CAA Insurance Company v. Lapadat, 2025 CanLII 75775

Citation: CAA Insurance Company v. Lapadat, 2025 ONLAT 23-008037/AABS

Licence Appeal Tribunal File Number: 23-008037/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:

CAA Insurance Company

Applicant

and

Valerie Lapadat

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Priyanka Monpara, Counsel

For the Respondent: Sam Elbassiouni, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Valerie Lapadat, the respondent, was involved in an automobile accident on February 1, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant, CAA Insurance Company, sought repayment of a benefit from the respondent in the amount of $2,854.40, but has not received repayment. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issue in dispute is:

i. Is the applicant entitled to a repayment of $2,845.40 for occupational therapy services, in a treatment plan dated June 9, 2022?

RESULT

4I find that:

i. The applicant is entitled to a repayment of $2,845.40.

PROCEDURAL ISSUES

Breach of Rule 14

5I find that the applicant has not breached Rule 14 of the Licence Appeal Tribunal Rules (the “Rules”).

6Rule 14.4 provides that all settlement discussions in a case conference, and documents put forward solely for the purpose of settlement, are confidential. Settlement discussions are not to be relied on by either party in a hearing unless the parties consent.

7The respondent alleges that the applicant included confidential information that he shared with it during the case conference at paragraphs 12 and 18 of its written submissions. The respondent asks that the applicant’s application be dismissed in its entirety or, in the alternative, that paragraphs 12 and 18 of its written submissions be disregarded by the Tribunal.

8Paragraphs 12 and 18 of the applicant’s submissions refer to the fact that the parties attended a case conference and include statements that the respondent acknowledged cashing the cheque and that the respondent stated that his wife cashed the cheque. A copy of the Case Conference Report and Order is attached to the written submissions.

9The applicant denies sharing any confidential information related to settlement discussions in its written submissions. It submits that only settlement discussions, rather than the entirety of the case conference, are subject to the rule respecting confidentiality.

10I find that the respondent acknowledges in his written submissions that he received the cheque and that he and his “familial support team” cashed the cheque. Therefore, the issue has been rendered moot because the respondent has included the same information contained in the disputed paragraphs in his own written submissions.

11Therefore, I deny the orders sought by the respondent.

Failure to produce certain documents

12The respondent alleges that the applicant did not produce a copy of the cheque that was issued to the respondent in error on September 11, 2022 and asks that the application be dismissed in its entirety as the document is the foundation of the applicant’s claim. The respondent further alleges that certain correspondence between the applicant and the respondent’s previous counsel were not produced in accordance with the Case Conference Report and Order.

13The applicant submits that it did produce a copy of the cheque and relies on correspondence dated April 19, 2024 to prove that it produced the document in accordance with the time frame set out in the Case Conference Report and Order. The applicant submits that it produced the correspondence dated February 10 and 13, 2023 and April 14, 2023 in advance of the case conference as part of the Case Conference Summary Brief.

14I find that the applicant produced a copy of the cheque to the respondent’s current counsel on April 19, 2024, as evidenced by the cover letter addressed to the respondent’s counsel enclosing the document. April 19, 2024 was the deadline set out in the Case Conference Report and Order.

15I deny the order sought by the respondent with respect to the copy of the cheque.

16I reviewed the applicant’s Case Conference Summary Brief and I find that there are no documents attached to the copy that was filed with the Tribunal. The applicant directed me to no evidence that it produced the correspondence dated February 10 and 13, 2023 and April 14, 2023 by the deadline set out in the Case Conference Report and Order. However, I did not consider these documents in making my decision, therefore, I find the timing of their production to be moot.

ANALYSIS

Repayment of amount for occupational therapy services

17I find that the applicant is entitled to a repayment of $2,845.40 that it paid to the respondent in error for occupational therapy services proposed in a treatment plan dated June 9, 2022.

18Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer”, the insured person or any other person, or as a result of a wilful misrepresentation or fraud.

19Section 52(2) and (3) provide the timelines for repayment requests. The insurer must give the person notice of the amount that is required to be repaid. If notice 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.

20The burden is on the applicant to prove, on a balance of probabilities, that it is entitled to a repayment under s. 52.

21The applicant submits that it approved the treatment plan for occupational therapy services dated June 9, 2022 in the amount of $2,845.40. Treatment was incurred and it received the OCF-21 invoice from the service provider on August 9, 2022. The applicant submits that it issued a cheque in the amount of $2,845.40 on September 11, 2022. This cheque was issued to the respondent, in error, rather than to the service provider. The cheque was cashed on September 21, 2022. The applicant submits that it only became aware of its error on February 10, 2023, when the service provider notified it that the payment of the OCF-21 was outstanding. The applicant submits that it immediately notified the respondent’s counsel of the error and requested repayment of the funds or, alternatively, that the funds be forwarded directly to the service provider.

22The applicant further submits that when the respondent did not respond to its request for repayment, it issued a formal notice to the respondent requesting repayment, dated May 4, 2023. On the same date, the applicant paid the amount of $2,845.40 to the service provider. The applicant submits that its letter of May 4, 2023 meets the notice requirements of s. 52. In support of its submissions, the applicant relies on a transaction image from its bank records, which shows a copy of the cheque issued to the respondent and the date the cheque cleared from the applicant’s account, redacted log notes, correspondence between the applicant and the respondent’s previous counsel and the notice letter dated May 4, 2023.

23The respondent acknowledges in its written submissions that he received the cheque without an accompanying cover letter or explanation of benefits and, because he had not received his non-earner benefits (NEB) in July 2022, he assumed the cheque was for his NEB. He acknowledges that he and his “familial support team” cashed the cheque on September 19, 2022. The respondent submits that the applicant is not entitled to repayment of the amount because the applicant has not proven that the funds were paid to him in error, the respondent is a vulnerable individual who is being assessed for capacity issues as well as catastrophic impairment and the respondent has no means of repaying the amount of $2,845.40 to the applicant.

24I find that the timing of the cheque that was issued to the respondent, in combination with the amount of the cheque, confirms the applicant’s submission that the cheque was issued to the respondent in error, when it should have been issued to the occupational therapy service provider who submitted the treatment plan dated June 9, 2022 and the subsequent related OCF-21. I further find, based on the respondent’s acknowledgment and the banking transaction documents, that the cheque was cashed on September 19, 2022 by the respondent or by one of his family members on his behalf.

25The applicant’s log notes confirm that it sent a formal letter to the respondent requesting repayment of the $2,845.40 on May 4, 2023. The log notes further confirm that on May 4, 2023, the applicant paid the invoice of “NCCO Rehab” in the amount of $2,845.40. I find that this is further proof that the cheque for $2,845.40 was issued to the respondent in error.

26I further find that the applicant’s letter to the respondent dated May 4, 2023 meets the notice provisions set out in s. 52 because it was sent to the respondent within 12 months of the payment made in error and it specifies the amount to be repaid. I find that the letter in question clearly explains the error the applicant made, states the amount of the repayment required and the date by which the applicant was seeking repayment.

27I find that the potential vulnerability of the respondent and the respondent’s ability to repay the amount are not factors that are relevant to determining the applicant’s entitlement to a repayment under s. 52 of the Schedule.

28Therefore, I find that the applicant has proven, on a balance of probabilities, that it is entitled to a repayment of $2,845.40 pursuant to s. 52 of the Schedule.

Interest

29Section 52(5) of the Schedule provides that the insurer may charge interest on the outstanding balance to be repaid for the period starting on the 15th day after notice is given.

30I find that the notice letter dated May 4, 2023 did not indicate that the applicant intended to charge interest on the outstanding balance. Similarly, the Case Conference Report and Order of April 17, 2024 did not indicate that the applicant was seeking interest on the outstanding balance. Therefore, I find that the applicant is not entitled to interest.

ORDER

31I find that:

i. The applicant is entitled to a repayment of $2,845.40.