. Thus, even if the original misinformation had been inadvertent, she has had multiple opportunities to rectify the error but has not done so.

16In the absence of submissions from the respondent proving the contrary, it is difficult to find how the respondent’s conduct and silence at this hearing does not amount to “an assertion not in accordance with the facts.” Having found that the respondent wilfully misrepresented her employment status and employment income, I must now determine whether the respondent provided proper notice of repayment.

Notice of Repayment

17I find that TD has satisfied the repayment notice requirements as specified in ss. 52(2) and 52(3) of the Schedule.

18Sections 52(2) and (3) of the Schedule 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 within 12 months after the payment of the amount that is to be repaid unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

19TD argues that the correspondence, dated August 22, 2022, meets the notice requirements of s. 52. This letter, which was followed by reminders sent on September 20, 2022, June 26, 2023, September 13, 2023, October 24, 2023, and November 24, 2023, identified the type of benefits paid, the payment period and the amount of IRB being sought for repayment. TD further argues that the respondent willfully misrepresented her employment status and employment income and summarized s. 52(3). I infer from these submissions that TD is arguing that the IRB repayment period should not be limited to 12 months due to the respondent wilfully misrepresenting her employment status and employment income while receiving IRB.

20As noted above, the respondent has not provided submissions.

21The August 22, 2022 letter is compliant with the repayment notice provisions provided in s. 52 of the Schedule because it states the type of benefit to be repaid (IRB), the amount to be repaid ($31,452.52) and the payment period for which repayment is sought (February 5, 2019 to July 17, 2020). The 12-month limitation provision of s. 52(3) does not apply, as I also found that the respondent has committed wilful misrepresentation, as discussed above.

Interest

22Section 52(5) and 52(6) of the Schedule provide guidance on when an insurer may recover interest when seeking repayment. The insurer may charge interest on the outstanding balance of the amount to be repaid for the period starting on the 15th day after the notice is given and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice is given.

23Having found that TD is entitled to repayment, it follows that it is also entitled to interest on the amounts to be repaid under s. 52(5) of the Schedule.

ORDER

24For the reasons outlined above, TD is entitled to a repayment under s. 52 in the amount of $31,452.52 plus interest in accordance with s. 52 of the Schedule, as a result of IRB overpayment made on the basis of willful misrepresentation.