Citation: TD General Insurance Company v. Saund, 2025 ONLAT 24-004810/AABS

Licence Appeal Tribunal File Number: 24-004810/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

Sukhmani Saund

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Adrianna Klukowska, Counsel

For the Respondent: Vismay Merja, Counsel – No submissions filed

HEARD: By way of written submissions

OVERVIEW

1Sukhmani Saund, the insured, was involved in an automobile accident on September 29, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The insured was denied benefits by the insurer, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The insurer in response, applied to the Tribunal seeking repayment of Income Replacement Benefits (“IRB”) paid to the insured.

ISSUES

3The issue in dispute is:

i. Is the insurer entitled to repayment of $5,142.86 relating to its payment of an income replacement benefit (“IRB”) for the December 16, 2022 to March 2, 2023 period?

ii. Is the insurer entitled to interest on any repayment of benefits?

RESULT

4I find that pursuant to s. 52 of the Schedule, the insurer is entitled to repayment of IRBs in the amount of $5,142.86, with interest.

PROCEDURAL ISSUES

Notice of the Hearing

5I find that the Tribunal has met its notice obligations. Therefore, I am proceeding with this hearing in the absence of the insured, who has not filed written submissions.

6Proceeding 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.

7The insured was denied income replacement benefits and submitted an application to the Licence Appeal Tribunal (“the Tribunal”) on March 13, 2023. (Tribunal File No. 23-002852/AABS).

8The parties participated in a Case Conference on November 3, 2023 for the related matter in 23-002852/AABS and a Case Conference Report and Order (“CCRO”) was issued dated November 14, 2023, listing the preliminary issue and the substantive issues in dispute as follows:

i. Preliminary Issue:

a. Is the applicant barred from proceeding with her claim for benefits as she failed to submit the application for benefits within the time prescribed by the Schedule?

ii. Substantive Issues:

a. Is the applicant entitled to an IRB in the amount of $400.00 per week from October 6, 2022 to December 15, 2022?

b. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

c. Is the applicant entitled to interest on any overdue payment of benefits?

9On November 16, 2023, the Tribunal emailed a Notice of Written Hearing to the parties that set a written hearing date of June 28, 2024.

10On April 16, 2024, the insurer filed an application relating to the same accident, seeking repayment of $5,142.86 for IRBs paid from December 16, 2022 to March 2, 2023 plus interest. (Tribunal File No. 24-004810/AABS).

11On May 9, 2024, the insurer filed a Notice of Motion requesting on consent that the Tribunal combine the applications and that the combined application proceed to the June 28, 2024 written hearing. By Order dated May 14, 2024, the Tribunal granted the insurer’s motion and agreed to combine the two applications to proceed to the June 28, 2024 written hearing under file number 24-008410/AABS. On May 23, 2024, a Notice of Written Hearing was sent to both parties under Tribunal File No. 24-004810/AABS.

12On June 11, 2024, the insurer wrote to the Tribunal to confirm whether the insured had filed submissions that were due on May 29, 2024. The Tribunal responded that it had not received any submissions.

13On June 18, 2024, the insurer filed its submissions in compliance with the CCRO.

14On June 20, 2024, the Tribunal emailed all parties and reminded the parties that a written hearing is scheduled for June 28, 2024. It noted that its records indicated that it has not received the insured’s submissions.

15On June 24, 2024, the insured submitted a Notice of Withdrawal indicating that she was withdrawing her appeal before the Tribunal.

16By email correspondence on June 25, 2024, the insurer advised that it was not withdrawing the overpayment issue and that the file is to remain open and they would be proceeding to the hearing. This was reconfirmed in a second email from the insurer dated June 26, 2024.

17The insurer filed and served its submissions by the deadline set out in the CCRO. The insured did not file any submissions.

18Given the above, 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. The insured was aware of this hearing and chose not to participate. Accordingly, I shall proceed with the hearing.

ANALYSIS

IRB Repayment

Notice of repayment request

19I find that the insurer has satisfied the repayment notice requirements as specified in ss. 52(2) and 52(3) of the Schedule.

20An insurer is permitted to claim the repayment of an IRB in certain situations and subject to certain conditions as established by the Schedule. Section 52(2) provides that an insurer must give an insured person notice of the amount that is required to be repaid. Section 52(3) mandates that such notice be provided within 12 months of the payment of the amount that is to be repaid, unless the amount was originally paid because of wilful misrepresentation or fraud.

21The insurer has not made any submissions about the notice requirements in ss. 52(2) and 52(3) of the Schedule. However, upon review of the correspondence sent by the insurer to the insured on February 29, 2024, I find that it meets the notice requirements of s. 52, as this was provided within the 12-month period. The letter identified the amount of IRBs being sought in repayment and the reason that repayment was being sought. I further find that as the evidence supports that the insured wilfully misrepresented her pre- and post-accident employment and income, under s. 52(3) of the Schedule, there is no time limit on the duty to repay, where the amount was originally paid as a result of wilful misrepresentation or fraud.

22As a result, the insurer may seek repayment of IRBs.

Wilful misrepresentation and IRB repayment

23I find that the insurer is entitled to the repayment of $5,142.86 relating to its payment of IRBs to the insured during the period of December 16, 2022 to March 2, 2023, as a result of the insured’s wilful misrepresentation regarding her pre-accident and post-accident employment and income.

24Section 52(1)(a) of the Schedule establishes that an insured person is liable to repay the insurer any benefit “paid 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.”

25The insurer submits that an IRB was paid to the insured following the accident due to its error and the insured’s wilful misrepresentation. The insurer initiated IRB payments starting on December 15, 2022 and set the quantum at $400.00 per week based on information provided by the insured in an Application for Accident Benefits (OCF-1), an Employer’s Confirmation Form (OCF-2) and four pay stubs from August 15, 2022 until September 29, 2022 from Hookah Lounge and Grill.

26On March 2, 2023, the insurer followed up on correspondence dated January 31, 2023, requiring the insured to submit an updated Disability Certificate by February 27, 2023, or IRBs would be discontinued. As the insured did not provide an updated Disability Certificate, the March 2, 2023 letter informed the insured that her IRBs had therefore been discontinued. On March 28, 2023, the insurer sent a letter to the insured requesting various income documentation including tax records under s. 33 of the Schedule. The insurer submits that these records were never provided by the insured.

27The insurer submits that it continued to make efforts to fairly adjust the insured’s claim. On November 30, 2023, pursuant to s. 33 of the Schedule, the insurer examined the insured under oath, to allow the insured to clarify information about her pre- and post-accident employment. The insurer submits that the evidence provided by the insured at the examination was inconsistent with the OCF-1, OCF-2 and paystubs submitted by the insured. The insurer submits that the evidence provided by the insured was not credible regarding her pre-accident employment start date, hourly pay, working hours, and job role. In addition, despite counsel for the insured agreeing at the examination to provide various employment and income documentation, none of these productions have been provided by the insured.

28The insurer further submits that the insured failed to inform the insurer that she commenced a new role as a support associate in mid-December of 2022, during which time she was in receipt of an IRB. This information was later revealed at the November 30, 2023 examination under oath.

29I accept the submissions made by the insurer that the representations made by and on behalf of the insured to the insurer, and the evidence produced about the insured’s pre- and post-accident employment, were inconsistent. The insurer provided multiple examples within its submissions of these inconsistencies. I find that the insured had many opportunities to correct and clarify discrepancies about her employment and income but failed to comply with s. 33 production requests. In addition, the insured did not provide submissions in respect to this hearing despite being given sufficient notice of the hearing.

30Based on the above stated reasons, I find that under s. 52(1) of the Schedule, the insured is liable to repay the IRBs to the insurer.

Interest

31Section 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 15^th 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 15^th day after the notice is given.

32As I have found that repayment is owed to the insurer, it follows that the insurer is also entitled to interest on the amounts to be repaid under s. 52(5) of the Schedule.

ORDER

33For the reasons stated above, pursuant to s. 52 of the Schedule, the insurer is entitled to repayment of IRBs in the amount of $5,142.86, plus applicable interest.