Complimentary Issue

 Volume. 8 Issue. 15 – April 24, 2024

This week two instances wherein wilful misrepresentation on the part of the injured party proved costly. In ‘Silence Is Not Golden’, the Applicant was not immediately forthcoming with respect to having become entitled retroactively to LTD.

In the second case ‘Skip the IRB’, the Applicant failed to advise of having secured part time employment with SkipTheDishes, leading to a reduction in IRB paid during the period in question. The Applicant asked the Tribunal to reconsider the basis of the calculation for repayment and his inability to repay.

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LTD Payments Not Disclosed

Silence Is Not Golden – Injured in a February 2019 MVA, the Applicant Harkness received IRB from April 2019 through to September 2020, at which time they were suspended due to a failure to provide particulars on LTD benefits she was receiving. In 21-009644 v Aviva, the Tribunal noted that wilful misrepresentation had been defined by the Tribunal 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… “silence or a failure to report” can constitute wilful misrepresentation.” In a January 2020 letter, the LTD carrier advised Harkness that she would begin receiving a gross monthly LTD payment of $3,621.00 retroactive to August 27, 2019. In a May 11, 2021 letter, counsel for Harkness advised Aviva that she was receiving LTD.

The Tribunal found that “On the face of it, the facts of this case establish wilful misrepresentation. The respondent received LTD payments for about a year and three months before advising the applicant. The respondent has made no effort to explain why it took so long to advise the applicant of her LTD benefits. In my view, this “silence or a failure to report” constitutes wilful misrepresentation.” Given the amounts received through LTD exceeded the IRB payments, during the period in question IRB quantum would be nil.”

Harkness argued that if indeed this was found to be wilful misrepresentation, the amount owing ought to be between February 6, 2020 (date of LTD confirming approval) and September 26, 2020. However the Tribunal disagreed, noting that “Section 52 (1)(a) permits the repayment of “any benefit” paid as a result of an error or wilful misrepresentation. Thus, the IRB paid between August 2019 and February 2020 is also subject to repayment as it was paid in error.” Accordingly, the entirety of the $19,068.20 sought was payable. There was however no interest payable, as Aviva did not claim same in their demand letter.

Working While Receiving IRB

Skip the IRB – In the original decision, the Tribunal found that the Respondent Thomas had misrepresented his income status while receiving IRB. He failed to disclose having secured part time work as a delivery driver with Uber and SkipTheDishes, same having come to light during the course of an April 2021 insurer examination. As a result, the Tribunal found that Security was entitled to the repayment sought of $10,847.17. While there had been an earlier agreement whereby Security reduced the demand to $6,000, to be paid in installments, Thomas made only a single payment, therefore Security sought the entire confirmed overpayment amount.

In 22-000176 v Security National, Thomas sought reconsideration, arguing that the Tribunal had not distinguished between his gross and net income from the delivery activities, and further failed to consider his impecuniosity, the inability to repay. As for the first suggestion, the Tribunal found that the accountant for Security had provided a persuasive report, that Thomas had failed to counter. In addition, he had failed to provide a number of documents in support of his claim regarding IRB. Ultimately, the Tribunal found that Thomas (self-represented) was making the same arguments that he had during the initial hearing.

As for his impecuniosity, again the Tribunal found that this argument was considered and rejected during the hearing. Reference was made to Myers v. Metropolitan Toronto Chief of Police, wherein it was noted that the courts and the Tribunal “should avoid “a situation in which litigants without means can ignore the rules of the court with impunity, and the distastefulness of creating a rule incapable of consistent application”. The Tribunal also rejected an alternative proposal by Thomas, that the $6,000 “settlement” amount be considered as the amount of any overpayment. Accordingly, the request for reconsideration was dismissed.

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