Licence Appeal Tribunal File Number: 24-011202/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
Karamvir Kaur
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Andy Smith, Counsel
For the Respondent:
Kateryna Vlada, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Karamvir Kaur, the respondent, was involved in an automobile accident on March 14, 2023, and received benefits from the applicant Aviva Insurance Company of Canada, 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 $8,841.98 relating to the payment of IRBs for the period of March 22, 2023 to September 23, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is entitled to repayment under s. 52 of the Schedule in the amount of $8,841.98, plus applicable interest, as a result of its overpayment of IRBs to the respondent.
ANALYSIS
Repayment of Income Replacement Benefits
4The respondent is seeking repayment of IRBs totaling $8,841.98, paid between March 22, 2023 and October 27, 2023.
5Pursuant to s. 52(1) of the Schedule, a person is liable to repay to the insurer any benefit that is paid to the person in error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation. Sections 52(2) and (3) require an insurer to give the insured person notice of the amount that is required to be repaid within 12 months after the payment of the amount that is to be repaid, unless it was originally paid to the insured person as a result of wilful misrepresentation or fraud.
6The respondent submitted her Application for Accident Benefits (“OCF-1”) to the applicant on April 10, 2023. She submitted her Disability Certificate (“OCF-3”) to the applicant on March 27, 2023, and her Election Form (“OCF-10”) on March 29, 2023, electing IRBs.
7By letter dated March 31, 2023, the applicant determined that the respondent was eligible for an IRB. It paid her a $400.00 weekly IRB from March 22, 2023 to October 27, 2023, in the total amount of $11,200.00.
8On September 26, 2023, the respondent provided the applicant with post-accident pay stubs from her employment at Amazon, which indicated that she had returned to work and earned a combination of income and short-term disability benefits post-accident.
9Upon receipt of this documentation, the applicant inputted the data from these paystubs into the Williams & Partners Claim Calculator to apply the appropriate deductions under the Schedule. It found that there should have been no IRB payment from August 6 to September 23, 2023, due to her return to work and that the IRB quantum from March 22, 2023 to July 29, 2023 should have been reduced to $126.97 per week as a result of her short-term disability payments. The report calculated that the total amount of IRBs payable during this period was $2,358.02 instead of the $11,200.00 paid to the respondent.
10By letter dated October 17, 2023, the applicant advised the respondent that there was an overpayment of IRBs in the amount of $8,841.98 due to the respondent’s post-accident earnings. The letter requests repayment pursuant to s.52(1)(a) of the Schedule and provided payment options for the repayment.
11The respondent submits that the applicant issued IRB payments without first obtaining a completed Employer’s Confirmation Form (“OCF-2”) and without consulting her legal representative. She claims that she was not aware of the deduction requirement, did not receive an Explanation of Benefits (“EOBs”) and was misled by the applicant prior to retaining legal representation. She submits that despite multiple efforts to obtain OCF-2 forms from both of her employers to properly calculate her IRBs and determine whether any other disability benefits were available, these forms were not produced due to her employers not cooperating. Upon the applicant’s request for post-accident pay stubs, the respondent promptly provided them to the applicant. She claims that the repayment demand came as a surprise because she was not advised during her initial call with the adjuster or subsequently by way of EOBs, that her IRBs were being issued or that her short-term disability benefits would reduce her IRB entitlement. The respondent argues that the applicant cannot now retroactively assign fault to the respondent for an overpayment caused by its own failure to obtain the required documentation.
12I find that the applicant’s October 17, 2023 letter is compliant with s. 52(2)(a) of the Schedule. It advised the respondent of the amount of the repayment owing and an analysis of the how it calculated the amount owing.
13I find that the applicant in good faith relied upon the OCF-1 and OCF-3 submitted by the respondent which supported that she was eligible to receive an IRB. It then paid her an IRB immediately upon receipt of these documents to ensure there was no delay in her receiving benefits at the maximum weekly rate of $400.00 per week. I acknowledge that despite the respondent’s efforts, she was unable to have her two employers complete OCF-2s. I find that despite the lack of supporting income documentation, the applicant continued to pay her an IRB. It was not until September 26, 2023, that any pay stub or financial documentation was provided to the applicant in order to properly calculate her IRB entitlement. While the respondent submits that she advised the applicant that she was entitled to short term disability, there is no evidence that any particulars of these benefits were provided to the applicant until the pay stubs were provided.
14I do not accept the respondent’s argument that she was not provided with an EOB. The applicant’s letter to her dated March 31, 2023, set out that she was eligible for IRBs and the weekly IRB amount that was payable as of March 22, 2023. She subsequently retained legal counsel who then advised the applicant not to contact the respondent directly and that all communication must be directed to counsel. While the respondent submits that she was not made aware of the deduction of short-term disability benefits by the adjuster in her initial call, she had the benefit of counsel’s legal advice shortly after the EOB was provided to her. I do not find any evidence that the respondent was misled by the applicant.
15I find that the applicant was entitled to re-calculate the respondent’s entitlement to IRBs based on the pay stubs submitted on September 17, 2023. This was the first time that any payment or income documentation was submitted by the respondent. The applicant then reviewed the documentation and properly notified the respondent that a repayment was owing. The respondent has not provided any submissions or evidence that the information in the paystubs is incorrect or invalid. Therefore, the applicant was entitled to rely on this documentation in its recalculation of the respondent’s IRBs.
16I therefore find that the applicant has proven on a balance of probabilities that it is entitled to a repayment of IRBs in the amount of $8,841.98
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.
18As I have found that the repayment is owed to the applicant, it follows that the applicant is also entitled to interest on the amounts to be repaid under s. 52(5) of the Schedule.
ORDER
19For the reasons outlined above, I find that the applicant is entitled to repayment under s. 52 of the Schedule in the amount of $8,841.98, plus applicable interest, as a result of its overpayment of IRBs to the respondent.
Released: February 24, 2026
Melanie Malach
Adjudicator