Licence Appeal Tribunal File Number: 23-010505/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:
Thanigasalam Thevapalan
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Paul Giuliano, Counsel (No submissions were filed)
For the Respondent: Crystal Law, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Thanigasalam Thevapalan, the applicant, was involved in an automobile accident on June 19, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company and 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 $20,297.71 relating to its payment of an income replacement benefit (“IRB”) for the period of June 27, 2020, to August 17, 2021?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3In its submissions, the respondent stated that it is seeking a repayment of IRBs in the amount of $20,297.71, plus interest from September 2, 2023, and not the amount of $24,296.64 as indicated on the Case Conference Report and Order (“CCRO”) dated March 21, 2024. However, the CCRO does not list whether the respondent is entitled to interest on any overdue payment of benefits as an issue in dispute.
4The CCRO dated March 21, 2024, indicates that the issues in Tribunal file number 23-011919/AABS are combined with the issues listed in file number 23-010515/AABS. Although, the issue of IRB repayment is listed in the CCRO, the issue of whether the respondent is entitled to interest on any overdue repayment of benefits is not listed. The respondent did not bring a motion seeking to add the issue of interest after receiving the CCRO dated March 21, 2024. Therefore, in the interests of procedural fairness to the applicant, the issue of whether the respondent is entitled to interest is not added, because the applicant did not receive notice that it is an issue in dispute.
RESULT
5The respondent is entitled to repayment from the applicant for the IRBs in the amount of $20,297.71.
6The applicant is not entitled to interest or an award.
ANALYSIS
NOTICE OF HEARING WAS PROVIDED
7The applicant did not serve or file written hearing submissions. No explanation was provided by the applicant. The respondent filed its submissions on September 10, 2024, 30 calendar days before the date of the written hearing, scheduled for October 11, 2024.
8Both parties participated in a case conference that was held on March 4, 2024. This resulted in a Case Conference Report and Order (“CCRO”) dated March 21, 2024, that combined Tribunal file numbers 23-011919/AABS and 23-010505/AABS and set this matter down for a videoconference hearing and separate preliminary issues hearing. The applicant wrote to the Tribunal withdrawing issues 1-8 listed in the CCRO, resulting in order dated April 11, 2024, vacating the separate preliminary issues hearing. The respondent brought a motion to transfer the matter to a written hearing on issues 9-11 listed on the CCRO, on consent, resulting in motion order dated July 9, 2024, which scheduled the written hearing for October 11, 2024. On July 11, 2024, and July 18, 2024, the motion order dated July 10, 2024, and Notice of Written Hearing (“NoWH”) dated July 18, 2024, was sent via email to the applicant, the applicant’s counsel, the respondent, and the respondent’s counsel.
9The motion order dated July 9, 2024, indicates that the respondent must serve and file its written hearing submissions no later than 30 calendar days before the scheduled hearing, or by September 11, 2024, and the applicant must serve and file his written hearing submissions no later than 14 calendar days before the written hearing, or by September 27, 2024. The respondent’s reply was due 7 calendar days prior to the scheduled hearing.
10The applicant did not file submissions and evidence in accordance with the dates established by the motion order and NoWH. There is no indication in Tribunal’s case management records that the applicant contacted the Tribunal to request an extension of time to file submissions.
11Further, there is no indication that the applicant’s contact information was incorrect in Tribunal records. He has been represented by counsel and as set out above notice of the hearing was sent to his counsel on July 11, 2024, and July 18, 2024. Further, if the applicant’s contact information changed during the course of the application, he had an obligation under Rule 4.4 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) to provide the correct contact information to the Tribunal in writing.
12Given the above, I am satisfied that both parties received notice for this hearing on July 11, 2024, and July 18, 2024, as required by ss. 6(1), 6(2) and 6(5) of the Statutory Powers Procedures Act, RSO 1990, c.S.22 (“SPPA”). Therefore, I find that the Tribunal has met its notice obligations, and the written hearing will proceed. The Tribunal may proceed with a written hearing where a party fails to participate, under s. 7(2) of the SPPA where it is satisfied that the absent party received proper notice of the written hearing.
IRB Repayment
13I find that the respondent is entitled to an IRB repayment in the amount of $20,297.71 due to the respondent’s error making duplicative IRB payments for the period from June 27, 2020, to August 17, 2021.
14Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person shall 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 willful misrepresentation or fraud. Subsection 52(1)(c) of the Schedule provides that an insured shall repay to the insurer any IRBs to the extent of any payments received by the insured that are deductible from those benefits under this 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.
15The respondent submits that it obtained an IRB calculation report dated April 14, 2023, from Price Waterhouse Cooper (”PWC”). The respondent submits that on or about April 14, 2023, it made an IRB payment in the amount of $50,391.69 for the period from June 27, 2020, to April 21, 2023. The respondent submits that PWC calculated an IRB at variable rates, as follows:
a. For the period from June 27, 2020, to December 31, 2020, at a rate of $340.74 per week;
b. For the period from January 1, 2021, to December 31, 2021, at a rate of $340.72; and,
c. For the period from January 1, 2022, to April 14, 2023, at a rate of a rate of $345.21 per week.
16The respondent also submits that it had already paid an IRB in the amount of $397.22 per week for the period from June 26, 2020, to August 17, 2021. Therefore, the respondent submits there was a duplication in IRB payments for the period from June 27, 2020, to August 17, 2021.
17The respondent submits that it discovered an error in the IRB payment and sent the applicant a notice letter dated August 18, 2023, advising there is an overpayment in the amount of $24,296.64 for the period from June 27, 2020, to August 17, 2021. The respondent makes no submissions regarding how the repayment was calculated.
18The respondent submits that it sent another notice letter dated September 9, 2024, to the applicant with the revised IRB repayment amount of $20,297.71. The respondent submits that the revised IRB repayment amount was calculated based on the PWC report, for the period from June 27, 2020, to December 31, 2020, at a rate of $340.74 per week, totaling $9,151.30; and for the period from January 1, 2021, to August 17, 2021, at a rate of $340.72 per week, totaling $11,146.41, or $20,297.71.
19I find that the respondent made an error on April 14, 2023, by paying an IRB for the period from June 27, 2020, to August 17, 2021, totaling $20,297.71. I find that the respondent provided notice of repayment on August 18, 2023, which was within 12 months of the duplication in IRB payment on April 14, 2023. Although the respondent initially requested repayment in the amount of $24,296.64 for the period from June 27, 2020, to August 17, 2021, it subsequently reduced the amount of IRB repayment based on the PWC calculation rates.
20I find that the respondent is entitled to the IRB repayment in the amount of $20,297.71 for the period from June 27, 2020, to August 17, 2021, (59 weeks, 3 days) at a rate of $340.74 per week from June 27, 2020, to December 31, 2020; and at a rate of $340.72 from January 1, 2021, to August 17, 2021. The respondent’s notice letter complies with the relevant section 52 criteria by identifying that the IRB was overpaid, the time period for which the IRB repayment was being sought, the amount of the repayment being sought, and the notice itself was sent within the 12-month notice period.
Interest and an award
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
22Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
23The applicant made no submissions regarding his entitlement to interest or an award. Therefore, I find that the applicant is not entitled to interest or an award.
ORDER
24For the reasons set out above, I find that:
i. Pursuant to s. 52 of the Schedule, the respondent is entitled to repayment for the IRBs paid in the amount of $20,297.71.
ii. The applicant is not entitled to interest or an award, and the application is dismissed.
Released: May 2, 2025
__________________________
Lisa Holland
Adjudicator