Licence Appeal Tribunal File Number: 24-013508/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:
TD General Insurance Company
Applicant
and
Nikhil Aggarwal
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Tebogo Fisher-Phala, Counsel
For the Respondent: Murad Huseynov, Paralegal
HEARD: By Way of Written Submissions
OVERVIEW
1Nikhil Aggarwal, the respondent, was involved in an automobile accident on January 20, 2023, and sought benefits from TD General Insurance Company (the “applicant”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant paid income replacement benefits (“IRBs”) to the respondent for a period of time after the accident. The applicant claimed that it overpaid IRBs to the respondent and requested a repayment of the benefits paid. The respondent argues that the applicant is barred from seeking a repayment because its notices for repayment of the IRB are deficient, pursuant to s. 52 of the Schedule, and the applicant applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a repayment of $4,336.81 relating to its payment of an IRB for the period of January 28, 2023 to September 26, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent entitled to the costs of the proceeding?
RESULT
4The applicant is entitled to repayment from the respondent for the IRBs in the amount of $1,697.09 for the period from August 19, 2023 to December 31, 2023, plus interest.
5The respondent is not entitled to costs.
BACKGROUND
6The respondent was involved in an accident on January 20, 2023 and claimed accident benefits from the applicant. The applicant began to pay IRBs to the respondent effective January 27, 2023 at the rate of $213.39 per week.
7On September 6, 2023, the respondent advised the applicant that he returned to part-time work on August 26, 2023, and the applicant made requests for employment records and paystubs by letters dated November 22, 2023, December 7, 2023, December 14, 2023, December 22, 2023, January 17, 2024, February 5, 2024, February 7, 2024 and February 10, 2024.
8On January 18, 2024, the applicant received paystubs for the period from August 19, 2023 to November 10, 2023, and it requested an overpayment of $1,694.58. On March 12, 2024, after the applicant received paystubs for the period from November 11, 2023 to December 31, 2023, it requested a further overpayment in the amount of $2.51 and stopped IRB payments from December 31, 2023.
9In a further letter dated March 12, 2024, the applicant terminated IRBs effective March 15, 2024, based on Insurer’s Examination (“IE”) reports dated March 11, 2024, by Dr. David Berbrayer, physiatrist; Dr. David Gratzer, psychiatrist; and Functional Capacity Evaluation, by Luigi Grimaldi that found the respondent was not entitled to an IRB.
10Subsequently, on February 2, 2024 and March 15, 2024, the applicant contacted the respondent’s employer, RONA, and discovered that the respondent had returned to full-time work on September 25, 2023.
11The applicant sent a further notice for repayment of IRBs dated October 24, 2024 pursuant to section 52 of the Schedule, requesting repayment in the re-calculated amount of $4,336.81 that was paid for the period from January 28, 2023 to September 26, 2023.
12The applicant filed an application to the Tribunal on November 1, 2024 seeking repayment of income replacement benefits in the amount of $4,336.81 for the period from January 28, 2023 to September 26, 2023.
ANALYSIS
IRB Repayment and notices
13I find that the applicant is entitled to an IRB repayment in the amount of $1,697.09 from the respondent for the period of August 19, 2023 to December 31, 2023. The respondent has not shown that the applicant’s notices of repayment dated February 10, 2024 and March 12, 2024 are in breach of s. 52 of the Schedule.
14Section 7(3) of the Schedule provides that an insurer may deduct any post-accident income received by an insured person from any IRBs payable.
15Section 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 wilful 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, unless the overpayment is due to wilful misrepresentation or fraud.
16The applicant submits that it initially paid IRBs on April 21, 2023 for the period from January 27, 2023 to April 20, 2023, and continued to pay an IRB at a rate of $213.39 per week as long as the respondent remained entitled to receive the benefits. The applicant submits that the respondent returned to full-time work on September 25, 2023, and did not notify it of his return. The applicant submits it continued to pay the respondent an IRB in the amount of $426.78 bi-weekly until October 22, 2023.
17The applicant also relies on a surveillance report dated November 11, 2024, by Xpera Investigations, which depict the respondent working as a sales associate at Leons Furniture Super Store in October 2024.
18The applicant submits that it provided a calculation of the overpayment in the amount of $4,336.81 in its notice dated October 24, 2024.
19In its reply, the applicant submits that the respondent returned to work on a full-time basis on September 26, 2023, without notifying it, and it raises the issue of wilful misrepresentation and fraud. However, the respondent has not had the opportunity to respond to these allegations which were raised for the first time in the applicant’s reply and it was not mentioned in the notices. The applicant submits that the respondent failed to provide his post accident income before February 2, 2024 and March 15, 2024, when it contacted the respondent’s employer. The applicant submits that after these dates, it was able to calculate the overpayment. However, the applicant does not explain the reason it did not notify the respondent until October 24, 2024 regarding the recalculation of the overpayment.
20The respondent argues that the applicant’s notices are improper and should not be considered by the Tribunal. He relies on s. 52(2)(a) in support of his position that the repayment notice dated October 24, 2024 inaccurately specifies the amount that the applicant sought in repayment. The respondent argues that the applicant’s notices dated February 10, 2024 and March 12, 2024 requested an overpayment of $1,694.58 and $2.51, respectively, based on paystubs for the period from August 19, 2023 to November 10, 2023 and for the period from November 11, 2023 to December 31, 2023. The respondent submits that the applicant calculated a total overpayment of $1,697.09 for the period from when the respondent returned to work in August 2023 until the date of stoppage on December 31, 2023.
21The respondent further submits that the applicant’s notice dated October 24, 2024, mistakenly states the period of IRB paid from September 2, 2023 to October 22, 2023, to be $4,336.81, and the notice was provided more than 12 months after the IRB payments were made.
22The respondent argues that the applicant had all the necessary information to specify the correct amount to be repaid for the correct time frame. He complied with the Case Conference Report and Order (“CCRO”) dated February 25, 2025, and produced his tax records for 2023 and 2024 on June 6, 2025, and he confirmed that he did not work from January 28, 2023 to August 2023.
23I find that the applicant’s notice dated October 24, 2024 indicates that the respondent was paid an IRB for the period from January 28, 2023 to October 22, 2023, totaling $10,669.50. It further states in the notice that on March 15, 2024, the applicant discovered from the respondent’s employer that he had returned to full-time work on September 25, 2023, and based on calculations of post accident paystubs the respondent’s entitlement to an IRB was in the amount of $6,332.69, which results in an overpayment of $4,336.81 from January 28, 2023 to October 22, 2023 (or $10,669.50 less $6,332.69). However, the applicant does not explain the difference in its calculations made in notices dated February 10, 2024 and March 12, 2024 based on post accident paystubs for the period from August 19, 2023 to December 31, 2023, which resulted in an overpayment of $1,697.09. In its reply submissions, the applicant provides the IRB calculations based on post accident income which were attached to its notices dated February 10, 2024 and March 12, 2024.
24I find that the applicant’s notice dated October 24, 2024 requesting repayment of a recalculated amount of $4,336.81 does not comply with s. 52 because the request for repayment was made more than 12 months after the IRB payments were made, and there is no evidence of wilful misrepresentation or fraud as an exception to the 12 month rule.
Timely notice and Quantum of Repayment
25As highlighted above, s. 52(3) of the Schedule provides that an insurer is not entitled to repayment if notice was not provided within 12 months of the amount that is to be repaid.
26The applicant submits that it provided notice to the respondent on October 24, 2024, and it explained that since the respondent returned to full-time work at RONA on September 25, 2023, it is requesting an overpayment in the amount of $4,336.81 for the period from September 2, 2023 to October 22, 2023. The applicant relies on the notice dated October 24, 2024 regarding how the repayment was calculated.
27The applicant submits that it discovered an error in the IRB payment and sent the respondent a subsequent notice letter dated October 24, 2024, advising there is an overpayment in the amount of $4,336.81 for the period from January 28, 2023 to September 26, 2023. The respondent argues that the applicant makes no submissions regarding how the repayment was recalculated.
28The respondent submits that the applicant’s notice dated October 24, 2024 was made outside the 12 month notice period under s. 52(3) of the Schedule.
29I find that TD initially calculated an overpayment of $1,697.09 based on paystubs provided by the respondent on January 18, 2024 and March 12, 2024. I find that TD provided notices of repayment on February 10, 2024 and March 12, 2024, which included IRB calculations based on post accident income, and the notices were within 12 months of the IRB payments for the period from August 19, 2023 to December 31, 2023. Although the applicant initially requested repayment in the amount of $1,697.09 for the period from August 19, 2023 to December 31, 2023, it subsequently increased the amount of IRB repayment to $4,336.81 for the period from January 28, 2023 to September 26, 2023.
30I find that the applicant is not entitled to the IRB repayment in the amount of $4,336.81 for the period from January 28, 2023 to September 26, 2023. I reject the applicant’s interpretation of s. 52(3) of the Schedule because I find this section is clear that the insurer has 12 months after the overpayment was made to request repayment unless there is wilful misrepresentation or fraud. However, the respondent’s notice letters dated February 10, 2024 and March 12, 2024 comply 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. I find that the recalculation of the overpayment was not due to wilful misrepresentation or fraud, because the applicant had the respondent’s paystubs for the periods from August 19, 2023 to November 10, 2023 and from November 11, 2023 to December 31, 2023 since January 18, 2024 and March 12, 2024, respectively.
31Having found that the notices dated February 10, 2024 and March 12, 2024 were produced in accordance with s. 52(2), given the information provided to the applicant from the respondent, I accept the applicant’s initial calculations of the quantum of the repayment of the IRB to be $1,697.09 from August 19, 2023 to December 31, 2023.
32I find on a balance of probabilities, that the applicant is entitled to the repayment of the IRB from August 19, 2023 to December 31, 2023, in the amount of $1,697.09.
Costs
33Under Rule 19 of the Licence Appeal Tribunal Rules, 2023, where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith within the proceeding, that party may make a request to the Tribunal for costs. Costs are discretionary, not mandatory.
34The respondent made a request for costs on the basis that the applicant’s notice dated October 24, 2024 is frivolous and in bad faith. However, the respondent has not requested a particular amount for costs.
35The applicant submits that the respondent raised the issue of costs at the case conference, but he has not provided particulars, nor an amount for costs in accordance with the Rules.
36I find that although the applicant’s notices have different amounts for the repayment, I am unable to characterize the applicant’s behaviour during this process as unreasonable, frivolous, vexatious, or of bad faith.
37For these reasons, I decline to make an order for costs.
Interest
38Interest applies to repayments, pursuant to s. 52(5) of the Schedule. Having found that the IRB is repayable, and the applicant’s notices include interest, interest is also payable to the applicant in accordance with s. 52(5).
ORDER
39For the reasons set out above, I find that:
i. Pursuant to s. 52 of the Schedule, the applicant is entitled to repayment for the IRBs paid in the amount of $1,697.09.
ii. The applicant is entitled to interest, pursuant to s. 52(5) of the Schedule.
iii. The respondent is not entitled to costs.
Released: April 23, 2026
Lisa Holland
Adjudicator