Licence Appeal Tribunal File Number: 24-008603/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
Amir Elashry
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Noella Thompson, Counsel
For the Respondent:
No submissions
HEARD:
By way of written submissions
OVERVIEW
1Amir Elashry was involved in an automobile accident on December 19, 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, Aviva Insurance Company of Canada, (“Aviva”) paid income replacement benefits (“IRB”) following the accident.
3Aviva found that the respondent was entitled to benefits from February 7, 2023 at a calculated quantum of $312.81 per week.
4In an exchange of emails in November of 2023 with Mr. Elashry’s legal representative, Aviva became aware that Mr. Elashry had returned to work on July 8, 2023.
ISSUES
5The issues in dispute are:
i. Is Aviva entitled to the repayment of an income replacement benefit by Mr. Elashry in the amount of $5,630.58 for income replacement benefits paid from July 8, 2023, to November 9, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that Aviva is entitled to a repayment of $5,630.58 for Income Replacement Benefits paid in error.
7Aviva is entitled to interest per s.52(5) of the Schedule beginning November 23, 2023.
ANALYSIS
The respondent did not file submissions
8In the case conference report and order released on November 14, 2024, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for July 4, 2025. Notice of the written hearing was e-mailed to the parties on December 27, 2024, using the contact information provided.
9Aviva filed their submissions on June 2, 2025.
10Mr. Elashry’s submissions were due on June 20, 2025. However, Mr. Elashry did not file submissions.
11The Tribunal has not received any further correspondence from Mr. Elashry. I find that no Notice of Motion seeking to extend Mr. Elashry’s submission deadlines has been filed with the Tribunal.
12I will proceed with the hearing pursuant to s. 7(2) of the Statutory Powers Procedure Act. I find that Mr. Elashry had notice of the written hearing by way of e-mail on December 27, 2024.
The respondent received benefits in error
13I find that Mr. Elashry is required to overpay income replacement benefits received through error.
14Section 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. Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid.
15Aviva submits that benefits were paid in error as they were paid after Mr. Elashry returned to work and that they gave Mr. Elashry proper notice as set out in s.52(3) of the Schedule.
16Aviva submits an email from Mr. Elashry’s representative sent November 1, 2023. In this email the representative notifies Aviva that Mr. Elashry has advised of his return to work. The representative directs Aviva to discontinue IRB payments.
17In an email sent November 7, 2023, Mr. Elashry’s representative informed Aviva that the date of return to work was July 8, 2023.
18On November 8, 2023, Aviva notified Mr. Elashry of an overpayment in the amount of $5,630.58 and requested repayment per s. 52(1)(c) of the Schedule. This overpayment represented the amounts paid in error between July 8 2023 and November 9, 2023.
19On March 6, 2024, Mr. Elashry’s representative advised Aviva that they no longer represent Mr. Elashry.
20Aviva then filed an application at the Tribunal on July 11, 2024.
21It is uncontested that Mr. Elashry returned to work on July 8, 2023. This was confirmed by an email from Mr. Elashry’s legal representative sent November 7, 2023.
22It is also uncontested that Aviva was unaware that Mr. Elashryhad returned to work, and that this caused Aviva to continue paying the benefit in error.
23Aviva properly notified Mr. Elashry within 1 week of discovering an overpayment due to this error.
24Therefore, I find that Aviva is entitled to a repayment in the amount of $5,630.58 in accordance with s. 52(1) of the Schedule.
Interest
25Sections 52(5) and (6) of the Schedule provide guidance on when an insurer may recover interest on repayment. Aviva may charge interest on the outstanding balance of the amount to be repaid for the period starting on the 15th day after the notice is given and ending on the day repayment is received in full, calculated at the bank rate in effect on the 15th day after the notice is given.
26As I have found Aviva is entitled to repayment for payments made in error per s. 52, it follows that Aviva may seek interest on the overdue amounts under s. 52(5) from November 23, 2023.
ORDER
27For the reasons above I find that:
i. Aviva is entitled to a repayment of Income Replacement Benefits paid in error in the amount of $5,638.58; and
ii. Aviva is entitled to interest per s. 52(5) of the Schedule from November 23, 2023.
Released: January 20, 2026
__________________________
Julian DiBattista
Vice-Chair