Citation: TD General Insurance Company v. Behrang Samadi, 2025 ONLAT 24-014548/AABS

Licence Appeal Tribunal File Number: 24-014548/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

Behrang Samadi

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Ken Yip, Counsel

For the Respondent:

Kenway Yu, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Behrang Samadi (“respondent”) was involved in an automobile accident on September 19, 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”).

2TD paid income replacement benefits (“IRBs”) to the respondent for a period of time after the accident. TD claimed that it overpaid IRBs to the respondent and requested a repayment of the benefits paid. The respondent disputed the requested method of repayment, and TD applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

a) Is TD entitled to a repayment of $17,581.64 relating to its payment of an IRB for the period of May 29, 2023 to May 28, 2024?

b) Is TD entitled to interest on any overdue payment of benefits?

RESULT

4I find that TD is entitled to a lump sum repayment of IRBs in the amount of $17,581.64, plus interest calculated in accordance with s. 52(5) of the Schedule.

background

5The respondent was involved in an accident on September 19, 2019 and claimed accident benefits from TD. TD began to pay IRBs to the respondent effective September 29, 2019 at the rate of $400 per week. TD stopped payment of IRBs effective November 17, 2021 on the basis of post-104 week s. 44 assessments. However, IRBs were reinstated on February 3, 2023 on the basis of subsequent s. 44 assessments.

6On September 20, 2021 TD advised the respondent that he may qualify for Canada Pension Plan Disability benefits (“CPPD”) and encouraged him to apply for it. In a letter dated April 26, 2023 TD noted that the respondent had applied for CPPD and made a request under s. 33 of the Schedule that the respondent provide a copy of the CPPD file. The April 26 2023 letter also noted that failure to provide the file by May 20, 2023 could result in the suspension or reduction of IRBs.

7The respondent did not provide the CPPD file by May 20, 2023, and on May 31, 2023 TD revised the amount of IRBs payable to the respondent by applying the minimum CPPD deduction. The revised amount of IRB payments was $194.34 per week.

8On January 20, 2024 the respondent’s CPPD benefits were approved, retroactive to March 2022. TD then sought repayment of overpaid IRBs as a result of the respondent’s receipt of CPPD benefits. Initially, on May 28, 2024 TD sent a notice requesting an IRB repayment of $39,486.64 for the period of March 1, 2022 to May 31, 2024, plus interest. TD subsequently revised the amount sought and in a notice dated August 30, 2024 requested an IRB repayment of $17,581.64 for the period of May 29, 2023 to May 28, 2024.

9In a letter dated January 30, 2025, TD requested confirmation that the respondent was attending treatment, pursuant to s. 57 of the Schedule. It advised the respondent that if such confirmation was not received by February 13, 2025, IRBs may be suspended. On February 13, 2025 TD suspended IRB payments on the basis of s. 57.

10The parties agree that CPPD benefits are deductible from IRBs, and that an overpayment in the amount of $17,581.64 exists for the period of May 29, 2023 to May 28, 2024.

ANALYSIS

Income Replacement Benefits

11Section 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.

12Pursuant to s. 52(2) if a person is liable to repay an amount,

a) an insurer shall give the person notice of the amount that is required to be repaid; and

b) the insurer may, if the person is receiving an IRB, give the person notice that the insurer intends to collect the amount by reducing each subsequent payment of the benefit by up to 20% of the amount that would otherwise be the amount of the benefit.

13Under s. 52(4) an insurer that has given a repayment notice may obtain repayment in the manner described in the notice.

TD is entitled to a lump sum repayment of $17,581.64

14The parties agree that TD is entitled to the $17,581.64 overpayment amount. However, they disagree as to the method of repayment. The respondent submits that it is entitled to a lump sum repayment as described in its repayment notice pursuant to s. 52(4) of the Schedule, while the applicant argues that IRBs should be reinstated, and the overpayment should be repaid by way of IRB deductions pursuant to s. 52(2)(b).

15In the August 30, 2024 repayment notice, TD requested that the respondent contact it to discuss repayment options, being a one-time repayment of $17,581.64 or a 20% deduction of the bi-weekly IRB until the full amount of the overpayment was repaid. The notice stated that if the respondent did not provide his option choice by September 16, 2024, the bi-weekly IRB payments will be deducted by 20%. However, by way of subsequent letter dated February 13, 2025, TD suspended IRB payments on the basis of s. 57.

Parties’ Positions

16The respondent submits that TD is not entitled to a lump sum repayment, or interest. He argues that his medical eligibility to IRBs is not in dispute, and that the overpayment did not arise as a result of any error or misrepresentation on his part. Rather, TD had encouraged the respondent to apply for CPPD benefits, which resulted in the retroactive approval and overpayment. The respondent further submits that TD created this situation where ongoing deductions are impossible by suspending his IRBs on procedural grounds under s. 57. However, as a catastrophically impaired individual who is unable to work, he is unable to repay the $17,581.64 in lump sum. Rather, in his orders sought, the respondent requests that IRBs be reinstated and that the repayment be made by way of deduction of up to 20% of the IRB payment.

17The respondent further argues that ongoing IRB deductions are the “preferred method of repayment” under the Schedule. He submits that s. 52(2) outlines the procedural steps an insurer must take for repayment, and pursuant to s. 52(2)(b), the legislature specifically cited IRB deductions as a method of repayment. Accordingly, he submits that this is a clear indication of legislative intent that IRB deductions should be used for the orderly repayment of funds without undue financial hardship on a vulnerable insured person.

18TD submits that the suspension of IRBs under s. 57 is not an issue in these proceedings. However, even considering the s. 57 suspension, it argues that it did not “create” this situation where IRBs were suspended and claw back deductions cannot be made, but rather, it is undisputed that the respondent moved to Las Vegas and failed to seek treatment. Given that there are now no ongoing IRB payments, pursuant to s. 52(4) of the Schedule, it may obtain repayment in a lump sum as described in the August 30, 2024 repayment notice. TD further argues that the fact that it encouraged the respondent to apply for CPPD benefits is irrelevant, since claimants have an obligation to apply for CPPD, citing Tribunal decision McBeth v Allstate Canada, 2022 CanLII 65584 (ONLAT).

19Finally, TD argues that while s. 52(2)(b) of the Schedule does describe IRB deductions, it can only be applied in situations where IRB payments are being made, and does not bestow entitlement to IRBs or prohibit IRBs from being suspended. Further, since s. 57 is not an issue in dispute at this hearing, the Tribunal has no jurisdiction to award a reinstatement of IRBs pursuant to s. 57(7).

Analysis

20I find that TD has established that it is entitled to a lump sum repayment of $17,581.64 for IRB overpayment.

21While I agree with the respondent that s. 52(2)(b) of the Schedule describes IRB deductions as a method of repayment, it is undisputed that IRBs are presently not being paid to the respondent due to a suspension pursuant to s. 57. While the respondent argues that the inclusion of s. 52(2)(b) is evidence of a clear legislative intent that IRB deductions should be used for the repayment of funds, he does not cite any authority or provide caselaw in support of his argument that IRB deductions must be the preferred method of repayment rather than lump sum payments. Particularly in a situation such as this, where IRB payments are not presently being made.

22I further agree with TD that since the issue of IRB entitlement or suspension under s. 57 is not presently before me, I do not have any jurisdiction under s. 57(7) to order a resumption of IRB payments. Nor does s. 52(2)(b) permit me to grant a resumption of IRB payments. The respondent argues that the issue of IRB suspension under s. 57 is inextricably linked to this repayment dispute and requests that I order reinstatement of his IRBs, but concedes that it is not the “primary issue of this hearing as per the Case Conference Report”. However, it is not simply that s. 57 is not the “primary issue” at this hearing, but rather, it is not an issue in dispute at all in this hearing.

23If the respondent had wanted to dispute the issue of IRB suspension under s. 57 together with the repayment issue, then this issue should have been raised at the case conference held on April 3, 2025. However, the s. 57 suspension was not identified as an issue in dispute at the case conference. I note that a representative for the respondent subsequently filed a Notice of Motion (“NOM”) on May 8, 2025, where it was stated that TD’s “denial of IRB stems from the same underlying facts and circumstances as the IRB overpayment issue”. However, the Tribunal replied by email on May 14, 2025, stating that a Declaration of Representative from the person filing the NOM had not been received, and that the NOM was incomplete as it did not clearly state the relief requested. As such, the motion would not be considered. No further motion was brought by the respondent to remedy the deficiencies in the first NOM or to add the s. 57 suspension as an issue to dispute at this hearing. Since this issue is presently not before me, I have no jurisdiction to order a resumption of IRB payments.

24Given that IRB payments are presently not being made, I do not see how I can order that the IRB overpayment should be repaid by way of IRB deductions pursuant to s. 52(2)(b), as requested by the respondent. Further, I do not agree with the respondent that the inclusion of s. 52(2)(b) is evidence of a clear legislative intent that the method of IRB deductions should be used for the repayment of funds. Rather, in my view, s. 52(2)(b) is permissive rather than mandatory. The provision states that the insurer “may” if the person is receiving an IRB, give notice that it intends to collect the amount to be repaid by reducing the person’s IRBs. But an insurer is not obligated to reduce their IRBs, particularly in a situation such as this where the claimant is not presently receiving IRBs.

25I note the respondent’s arguments that the Schedule is consumer protection legislation, that he is a catastrophically impaired individual who is unable to work and that a lump sum payment would cause him financial hardship. However, I do not find that the consumer protection mandate of the Schedule permits me to create a remedy in contravention of the Schedule. Section 52(1) states that a person “is liable to repay” an IRB overpayment. I do not find that I have discretion or authority to create terms for repayment that are not available under the Schedule. Nor do I have the discretion or authority to order a reinstatement of IRBs suspended under s. 57, when the issue of IRB suspension was not identified as an issue in dispute at this hearing.

TD is entitled to interest on the IRB repayment

26Section 52(5) of the Schedule states that an insurer may charge interest on the outstanding amount of IRB overpayment starting on the 15th day after it gave notice to the claimant of the amount outstanding and ending on the day the repayment is received in full. Interest is calculated at the bank rate in effect on the 15th day after notice is given.

27The respondent submits that the use of the word “may” in s. 52(5) indicates that an award of interest in the case of IRB repayment is discretionary not automatic. He argues that interest should not be awarded, since any delay in repayment has been caused by TD’s unreasonable conduct. Namely, by demanding a lump sum payment rather than the standard deduction method, and by suspending his IRB payments. The respondent also submits that an additional award of interest would cause further financial hardship on a catastrophically impaired person.

28TD submits that it did not “create” this situation where IRBs were improperly suspended, but rather, it is undisputed that the respondent moved to Las Vegas and failed to seek treatment. Further, it argues that the respondent has already received a windfall in this case, since TD cannot request any IRB overpayment from May 1, 2022 to May 29, 2023 as this was outside the 12 month period contemplated by s. 52(3) of the Schedule. Finally, TD submits that the use of the word “may” in s. 52(5) means that the insurer has discretion to charge interest. It does not mean that the Tribunal has the discretion to take away this right.

29I find that interest is due in accordance with s. 52(5) of the Schedule.

30The respondent has not directed me to any authority, or caselaw in support of his position that the Tribunal has the discretion to deny an insurer interest under s. 52(5) of the Schedule. From my review of s. 52(5), I agree with TD that the use of the word “may” means that an insurer may choose, but is not required, to charge interest on a repayment amount. Given that it is undisputed that TD is entitled to an IRB repayment in the amount of $17,581.64, it follows that it is entitled to interest payable pursuant to the bank rate as per sections 52(5) and 52(6) of the Schedule.

ORDER

31TD is entitled to a lump sum repayment of IRBs in the amount of $17,581.64 for the period of May 29, 2023 to May 28, 2024, plus interest pursuant to sections 52(5) and 52(6) of the Schedule.