Citation: Primmum Insurance Company v. Byrne, 2026 ONLAT 24-011775/AABS

Licence Appeal Tribunal File Number: 24-011775/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:

Primmum Insurance Company

Applicant

and

Michele Byrne

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Anca Zgardau, Counsel

For the Respondent: Ardi Deti, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Michele Byrne, the respondent, was involved in an automobile accident on August 9, 2023, and received benefits from the applicant, Primmum Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant claims repayment of Income Replacement Benefits ("IRBs") paid to the respondent 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 applicant entitled to a repayment of $4,228.57 relating to the payment of IRBs for the period of February 24, 2024 to September 19, 2024?

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

RESULT

3I find that the applicant is entitled to a repayment under s. 52 of the Schedule in the amount of $4,228.57, plus applicable interest, as a result of its overpayment of IRBs to the respondent. No costs are ordered.

ANALYSIS

IRB Repayment

4Section 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 wilful misrepresentation or fraud.

5Pursuant to s. 52(2), if a person is liable to repay an amount,

a) An insurer shall give the person notice of the amount that is required to be repaid; and

b) The insurer may, if the person is receiving an IRB, give the person notice that the insurer intends to collect the amount by reducing each subsequent payment of the benefit by up to 20% of the amount that would otherwise be the amount of the benefit.

6Section 52(4) provides that an insurer that has given a notice referred to in clause (2)(b) may obtain repayment in the manner described in the notice.

7The applicant claims a repayment of IRBs for the period from November 24, 2023 to January 15, 2024, in the amount of $4,228.57. There is no dispute between the parties that a repayment is owing. The disagreement is over the method of repayment.

8By letter dated February 2, 2024, the applicant requested repayment of IRBs in the amount of $4,228.57, in accordance with s. 52 of the Schedule. The respondent was advised to contact the applicant to discuss her plans to reimburse this amount. Follow-up letters were sent on April 3, 2024, May 14, 2024, July 10, 2024, August 28, 2024. No response was received from the respondent.

9On September 18, 2024, the applicant submitted its application to the Tribunal for repayment of IRBs. A Case Conference took place on January 8, 2025, and the matter was set down for a written hearing.

10By email dated April 7, 2025, the respondent acknowledged that an overpayment has occurred, and she is willing to repay it. Multiple correspondence between the parties has been provided discussing the proposed repayment schedule as well as settlement of the claim. These emails continue until July 22, 2025. The parties did not reach agreement about the proposed payment schedule.

11The applicant requests an Order that the amount of $4,228.57 be paid by the respondent, representing repayment of overpaid IRBs.

12The respondent submits that she has made attempts to resolve the issue in dispute prior to the scheduled hearing and has set out the details of her correspondence with the applicant. She argues that her proposed repayment schedule is within her current means and complies with s. 52(4) of the Schedule. She argues that the applicant's proposed repayment schedule is nearly 30% of the net weekly IRB, well about the statutory cap. She further argues that the applicant's demanded repayment terms contravene the 20% ceiling in the Schedule.

13The respondent submits the applicant has maintained a proceeding before the Tribunal solely to obtain relief on an issue which she has already agreed to in principle. She argues that despite her ongoing willingness to comply with a reasonable repayment agreement, the applicant has refused and instead pursued an unnecessary written hearing. She therefore claims that the within application is frivolous and moot and offends both procedural fairness and the consumer-protection purpose of the Schedule. The applicant submits that the Tribunal should dismiss the within application under Rule 3.4, deny the request for interest and compensate her through costs and, if warranted, a special award.

14I find that while the respondent submits that this matter is a waste of the Tribunal's time because the issue of repayment timing can be resolved by private agreement, this is clearly not the case. Despite attempts of negotiation between the parties, the fact remains that the parties are not able to resolve this dispute. The Tribunal's role is not to assess the party's settlement negotiations to determine if the offers are reasonable. It is the role of the Tribunal to determine the issues in dispute in an application and to make a determination. The issue in this application is repayment of IRBs. To date, no repayment has been made by the respondent and therefore the dispute remains active. I therefore deny the respondent's request to dismiss the within application. I do not find that this proceeding is frivolous, vexatious or commenced in bad faith.

15While the respondent argues that s. 52(4) of the Schedule provides that the monthly repayment should be 20 percent of the monthly IRB paid, I do not agree with the respondent's interpretation. In my view, the wording of s. 52(2)(b) is clearly permissive and not mandatory, and contingent on the ongoing payment of IRBs. The provision states that the insurer "may", if the person is receiving an IRB, give notice that it intends to collect the amount to be repaid by reducing the person's IRBs. This section therefore may apply when an IRB is being paid to the applicant and the overpayment is being repaid by way of IRB deductions. In this matter, it is undisputed that the IRBs are not presently being paid and therefore s. 52(2)(b) does not apply. The applicant does not cite any authority or provide caselaw in support of her argument that 20% is the amount to be used for monthly repayments. I find that there is nothing in s. 52 which gives guidance on the amount of a monthly repayment when no IRB is being paid.

16I note the respondent's argument that the Schedule is consumer protection legislation and that she can only afford her proposed repayment schedule. However, I do not find that the consumer protection mandate of the Schedule permits me to create a remedy in contravention of the Schedule. Section 52(1) states that a person "is liable to repay" an IRB overpayment. I do not find that I have the discretion or authority to create terms for repayment that are not available under the Schedule. I therefore find that the applicant has established that it is entitled to a lump sum repayment of $4,228.57.

The applicant is entitled to interest on the IRB repayment

17Section 52(5) of the Schedule states that an insurer may charge interest on the outstanding amount of IRB overpayment starting on the 15th day after it gave notice to the claimant of the amount outstanding and ending on the day the repayment is received in full. Interest is calculated at the bank rate in effect on the 15th day after notice is given.

18The applicant requests interest on the repayment.

19The respondent submits that s. 52(5) of the Schedule confers discretion on the Tribunal where paying interest would contradict equity or statutory purpose due to the insurer's own conduct in delaying repayment. The applicant argues that any lapse between the notice on February 2, 2024 and repayment is directly attributable to the respondent's refusal to accept her proposed repayment schedule. The respondent submits that the Tribunal should therefore exercise its discretion to refuse interest entirely, or at minimum disallow interest for the period during which the applicant insisted on an unlawful schedule. The respondent also submits that granting interest would penalize her when she promptly acknowledged responsibility and offered reasonable repayment plans. She relies on the decision in Unica Insurance Inc. v. K.B., 2020 CanLII 3550 (ON LAT) ("Unica"), where interest was reduced when the insurer contributed to delay by issuing a defective notice.

20I find that interest is due in accordance with s. 52(5) of the Schedule.

21I find that the respondent has not directed me to any authority or caselaw in support of her position that the Tribunal has the discretion to deny an insurer interest under s. 52(5) of the Schedule. From my review of s. 52(5), I find that the use of the word "may" means that an insurer may choose, but is not required, to charge interest on a repayment amount. Given that it is undisputed that the applicant is entitled to an IRB repayment in the amount of $4,228.57, it follows that it is entitled to interest payable pursuant to the bank rate as per sections 52(5) and 52(6) of the Schedule.

22While the respondent refers to the case of Unica, I am not bound by previous Tribunal decisions. However, upon review of this decision, the adjudicator awarded the insurer interest where it was found that overdue attendant care benefits were owing. There is no indication that interest was reduced as submitted by the respondent. I therefore do not find support for the respondent's position in this case.

23In addition, while the respondent submits that she should not pay interest during the period in which she was negotiating with the applicant, again it is not within the Tribunal's jurisdiction to review settlement negotiations between parties to determine if the parties acted reasonably. I find that as the overpayment has still not been paid, the applicant is entitled to interest.

Costs

24The respondent seeks costs pursuant to Rule 19.1 and 19.2. As I have found that the applicant is entitled to an IRB repayment and interest, the respondent has not proven entitlement to costs.

ORDER

25For the reasons outlined above, I find:

i. The applicant is entitled to repayment under s. 52 of the Schedule in the amount of $4,228.57, plus applicable interest, as a result of its overpayment of IRBs to the respondent; and

ii. No costs are ordered.