Citation: TD General Insurance Company v Julian Bennett, 2024 ONLAT 22-001767/AABS

Licence Appeal Tribunal File Number: 22-001767/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

Julien Bennett

Respondent

DECISION

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: TD General Insurance Company, Applicant Peggy Moore, ADR Claims Specialist Harkamal Hehar, Counsel

For the Respondent: Julien Bennett, Respondent Tania Billard, Spouse of the Respondent

HEARD: by Teleconference and written Submissions: November 20, 2023

OVERVIEW

1Julien Bennett, the respondent, was involved in an automobile accident on June 29, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant, TD General Insurance Company, paid the respondent an income replacement benefit before terminating the benefit. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the repayment dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant (insurer) entitled to a repayment of $10,900.00 ($12,000 less $1,100 paid to December 31, 2022), relating to its payment of Income Replacement Benefit “(IRB”) to the respondent for the period of October 14, 2018 to May 19, 2019.

ii. Whether an agreement was reached between the parties for repayment at the rate of $50 per month?

iii. Is the applicant entitled to interest on any overdue repayment of benefits?

iv. Is the respondent entitled to costs?

RESULT

i. The applicant (insurer) is not entitled to a repayment of $10,900.00.

ii. An agreement was not reached between the parties for repayment.

iii. The applicant is not entitled to interest.

iv. The respondent not entitled to costs.

ANALYSIS

Is the respondent liable to repay the applicant?

3Section 52 of the Schedule states that a person is liable to repay 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.

4The insurer must give notice within 12 months after the payment is made otherwise the person ceases to be liable. The 12-month requirement does not apply if the benefit was paid as a result of wilful misrepresentation or fraud.

5The Tribunal has adopted the Black’s Law Dictionary definition of “misrepresentation” as “any manifestation of words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” The Tribunal has held that remaining silent or failing to report can constitute wilful misrepresentation. I agree with this interpretation and apply it here.

6The onus is on the applicant to establish that the respondent obtained an IRB by wilful misrepresentation or fraud. I find it has failed to meet its onus.

7It submits that the respondent received IRB payments from July 6, 2018 to May 19, 2019, but returned to work in September 2018 and did not notify the applicant of his return to work. The applicant submits it only discovered that the respondent had returned to work when he attended for an IE Assessment in August 2019 and reported same to the assessor.

8On August 20, 2019, the applicant advised the respondent that he was not entitled to IRB’s based on the conclusions from the multidisciplinary reports that stated the respondent did not suffer a substantial inability to perform the essential task of this pre-accident employment. The applicant submits it sent five notices for repayment from August 20, 2019 to December 7, 2020, but it is unclear whether they were sent to the respondent’s previous address, the respondent’s prior counsel or where they were directed to.

9The applicant testified it acknowledges that the respondent sent his former counsel his first paystub, dated September 22, 2018, on September 27, 2018. However, it asserts that the paystub and work information were not forwarded to the applicant by the respondent’s counsel. Therefore, by continuing to accept IRB payments and by not directly sending the applicant the respondent’s paystub, this inaction constitutes misrepresentation by way of silence or a failure to report.

10The respondent argues that at the time of the accident he hired a lawyer to represent him with his case. Once he started working on DATE, he immediately notified his lawyer and submitted his first paystub to his counsel to be sent over to the applicant in order to stop IRB payments.

11As payments continued to be direct deposited into his bank account after he returned to work, the respondent testified that he contacted his lawyer regarding the payments and was told, “…it was fine and not to worry about it.” He further testified that he also called Kristy Lynne, the adjuster on file from TD General Insurance Company (“TD”) to see why he was continuing to receive payments and was told that, “I could not speak directly to them, as we signed a contract with Diamond and Diamond”. The respondent testified that he was told Kristy Lynne the is only authorized to speak to the respondent’s counsel from Diamond and Diamond directly.

12It is the position of the respondent that it is his former counsel who erred, and that the applicant should pursue the overpayment from his former counsel. He submitted into evidence an email addressed to Sadique Alexander, Accident Benefits Clerk at Diamond and Diamond Law on September 27, 2018 with a photo of his fist pay stub from work post accident. The respondent submits that he did everything he could to be transparent and honest, including reaching out to the insurer directly, only to be told that the insurer would not speak to him about the matter.

13On the evidence, I find the applicant has not satisfied me on a balance of probabilities that the IRB was paid as a result of wilful misrepresentation or fraud. I find the respondent took proactive steps to notify the applicant of his employment status. The applicant acknowledges the respondent forwarded a copy of it’s first paycheck to his prior counsel, he attempted to reach out to the applicant to resolve the matter and was told he could not speak to the adjuster at TD directly. I do not find the respondent tried to mislead or fraudulently obtain IRB benefits.

14I disagree with the applicant’s position. I find the respondent did not remain silent. I find he took every step he reasonably could to notify the applicant of his employment status immediately. I also find he did not provide false or misleading information to misrepresent his employment status.

15The applicant is not entitled to a repayment of the IRB benefits in the amount of $10,900.00 as the applicant has failed to meet its burden to prove the respondent wilfully or fraudulently misrepresented his employment status in order to obtain IRB. The respondent is not required to make any further payments to the applicant.

Was an agreement reached between the parties for repayment at the rate of $50 per month?

16I find an agreement was not reached between the parties for repayment at the rate of $50 per month.

17The applicant submits in it’s document brief that an agreement was not reached between the parties for repayment at the rate of $50 per month. It is the applicant’s position that the respondent believes he is entitled to pay back the $50 per month based on an email sent by Diamond and Diamond dated January 2, 2020 which indicated that Sadique Alexander from TD.

18Insurance had spoken to the adjuster Kristy-Lynn also from TD Insurance who agreed to start accepting $50.00 per month until the respondent was in a position to pay more.

19The respondent has been submitting the payments as directed by prior counsel however the respondent takes the position that it should be the office of Diamond and Diamond lawyers who should be liable for this repayment as it is their office that erred.

20The applicant takes the position that there isn’t an agreement between the parties, and I agree. I find the email between the adjusters and the prior law firm a suggested short term payment arrangement, not a contractual agreement. The applicant does not accept these terms as a contract and the respondent has raised the question of liability to pay. The respondent submits that it should be the prior law firm handling his file, Diamond and Diamond who erred and should therefore pay. I find there isn’t a contractual agreement between the parties.

21Further, given that the applicant is not entitled to the balance of the repayment of the IRB because it has not demonstrated material misrepresentation or fraud, therefore a determination about the parties’ agreement is not necessary.

Costs

22Under Rule 19 of the Licence Appeal Tribunal Rules, 2023, where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith within the proceeding, that party may make a request to the Tribunal for costs. Costs are discretionary, not mandatory.

23The respondent made a request for costs; however, no submissions were made to the Tribunal, and no particular amount was requested.

24For these reasons, I decline to make an order for costs.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 52(5) of the Schedule. No interest applies as the repayment of the benefit has been denied.

ORDER

26The applicant (insurer) is not entitled to a repayment of $10,900.00.

27An agreement was not reached between the parties for repayment.

28No interest is payable.

29The respondent is not entitled to costs.