Citation: TD General Insurance Company v. Eliaszadeh, 2026 ONLAT 25-001431/AABS

Licence Appeal Tribunal File Number: 25-001431/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

Hadi Eliaszadeh

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Ken Yip, Counsel

For the Respondent: Kenway Yu, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hadi Eliaszadeh, the respondent, was involved in an automobile accident on September 19, 2019, and received benefits from the applicant, TD General 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 repayment of $7,710.19 relating to its payment of an IRB, for the period of September 27, 2019 to August 18, 2020?

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 $7,710.19, plus applicable interest, as a result of its overpayment of IRBs to the respondent due to wilful misrepresentation.

ANALYSIS

IRB Repayment

Two-Year Limitation Period

4I find that this Application is not statute barred by a limitation period.

5The respondent submits that the applicant’s Application is statute-barred by a limitation period. The respondent argues that the applicant’s right to seek repayment is not indefinite and that pursuant to s. 280 of the Insurance Act, R.S.O., c. I. 8., a proceeding before the Tribunal must be commenced within two years of the insurer’s refusal to pay a benefit. The respondent submits that the applicant was in full possession of the facts upon which it now relies as of February 26, 2021, when it obtained a report from Price Waterhouse Coopers (“PwC”) detailing its suspicions about post-accident income from various companies. However, it did not commence its Application before the Tribunal until February 4, 2025. The respondent argues that the applicant has allowed the statutory limitation period to expire and therefore its right to seek repayment of these benefits has been extinguished by the passage of time.

6The applicant submits in its reply submissions, that s. 280 of the Insurance Act no longer contains the provision for the two-year limitation period. It used to be found at s. 281.1 of the Insurance Act, which was repealed in 2014, c.9, Sched. 3, s. 14. The applicant submits that the two-year limitation that the respondent is referring to is actually found at s. 56 of the Schedule. The applicant argues that the two-year limitation clock per s. 56 only starts to run when the insurer refuses to pay the amount claimed. It is not applicable to an insurer’s claim for repayment under s. 52 because it is the insured person who refuses to pay the amount claimed.

7I find that the applicant is not barred from pursing repayment. Section 56 of the Schedule clearly sets out that an Application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. I find that the language does not apply to an insurer’s request for overpayment, but rather a refusal to pay a benefit.

8For the reasons outlined above, I find that this Application is not statute barred, and the applicant is entitled to proceed with this hearing.

IRB Repayment

9I find that the respondent’s misrepresentations about his post-accident income was an act of wilful misrepresentation and that the applicant is entitled to repayment as a result.

10Section 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.

11Pursuant to s. 52(2) of the Schedule provides that the respondent must give notice of the overpayment, and section 52(3) of the Schedule restricts the requests for repayment to a period of no longer than 12 months following the error unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

12The applicant submits that it is entitled to $7,719.10 for repayment of IRBs paid to the respondent for the period of September 27, 2019 to August 18, 2020, because of the respondent’s wilful misrepresentation about his post-accident income and his failure to provide further relevant income documentation despite being ordered to do so.

13The applicant submits that the Tribunal has defined “misrepresentation” as “any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts”. The applicant submits that the Tribunal has also held that “silence or failure to report” may constitute wilful misrepresentation, depending on the circumstances. (See: 17-000272 v. T.T., 2017 CanLII 87539 (ON LAT) and Aviva General Insurance Company v. Gurung, 2021 CanLII 11858 (ON LAT)).

14The applicant submits that it obtained an IRB Calculation Report from PwC dated January 7, 2020, indicating an IRB quantum of $165.05 per week pending review of any post-accident income. By letter dated January 10, 2020, the applicant paid the arrears and started to pay an IRB in the amount of $165.05 per week. The respondent was paid an IRB in the total amount of $7,710.19 for the period of September 27, 2019, to August 18, 2020.

15The respondent submitted a s. 25 accounting report prepared by S&T Accounting dated December 11, 2020, which supported the respondent’s IRB base to be $400.00 per week based on significant post-accident income loss.

16By letter dated December 21, 2020, the applicant advised the respondent that based on the accounting report of S&T Accounting, there is an overpayment of IRBs owing on the basis that the respondent “failed to disclose to the insurer of all the businesses in which you own or work for and did not disclose of all post-accident income earned”. It advised that it is currently waiting for all missing financial productions in order to accurately calculate the respondent’s entitlement to an IRB. It further advised that the respondent was responsible to repay a total of $7,710.19 for all benefits paid out for the period of September 27, 2019 to August 18, 2019 pursuant to s. 52 of the Schedule.

17The applicant submits that it obtained a Supplementary Report from PwC dated February 26, 2021, stating that based on additional information now received, the respondent may have post-accident income from companies that he failed to previously report. It noted that there were numerous payments made to the respondent’s holding company from a third party after the accident. PwC made multiple production requests for missing financial documentation in order to complete its calculations. Follow up letters were written by PwC on August 12, 2022 and September 12, 2022.

18The applicant wrote to the respondent on March 2, 2021, requesting repayment of the IRB with interest at 1% from March 2, 2021, and advising that it is waiting for missing financial productions in order to calculate his entitlement to the IRB.

19By letter dated March 31, 2021, S&T Accounting wrote the applicant and advised that,

7.b…As per confirmation from claimant, Canada Home has not generated any revenues subsequent his motor vehicle accident, hence the documentation is not available, thus has not been provided. As per confirmation from claimant, he does not possess any additional documents, hence it has not been provided.

20The applicant submits that the Corporate Tax Return of Canada Home Realty for the year ended August 31, 2021, clearly shows total revenue of $76,260.00 and net income of $30,749.00. The applicant argues that this in direct contradiction to the letter of S&T Accounting dated March 31, 2021, as well as the applicant’s evidence at his Examination Under Oath (“EUO”) on December 7, 2021, when he deposed that Canada Home has ceased to operate and has no revenue after the subject accident.

21The applicant submits that the respondent has continued to defy the reasonable production requests from PwC and the applicant in 2022 and 2023. In addition, despite the CCRO ordering the respondent to provide his income documents he has failed to do so. The applicant requests that an adverse inference be drawn by the Tribunal from the respondent’s actions and failure to provide these documents. (See Randhawa v. Unifund Assurance Company, 2021 CanLII 37849 (ON LAT) and 17-000480 v. Pafco, 2018 CanLII 81892 (ON LAT)).

22The applicant further submits that the respondent’s misrepresentation is further supported by the surveillance evidence in the Investigation Report of xpera, dated October 18, 2022, where the private investigators were able to confirm with Homelife/Future Realty that the respondent continues to work from home.

23The respondent submits that the applicant’s Application is based on an alleged failure to produce financial documents. He submits that any delay in production of the requested documentation is a direct consequence of the significant cognitive, psychological and physical impairments sustained in the subject accident. He argues that he has not refused to provide documents but rather he has been unable to comply with the aggressive timelines imposed by the applicant and the Tribunal due to his disability.

24The respondent further submits that the applicant’s insistence on a lump-sum repayment from a catastrophically impaired individual is punitive and creates undue financial hardship and stress. He argues that the purpose of s. 52 of the Schedule is to ensure fairness, not to punish claimants. Where a claimant remains entitled to ongoing benefits, the standard and most reasonable industry practice is to reconcile any past overpayment through deductions from future payments. He submits that as he is still entitled to an IRB, any repayment should be way of a reasonable deduction from ongoing or future benefits payable to the respondent as per s. 52(2)(b) of the Schedule.

25The respondent seeks an Order that the Application be dismissed with prejudice. In the alternative, he seeks an Order dismissing the Application as premature and ordering the respondent to produce the outstanding documents listed in the CCRO within a reasonable timeframe of 90 days. Upon receipt of the documents, the applicant shall be entitled to calculate any overpayment, and any confirmed overpayment shall be recovered by the applicant by way of a reasonable deduction from ongoing or future benefits payable to the respondent, at a rate not to exceed 20% of each payment.

26I find that the applicant is entitled to a lump sum repayment of $7,710.19 relating to its payment of IRBs for the period of September 27, 2019 to August 18, 2020. I find that the applicant has complied with the repayment notice requirements as specified in ss. 52(2) and 52(3) of the Schedule. I find that the applicant’s letter dated December 21, 2020, properly notified the respondent of its concerns and advised the respondent it was seeking repayment. The applicant then made s. 33 requests for information which were not complied with.

27I find that it is clear from the evidence, specifically the reports of PwC, that the applicant made misrepresentations about his post-accident income. I find that the Corporate Tax Return of Canada Home Realty for the year ended August 31, 2021, clearly shows total revenue of $76,260.00 and net income of $30,749.00, which I agree is in direct contradiction to the letter from S&T Accounting, dated March 31, 2021 and the EUO evidence of the respondent that that Canada Home Realty ceased to operate and has no revenue after the subject accident. I further find that the respondent has not disputed in his submissions that he made misrepresentations about his post-accident income.

28I further find that while PwC and the applicant requested further financial documentation in order to calculate the respondent’s post-accident income, these requests were not complied with. While the respondent submits that he could not provide the requested documentation due to his cognitive and physical impairments because the timelines were too aggressive, I note that these requests were made in 2021. It is now five years later, and the requests have still not been complied with. I do not accept the respondent’s request for this Tribunal to make an Order granting him more time to comply with the requests. I find that the respondent has had ample opportunity to comply and failed to do so. I further find that despite the respondent’s submissions that he is too cognitively and physically impaired to comply with the production requests, no evidence of these impairments has been provided for my review.

29With respect to the respondent’s submissions that ordering a lump sum payment of IRBs is punitive, I find that 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 insured, and the overpayment is being repaid by way of IRB deductions. In this matter, I accept the applicant’s submissions that IRB entitlement has been suspended since December 22, 2020, due to the respondent’s failure to comply with the s. 33 requests for income documentation. Therefore, s. 52(2)(b) does not apply. 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.

30I note the respondent’s argument that the Schedule is consumer protection legislation and that a lump sum payment creates undue financial hardship and stress. 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) of the Schedule 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 $7,710.19.

The applicant is entitled to interest on the IRB repayment

31Section 52(5) of the Schedule states that an insurer may charge interest on the outstanding amount of an 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.

32The applicant requests interest on the repayment.

33The respondent has not made any submissions on interest.

34As 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

35For the reasons outlined above, I find that the applicant is entitled to repayment under s. 52 of the Schedule in the amount of $7,710.19, plus applicable interest, as a result of its overpayment of IRBs to the respondent due to wilful misrepresentation.