Licence Appeal Tribunal File Number: 23-008868/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
Theodore Cranham
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Tebogo Fisher-Phala, Counsel
For the Respondent:
Frank E. McNally, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Theodore Cranham, (the “respondent”), was involved in an automobile accident on November 12, 2022, 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”). TD now seeks the repayment of the Income Replacement Benefits (“IRB”) paid from December 21, 2022 to January 17, 2023 under s. 52(1)(c) of the Schedule.
ISSUES
2The issues in dispute are:
i. Is TD entitled to a repayment of $1,428.58 relating to its payment of IRB for the period of December 21, 2022 to January 17, 2023?
ii. Is TD entitled to interest on any overdue payment of benefits?
RESULT
3I find that TD is entitled to a repayment for IRB paid in the amount of $1,428.58, plus applicable interest in accordance with s. 52(5) of the Schedule.
ANALYSIS
Can the Tribunal Proceed in the Absence of the Respondent’s Submissions?
4The respondent did not provide written submissions for this hearing. Accordingly, I must be satisfied that the respondent received notice of this written hearing, in compliance with the Statutory Powers Procedure Act (“SPPA”) R.S.O. 1990, c. S.22.
5Section 7(2) of the SPPA allows this Tribunal to proceed with a scheduled written hearing in the absence of a party if it is satisfied that the absent party was given proper notice of the written hearing. In reviewing the Tribunal’s file, I find that the respondent and his counsel were served notice, by way of email, of the written hearing. Therefore, in accordance with s. 7(2) of the SPPA, the respondent is not entitled to any further notice in the proceeding, and I may proceed in his absence.
TD is entitled to repayment in the amount of $1,428.58
6I find that TD is entitled to a repayment in the amount of $1,428.58 because the respondent received employment income during that time period which is deductible from the amount of IRB paid. Therefore, there was an overpayment of $1,428.58.
7According to section 7(3)(a), the Schedule allows the insurer to deduct 70% of any gross employment income received after the accident by the insured person from the amount of an IRB payable.
8Section 52 of the Schedule concerns the repayment of benefits. Subsection 52(1)(c) of the Schedule provides that an insured shall repay to the insurer any IRBs received by the insured that are deductible under the regulation. If a person is required to repay an amount to an insurer under s. 52, the insurer shall give notice of the amount that is required to be repaid within 12 months after the payment of the amount that is to be repaid.
9TD argues that on December 5, 2022, it approved the respondent’s IRB from November 20, 2022 in the bi-weekly amount of $800.00. It argues that on February 22, 2023, it sent a letter to the respondent advising that based on his post-accident pay stubs, there was an overpayment of IRB in the amount of $1,428.58 for the time period of December 21, 2022 to January 17, 2023.
10Accordingly, TD argues that it is entitled to a repayment in the amount of $1,428.58 because under s. 7(3)(a), 70% of gross employment income received after the accident is deductible from an IRB, therefore under s. 52(1)(c), there has been an overpayment.
11I find that TD is entitled to a repayment of IRB for the time period of December 21, 2022 to January 17, 2023 under s. 52(1)(c) because the respondent received gross employment income during that time period, which is deductible from the amount of IRB paid in accordance with s. 7(3)(a). Indeed, TD has tendered a copy of an IRB calculation report which indicates that based on the respondent’s paystubs, the respondent received gross employment income in the amounts of $1,387.65 from December 24, 2022 to January 6, 2023, and $1,787.02 from January 7, 2023 to January 20, 2023. In its letter dated February 22, 2023, TD calculated the overpayment to be $628.58 from December 21, 2022 to January 3, 2023 and $800.00 from January 4, 2023 to January 17, 2023, for a total amount of $1,428.58.
12The respondent has not provided submissions to dispute that he received gross employment income following the accident or the amount of repayment being claimed. Therefore, I find that TD is entitled to a repayment of IRB in accordance with s. 52(1)(c) because there has been an overpayment of the amount of $1,428.58 from December 21, 2022 to January 17, 2023.
13TD submits, and I agree, that it provided proper notice to the respondent, under ss. 52(2) and (3) when it requested repayment. On review of the letter dated February 22, 2023, I find TD provided notice within twelve months after payment of the amount that is to be repaid (IRB payments were made from December 21, 2022 to January 17, 2023). The letter clearly states that there has been an overpayment of IRB and therefore repayment was being sought, the amount of repayment sought ($1,428.58, being the amount in dispute), and that interest was being sought.
14In conclusion, I find that TD is entitled to repayment in the amount of $1,428.58 because there was an overpayment in this amount of IRB as the respondent returned to work, and the gross employment income is deductible from the amount of IRB paid.
Interest
15Section 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 15th 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 15th day after the notice is given.
16Having found that TD is entitled to repayment, it follows that it is also entitled to interest on the amounts to be repaid under s. 52(5) of the Schedule.
ORDER
17For the reasons outlined above, TD is entitled to repayment for the IRB paid in the amount of $1,428.58, plus applicable interest in accordance with s. 52(5) of the Schedule.
Released: April 24, 2025
__________________________
Tanjoyt Deol
Adjudicator