Citation: TD General Insurance Company v. Srikanth, 2025 ONLAT 23-009669/AABS

Licence Appeal Tribunal File Number: 23-009669/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

Vettivel Srikanth

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Hodson Harding, Counsel

For the Respondent:

Vettivel Srikanth, Respondent (no submissions filed)

HEARD:

By way of written submissions

OVERVIEW

1Vettivel Srikanthm, the insured, was involved in an automobile accident on July 30, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The insurer, TD Insurance Company, has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”), for repayment of income replacement benefits (“IRBs”) paid to the insured.

ISSUES

2The issues in dispute are:

i. Is the insurer entitled to repayment of IRBs in the amount of $15,069.57, paid from October 1, 2021 to July 29, 2022?

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

RESULT

3I find that pursuant to s. 52 of the Schedule, the insurer is entitled to repayment of IRBs in the amount of $15,069.57, with interest.

PROCEDURAL ISSUES

Notice of the Hearing

4I 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 submissions.

5Proceeding 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.

6The Case Conference Report and Order (“CCRO”), dated March 15, 2024, states that the insured was not in attendance at the case conference, despite being served with a Notice of the case conference. The CCRO further notes that the insured did not file a case conference summary in compliance with Rules 14.2 and 20.4 of the Licence Appeal Tribunal Rules, 2023.

7On March 21, 2024, the Tribunal emailed a Notice of Written Hearing to the parties, advising that a written hearing would be held on November 1, 2024.

8On September 25, 2024, the Tribunal sent an email to all parties as a reminder that submissions were due for the upcoming written hearing on November 1, 2024.

9On October 1, 2024, the insurer filed and served its submissions in compliance with the CCRO.

10On October 15, 2024, the Tribunal sent an email to the insured as a reminder that his submissions due date is approaching for the upcoming written hearing on November 1, 2024.

11On October 21, 2024, the Tribunal sent an email to the insured as a second reminder that submissions were due for the upcoming written hearing on November 1, 2024.

12The insured did not file any submissions.

13Given 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

Wilful misrepresentation and IRB repayment

14I find that the insurer is entitled to the repayment of $15,069.57 relating to its payment of IRBs to the insured during the period of October 1, 2021 to July 29, 2022, as a result of the insured’s wilful misrepresentation regarding his pre-accident employment and income.

15Section 52(1) 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.”

16Section 52(3) of the Schedule restricts the requests for repayment to a period of no longer than 12 months following the error, unless it was paid to the insured person as a result of wilful misrepresentation or fraud.

17The insurer submits that an IRB was paid to the insured following the accident, based on the insured’s wilful misrepresentation about his pre-accident employment and income. An IRB was paid at the rate of $400.00 per week, from October 1, 2021 to July 29, 2022, in the total amount of $15,069.57. The IRB was based on the insured’s representation following the accident, that he was an employee at Unipro Maintenance Ltd. (“Unipro”), working as a janitor, and the Employer’s Confirmation Form (“OCF-2”), dated September 24, 2021. The insured advised the insurer that he began working at Unipro on May 11, 2021 and ceased working there on July 29, 2021, the day before the accident. The insurer later discovered that the employment and income information provided by the insured were inaccurate, following a discussion with a manager at Unipro on June 9, 2023. The manager confirmed that the insured had never been an employee of Unipro and the supervisor listed on the OCF-2 was also never an employee at Unipro. Email correspondence dated June 9, 2023 and June 17, 2023, confirm the discussion between the insurer and the manager at Unipro. A Notice of the repayment was sent to the insured on June 15, 2023. On July 28, 2023, the insured’s legal representative, advised that she was no longer representing the insured.

18The insurer submits that to date, the insurer has not received any repayment of IRBs, although duly requested. The insurer further submits that the insured has not responded to any communication since the applicant commenced its application to the Tribunal and did not attend the case conference which took place on February 29, 2024.

19Based on the above, I find on a balance of probabilities that the insured wilfully misrepresented his employment status and income when he applied for and began receiving IRBs. I find that the correspondence from Unipro confirms that the applicant was never employed by Unipro and therefore misrepresented his employment and income to the insurer. No response was provided by the insured.

20As I have found that the insured wilfully misrepresented his employment status and income, as set out above, the 12-month notice period in s. 52(3) of the Schedule, does not apply.

21Given that the insurer paid IRBs to the insured for the period from October 1, 2021 to July 29, 2022 on account of his misrepresentation of his employment status and income, it follows that the insurer is entitled to repayment of IRBs, for a total of $15,069.57.

Interest

22Section 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.

23As 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

24For the reasons set out above, pursuant to s. 52 of the Schedule, the insurer is entitled to repayment of IRBs in the amount of $15,069.57, plus applicable interest.