An Ontario tribunal has ordered a claimant to repay $20,800 in income replacement benefits Certas Direct Insurance Company paid him in error.
The dispute stemmed from a car accident on July 31, 2022. The claimant applied for statutory accident benefits, and Certas began paying a weekly income replacement benefit of $400 starting August 7, 2022, after reviewing his employment insurance file.
More than two years later, a claims specialist reviewing the file found the claimant had not actually qualified. His EI benefits had ended on July 30, 2022 - the day before the accident - meaning he was not employed, had not worked 26 of the previous 52 weeks, and was not receiving EI at the time of the crash. Certas stopped the benefit on October 30, 2024, and sought repayment of amounts paid in the preceding year.
The claimant argued Certas should be estopped from demanding repayment. He pointed to the insurer's original decision to approve and pay the benefit for two years as a promise the company later broke, relying on a Divisional Court ruling that gave the Licence Appeal Tribunal authority to apply estoppel under section 131 of the Insurance Act.
Vice-Chair Julian DiBattista disagreed. Adjuster log notes showed the claimant's own counsel had pushed for the benefit to be paid quickly while acknowledging it might later prove to be an overpayment. That record, DiBattista found, undercut any claim that Certas had made a considered decision rather than an error.
DiBattista also found the error, once identified, did not amount to a broken promise under the legal test for estoppel. Section 52 of the Statutory Accident Benefits Schedule already anticipates that benefits will sometimes be paid in error, and it builds in a repayment mechanism - provided the insurer gives notice within 12 months. Because that framework exists, DiBattista reasoned, a mistaken payment cannot itself be read as an assurance the claimant could rely on. "Consumer protection does not equal consumer windfall," he wrote.
The tribunal distinguished two Court of Appeal decisions the claimant relied on, finding neither involved a benefit paid under the Schedule or a genuine waiver by the insurer. It limited the repayment to the 12 months before Certas gave notice, in line with section 52(3). The claimant had also sought interest and a special award under section 10 of Regulation 664, but the tribunal found no benefits were withheld and declined both.
