Licence Appeal Tribunal File Number: 23-003971/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
Balaji Chandran
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Nick Mahdavi, Counsel
For the Respondent:
Loreto Scarola, Paralegal
HEARD:
In Writing
OVERVIEW
1TD General Insurance Company, the applicant, paid income replacement benefits (“IRBs”) to Balaji Chandran, the respondent, who was involved in an automobile accident on January 16, 2022. The respondent sought repayment of a portion of the income replacment benefits paid pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant has not received repayment of benefits by the respondent insured, and it has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the insurer entitled to a repayment of $11,371.43 relating to its payment of an income replacement benefit for the period of January 24, 2022, to November 10, 2022?
ii. Is the applicant entitled to interest on any overdue repayment of benefits?
3In its submissions, the applicant indicates that following receipt of comprehensive financial information, the applicant has revised the total repayment being requested from $11,371.43 to $8,813.59.
RESULT
4The applicant is entitled to repayment pursuant to s. 52 of the Schedule in the amount of $8,813.59, plus interest.
ANALYSIS
The applicant committed wilful misrepresentation
5For the reasons that follow, I find that the applicant is entitled to repayment pursuant to s. 52 of the Schedule in the amount of $8,813.59, plus interest, as a result of its overpayment and the respondent’s willful misrepresentation.
6Section 52 concerns the repayment of benefits. Under s. 52(1), a person is liable to repay any IRBs paid to them as a result of a) an error; or b) 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. These provisions provide that the insurer shall provide 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. The applicant has the burden of proving that IRBs was paid as a result of an error or wilful misrepresentation or fraud on a balance of probabilities.
7The applicant submits that the respondent returned to work and did not inform the applicant and that this, along with delayed submission of relevant financial documentation, led to an overpayment of income replacement benefits for which the applicant is seeking repayment. The applicant relies on their correspondence with the respondent, the applicant’s IRB calculation and the respondent’s late-submitted financial records.
8The respondent submits that he had a graduated return to work and was forthright with s. 44 assessors about his work status. He submits that while there has been an IRB overpayment it was as a result of lack of knowledge regarding the Schedule, the belief that the respondent was owed IRBs, and poor representation.
9I find that the respondent was properly informed of his entitlement to and obligations for the IRBs. In his OCF-10 (election of benefits form) dated January 31, 2022, the respondent elected to receive IRBs. He then submitted an OCF-2 (employer’s confirmation form) dated February 1, 2022. The applicant provided an explanation of benefits (EOB) letter dated February 4, 2022, confirming that the respondent’s IRBs claim was accepted, that his weekly benefit would be $400.00 per week during the period that he continued to suffer a substantial inability to perform the essential tasks of his employment. The EOB notes that the amount is subject to deductions for income from employment received after the accident. The EOB is clear and specific with regard to the respondent’s benefits and obligations.
10I find that the respondent returned to work and failed to inform the applicant. The applicant submits that it was unaware of the return to work until October 5, 2022. The respondent, according to his own submissions, returned to work on a gradual basis beginning on April 8, 2022, and by May 21, 2022, was working his usual hours, without accommodation, at one of his employers. A role with a second concurrent employer ended following the accident as the respondent was on a three-month probationary period and the employer was reportedly not able to provide his requested employment accommodations. The applicant continued to pay IRBs at $400 per week. However, as noted in correspondence with the respondent and outlined in the Schedule at s.7(3) the applicant would have been entitled to make deductions to the IRBs paid as a result of income earned.
11The 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)]. I agree with the reasoning in this case and find the test is as stated.
12I find that the respondent willfully misrepresented the facts regarding his return to work. The respondent returned to work April 8, 2022, on modified duties and with a modified schedule, and failed to inform the applicant. The respondent submits that he reasonably believed he was entitled to IRBs and was unaware of the rules and failed to proactively notify the applicant of his return to work. I find, however, that while working at Mount Sinai Hospital at his regular pre-accident hours, the respondent wilfully represented his employment situation when he indicated that he remained substantially unable to perform the essential tasks of his work on an updated OCF-3 sign on September 26, 2022. I find that the completion of this OCF-3 in conjunction with the failure to report his return to work was willful misrepresentation.
13As I have found the respondent wilfully misrepresented the facts regarding his employment status, as set out above, the 12-month notice period in s. 52(3) does not apply.
14With respect to quantum, both parties’ calculations demonstrate that a repayment is owed. The applicant’s IRBs calculation noted as “Income Replacement Benefit Calculations” and “TD IRB Benefit Calculator highlights” is before me, while an accounting report by the respondent is referenced by both parties it was not submitted as evidence. Therefore, I rely on the applicant’s calculation of IRBs repayment owing as I find it complete, and that the information contained within correlates to the referenced income documentation from the respondent.
15Accordingly, I find on a balance of probabilities that the respondent owes repayment of $8,813.59 to the applicant for overpayment of IRBs due to wilful misrepresentation.
Interest
16Sections 52(5) and (6) set out when an insurer may recover interest on repayment of benefits. 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.
17As the applicant is entitled to a repayment of benefits, it follows that they are also entitled to interest on the overdue payments, calculated at the bank rate in effect on the 15th day after proper notice was provided on May 31, 2024.
ORDER
18The applicant is entitled to repayment pursuant to s. 52 of the Schedule in the amount of $8,813.59.
19The applicant is entitled to interest pursuant to s. 52.
Released: March 6, 2025
Timothy Porter
Adjudicator