Citation: Security National Insurance Company v. Bingham, 2025 ONLAT 23-007576/AABS

Licence Appeal Tribunal File Number: 23-007576/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:

Security National Insurance Company

Applicant

and

Chenise Bingham

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Alanna Pink, Counsel

For the Respondent: Adam Moras, Counsel Devika Maharaj, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Security National Insurance Company, the applicant, paid income replacement benefits to Chenise Bingham, the respondent, who was involved in an automobile accident on January 2, 2020. The respondent sought repayment of a portion of the income replacement 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, 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 applicant entitled to a repayment of $7,130.20 relating to its payment of income replacement benefits for the period of January 9, 2020, to June 29, 2020?

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

3I note that the issue in dispute was identified in the Case Conference Report and Order of February 1, 2024 (“CCRO”), as being $7,130.20 for benefits paid between January 9, 2020, to June 29, 2020. The applicant has advised that it is actually seeking a repayment of $2,228.34 for benefits paid between January 10, 2020, to January 26, 2022. However, the respondent indicated in her submissions that the applicant has framed the issue in dispute erroneously. I will address this further in my analysis below.

RESULT

4The applicant is not entitled to a repayment for income replacement benefits paid, and it is not entitled to interest. This application is dismissed.

ANALYSIS

5I find that the applicant has not met its burden of proving, on a balance of probabilities, that it is entitled to a repayment pursuant to s. 52.

6Under s. 52(1)(a) of the Schedule, a person is liable to repay to the insurer any benefit that is 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. Section 52(2) specifies that the insurer shall give the person notice of the amount that is required to be repaid, and s. 52(3) provides timelines for repayment requests. 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.

7The applicant has the burden of proving that the income replacement benefit was paid as a result of an error, wilful misrepresentation, or fraud on a balance of probabilities.

8Throughout 2020, the applicant requested documents from the respondent in order to calculate income replacement benefits. On May 12, 2021, the applicant advised that it had forwarded the documentation to Pricewaterhouse Coopers LLP (“PWC”) for calculation of the benefit, and in good faith it issued a lump sum payment of $8,000.00.

9On July 7, 2021, the applicant provided the respondent with a report from PWC dated June 3, 2021, and advised that there was an overpayment in the amount of $7,130.20 for payments made between January 9, 2020, and June 29, 2020. The applicant explained that, in accordance with s. 52 of the Schedule, a person is liable to repay any benefit that is paid as a result of an error. It requested that the respondent contact them to provide repayment.

10On October 21, 2021, the respondent provided the applicant with an accounting report from Great Oak dated October 5, 2021. The applicant subsequently advised that it had placed another referral to PWC to assist in determining the benefit to that date. PWC requested further documentation and information from the respondent and Great Oak directly in November 2021.

11On December 17, 2021, PWC prepared a supplementary report which included an updated calculation. The applicant provided the report to the respondent on December 22, 2021, and advised that her new entitlement up to December 29, 2021, was $8,129.47 with an ongoing weekly entitlement of $237.70. No request for a repayment was made, and based on PWC’s findings, the respondent was entitled to more than the $8,000 that had previously been paid.

12On January 24, 2022, the respondent advised that she started a gradual return to work on January 10, 2022, and planned to return to part-time work in six weeks. On January 27, 2022, the applicant requested information related to the respondent’s post-accident income. The respondent subsequently attended s. 44 assessments and on April 21, 2022, the applicant advised that she was no longer entitled to income replacement benefits, effective May 6, 2022. The total amount of income replacement benefits paid to the respondent to date is $9,078.27, which appears to cover the period from January 9, 2020, to January 26, 2022.

13The applicant filed an application with the Tribunal on June 28, 2023, seeking repayment in the amount of $7,130.20 for payments made between January 9, 2020, and June 29, 2020.

14On July 10, 2024, the applicant provided the respondent with a third report from PWC dated June 11, 2024. This report indicated that the income replacement benefit payable between January 10, 2020, and January 26, 2022, was $6,849.93, and there was accordingly an overpayment in the amount of $2,228.34. The applicant requested repayment of the amount pursuant to s. 52. In its submissions, the applicant indicates that it is now seeking repayment of $2,228.34 for payments made up to January 26, 2022.

15I note that the applicant is not alleging that the respondent engaged in wilful misrepresentation or fraud. Its position is that there was an error in the calculation of the benefit due to missing pieces of information. It does not allege that these pieces of information were withheld wilfully or fraudulently. As such, if there is an error, the applicant is restricted to a repayment of benefits paid within 12 months of its request for repayment.

16The initial request for repayment of $7,130.20, which corresponds to the period of January 9, 2020, and June 29, 2020, was provided on July 7, 2021. This was well within the 12-month period after the lump sum payment was made on May 12, 2021. However, the July 10, 2024, request for repayment was made over 29 months after the applicant alleges the last payment was made in error, well outside the timeframe under s. 52(3). As such, I find that the applicant’s claim for repayment is restricted to the initial timeframe of January 9, 2020, to June 29, 2020.

17The applicant has not explained whether there is still an overpayment with respect to the period of January 9, 2020, to June 29, 2020, or how much the overpayment would be. While it had initially sought an overpayment of $7,130.20 for this period, by the applicant’s own admission that amount ceased to be accurate after further documentation was provided by the respondent. The only other overpayment amount put forward by the applicant is $2,228.34, but that amount factors in payments made from June 30, 2020, to January 26, 2022, which is outside the scope of the s. 52 request.

18It is not the role of the adjudicator to make the applicant’s case. It would not be appropriate for me to pull figures from the accounting reports in order to piece together a repayment amount. As the applicant has not provided compelling evidence or submissions regarding the quantum of the alleged overpayment for the period in dispute, I find it has not met its burden in proving that an overpayment was made or that it is entitled to a repayment pursuant to s. 52.

Interest

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to a repayment, it follows that no interest is payable.

ORDER

20The applicant is not entitled to a repayment for income replacement benefits paid, and it is not entitled to interest. This application is dismissed.