Licence Appeal Tribunal File Number: 23-010636/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:
Aviva Insurance Company of Canada
Applicant
and
Shenaqua Grant
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Geoffrey L. Keating, Counsel
For the Respondent:
Loreto Scarola, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Shenaqua Grant (the “respondent”) was involved in an automobile accident on January 29, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The respondent received Income Replacement Benefits (“IRB”) from Aviva Insurance Company of Canada (the “applicant”).
2The applicant seeks repayment of the IRB from the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
3In this case, the parties do not dispute that the applicant overpaid the respondent an IRB in the amount of $16,400.00 from October 9, 2022, to July 21, 2023. However, the respondent argues the applicant is barred from seeking a repayment because its notices for repayment of the IRB are deficient, pursuant to s. 52(2) of the Schedule.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to a repayment of $16,400 relating to its payment of an income replacement benefit for the period of May 27, 2022, to August 4, 2023?
ii. Is the applicant entitled to interest on any overdue payment?
RESULT
5The applicant is entitled to a repayment of $16,400.00 relating to its payment of an IRB for the period of October 9, 2022, to July 21, 2023. Since the IRB is repayable, interest is also payable.
ANALYSIS
IRB repayment and notices
6I find that the applicant is entitled to the repayment of the IRB in the amount of $16,400.00 from the respondent for the period of October 9, 2022, to July 21, 2023. The respondent has not shown that the applicant’s notices of repayment are in breach of s.52 of the Schedule.
7Section 52 of the Schedule permits an insurer to seek repayment for an overpayment of income replacement benefits if the recipient was disqualified from receiving those amounts. Section 52(3) states that repayment cannot be pursued if the insurer fails to provide notice of the overpayment within twelve months of the payment unless the overpayment was a result of wilful misrepresentation or fraud. In this case, the onus is on the applicant to prove that it is entitled to the repayment.
8The applicant submits that it started paying $400.00 weekly in IRB payments to the respondent when she stopped working as a result of her accident-related injuries on May 10, 2022. The applicant submits that the respondent returned to work on October 9, 2022, however, she did not notify the applicant of her return. The applicant continued to pay the respondent an IRB in the amount of $400.00 weekly until July 21, 2023. This represents approximately nine months of IRB payments being made to the respondent while she was working.
9The applicant submits that the IRB was paid in error to the respondent for the period of October 9, 2022, to July 21, 2023, because it was under the mistaken understanding that she had not yet returned to work. Therefore, the applicant argues the benefits are repayable in accordance with s.52(1)(c) of the Schedule.
10The respondent argues that the applicant’s notices are improper and should not be considered by the Tribunal. She relies on s.52(2)(a) to support this position, namely that the repayment notices inaccurately specify the amount that the applicant sought repayment. The respondent argues that the applicant’s notice, dated July 18, 2023, mistakenly states the period of IRB paid from February 12, 2022, to May 26, 2023, to be $24,047.16. The respondent argues that a second notice of overpayment sent by the applicant, dated August 9, 2023, is also improper, because it lists the IRB as being paid from February 12, 2022, to July 21, 2023, and that this notice informs the respondent that the applicant has paid her $24,847.16 in IRB payments, and it requests the repayment of this same amount.
11The respondent argues that the applicant had all the necessary information to specify the correct amount to be repaid for the correct time frame. She responded to the applicant’s request for medical and employment records under s.33, by email on April 18, 2024. Further, the respondent’s employment file was submitted to the applicant on May 15, 2024, and her updated paystubs were provided on June 5, 2024. The respondent argues that, as of June 5, 2024, the applicant ought to have been able to quantify the quantum of her IRB.
12I find that the applicant has shown that the respondent is liable to re-pay the IRB from October 9, 2022, to July 21, 2023, in the amount of $16,400.00. Specifically, I find that the notices provided by the applicant are compliant with s. 52(2).
13While its notices are confusing from a quantum and time period perspective, I find that this is because the applicant relied on the best information available at the time the repayment notices were made (i.e., on July 18, 2023, and then August 9, 2023). The respondent was not forthcoming with her return-to-work dates or her pay stubs, which hindered the applicant’s ability to calculate the accurate quantum and dates of the repayment of the IRB.
14In addition, the applicant was hindered in its ability to adjust the file because the respondent had withdrawn her consent for the applicant to contact her employer and could only verify the exact overpayment amount as of May 15, 2024, the day the applicant received the respondent’s employment file.
15Additionally, the respondent had only provided her updated pay stubs on June 5, 2024, which limited the applicant’s ability to adhere with s.52, because the applicant is required to provide a repayment notice within twelve months. In the alternative it would have to wait beyond twelve months to issue the notice based on complete evidence. By waiting for complete evidence in this case the applicant would forfeit its right to seek re-payment, unless it raised willful misrepresentation or fraud, which the applicant is not raising in this matter.
16Based on the respondent’s pay stubs disclosed on June 5, 2024, the applicant was able to correctly identify the quantum of the overpayment, as well as the correct dates that the IRB was payable. The respondent does not argue the quantum or the dates of the repayment, but only argues that the notices of July 18, 2023, and August 9, 2023, are non-compliant. Having found that the notices were produced in accordance with s. 52(2), given the information provided to the applicant from the respondent, I accept the applicant’s calculation of the quantum of the repayment of the IRB to be $16,400.00 from October 9, 2022, to July 21, 2023.
17In addition, I find that the applicant’s notices of repayment contained correct amounts for repayment based on the information available to it at the time the notices were issued. The notices identified that there had been an overpayment of the IRB, the period over which the IRBs were initially paid, the repayment that was sought in accordance with s.52 and the amount of repayment sought.
18While the amount of repayment sought and period in the notices is confusing, as noted above the respondent’s pay stubs/employment file would have brought clarity had they been disclosed in order to adjust the file correctly by identifying the amount of the overpayment and the period of entitlement, an avoidable situation.
19I find, on a balance of probabilities, that the applicant is entitled to the repayment of the IRB from October 9, 2022, to July 21, 2023, in the amount of $16,400.00.
Interest
20Interest applies to repayments, pursuant to s. 52(5) of the Schedule. Having found that the IRB is repayable, interest is also payable to the applicant in accordance with s. 52(5).
ORDER
21It is ordered that:
i. The applicant is entitled to a repayment of $16,400.00 relating to its payment of the IRB for the period of October 9, 2022, to July 21, 2023.
ii. The applicant is entitled to interest, pursuant to s.52(5) of the Schedule.
Released: August 20, 2025
John Mazzilli
Adjudicator