Certas Home and Auto Insurance Company v. O'Neil, 2024 CanLII 86458

Citation: Certas Home and Auto Insurance Company v. O'Neil, 2024 ONLAT 20-010768/AABS

Licence Appeal Tribunal File Number: 20-010768/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 Home and Auto Insurance Company

Applicant

and

Michael Dion O'Neil

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Brett Kodak, Counsel

For the Respondent:

No Submissions Filed

HEARD:

By Way of Written Submissions

OVERVIEW

1Michael Dion O'Neil, (the “respondent”), was involved in an automobile accident on August 13, 2018, and sought benefits from Certas Home and Auto Insurance Company (“Certas”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Certas paid certain benefits, including an Income Replacement Benefit (“IRB”) in the amount of $400.00 until January 9, 2019. Certas now seeks the repayment of the IRB under s. 52(1)(b) of the Schedule.

ISSUES

2The issues in dispute are:

i. Is Certas entitled to a repayment of $8,400.00 relating to its payment of IRB for the period of August 13, 2018 to January 13, 2019?

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

RESULT

3Pursuant to s. 52, Certas is entitled to repayment for the IRB paid in the amount of $8,400.00, plus applicable interest.

ANALYSIS

Proceeding with the Hearing in the Absence of the Respondent

4As explained below, I find that the Tribunal has met its reasonable notice obligations. Therefore, I am proceeding with this written hearing in the absence of 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 ss. 6(1) and 6(4) of the SPPA.

6On May 11, 2022, a case conference was scheduled for this application, which the respondent did not attend. As such, the case conference was adjourned to November 10, 2022. The Case Conference Report and Order (“CCRO”) was mailed to the respondent’s last known address.

7On November 10, 2022, the respondent once again did not attend the scheduled case conference. This was a resumption of the previous case conference that was adjourned due to the non-attendance of the respondent. The case conference proceeded without the respondent, and a CCRO was released on January 18, 2023, that identified the issues in dispute as noted above and set the matter down for a written hearing. This CCRO also established a timeline for both parties regarding submissions.

8On or about February 2, 2023, the Tribunal sent a Notice of Written Hearing to each of the parties that set a written hearing date of September 22, 2023. The timeline established by the CCRO and the Notice of Written Hearing required Certas’ submissions to be filed by August 22, 2023 and the respondent’s submissions to be filed by September 8, 2023. Certas’ reply submissions, if any, were due by September 15, 2023.

9Certas filed its submissions by the deadline noted above. The respondent did not.

10Tribunal records indicate that on September 22, 2023, the Case Management Officer (“CMO”), sent an email to the respondent following their telephone call. The CMO noted in the email that, during the telephone call, the respondent provided a further address that he requested mail to be sent to.

11On November 3, 2023, the Tribunal advised Certas that since the respondent did not receive the CCRO, dated November 10, 2022 until October 4, 2023, the written hearing would have to be rescheduled to January 12, 2024. Thus, a Notice of Rescheduled Written Hearing was sent to all parties. Tribunal records indicate that the Notice of Rescheduled Written Hearing was sent to both of the respondent’s addresses (previous and the new one provided on September 22, 2023).

12To date, the respondent has not further contacted the Tribunal with respect to this hearing.

13Tribunal records also do not indicate any request from the respondent to change the format from a written hearing in accordance with s. 6(4)(b) of the SPPA.

14As a result, I am satisfied that the Tribunal has met its notice obligations pursuant to s. 7(2) of the SPPA and is in compliance with ss. 6(1) and 6(4) of the SPPA. Accordingly, I may proceed with this hearing.

Certas is entitled to repayment of IRB in the amount of $8,400.00, plus applicable interest

15I find that Certas is entitled to repayment of the IRB in the amount of $8,400.00, as the respondent was disqualified from receiving IRB, under s. 31(1)(a)(ii).

16Section 52 of the Schedule concerns the repayment of benefits. Under 52(1)(b), a person is liable to repay any IRB paid to them if the person was disqualified from receiving the benefit under Part VII of the Schedule. In particular, under 31(1)(a)(ii) of the Schedule which states that an insurer is not liable to pay an IRB to a person who was driving without a valid driver’s licence at the time of the accident.

1752(2) and (3) establish timelines for repayment requests if a person is liable for repayment. The insurer is required to give the person notice of the amount that is to be repaid. If notice is not given within 12 months after the payment of the amount to be repaid, the person ceases to be liable to repay that amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

18Certas has the burden of proving, on a balance of probabilities, that it is not liable to pay an IRB to the respondent because the respondent was driving without a valid driver’s licence at the time of the accident.

19Certas argues that the respondent was disqualified from receiving IRB under s. 31(1)(a)(ii), as he was driving with a suspended license at the time of the accident. As such, once it discovered this, it terminated the respondent’s IRB effective January 13, 2019, as per s. 31, and sent both an OCF-9 and a Notice of Repayment under s. 52. It argues that the Notice of Repayment was unequivocal and all of the IRB payments were made in the 12 months prior to that date, thus the notice is compliant with s. 52, and it is entitled a full repayment.

20I find that Certas has established that the respondent received IRB when he was disqualified to do so under s. 31(1)(a)(ii), as the evidence demonstrates that he had a suspended license at the time of the accident. For instance, on July 6, 2018 (a month before this accident), Dr. Stephen Singh, the respondent’s family physician, completed a Medical Condition Report which indicated that the respondent had certain medical conditions that may make it dangerous for him to operate a motor vehicle.

21Subsequently, on July 20, 2018, the respondent met with Dr. Singh to inquire on why his license had been “pulled”. Dr. Singh advised the respondent that it was mandatory to report his medical conditions to the Ministry of Transportation, and this is why it was done.

22Significantly, Certas requested an Ontario Driving Record for the respondent, which revealed that his license had been suspended on July 20, 2018 (less than a month before this accident). The Ontario Driving Record also revealed that the respondent was charged in relation to this accident, as he was driving with a suspended license.

23In short, I accept that the respondent was paid an IRB for a period in which he was disqualified from receiving the benefit under s. 31(1)(a)(ii), as he was driving a suspended license at the time of the accident, which is not a valid license. Thus, he is liable to repay the IRB if Certas’ notice was compliant with s. 52.

24Certas submits, and I agree, that it provided proper notice to the respondent, under s. 52(2), when it requested repayment. On review of the letter dated January 18, 2019, I find Certas provided notice within twelve months after payment of the amount that is to be repaid (IRB payments were made from October 27, 2018 to January 9, 2019). The letter clearly states the grounds for repayment request under s. 31(1)(a)(ii), that Certas was requesting repayment under s. 52(1)(b), the amount of repayment sought ($8,400.00, being the amount in dispute), and that interest under s. 52(5) would apply.

25To date, the respondent has not repaid the $8,400.00 that was requested by Certas as an IRB overpayment and he has not responded to this application. As a result, I find Certas is entitled to a repayment of IRB under s. 52 where the IRB was paid when the respondent was disqualified from receiving the benefit under s. 31(a)(ii), where Certas’ notice was compliant with s. 52, and where a rescheduled notice of written hearing was properly sent to the respondent and no defence was offered. Interest applies to the overdue amounts pursuant to s. 52(5) of the Schedule.

ORDER

26Pursuant to s. 52, Certas is entitled to repayment for the IRB paid in the amount of $8,400.00, plus applicable interest.

Released: September 12, 2024

__________________________

Tanjoyt Deol

Adjudicator