Court Orders Employee to Pay $112,792.70 “Overpayment” Back to WSIB

The Workplace Safety and Insurance Board has won a court order requiring an employee to pay back a $112,792.70 “overpayment” to the WSIB.

The WSIB had advised the employee that it was reversing his entitlement to benefits – for a number of years – and that it was claiming back the overpayment.

Criminal charges followed, and the employee was convicted and ordered to pay restitution of $4,330.  The WSIB then launched a court action claiming the remaining overpayment of $112,792.70.

At the same time, the employee launched an appeal to a WSIB Appeals Resolution Officer, and then the Workplace Safety and Insurance Appeals Tribunal, seeking to overturn the WSIB’s decision that there had been an overpayment of benefits to him.  Both the ARO and the WSIAT dismissed his appeals.  The WSIB agreed to hold the court action in abeyance until those appeals were resolved.

The court then granted the WSIB’s request for summary judgment, and ordered the employee to pay $112,792.70 to the WSIB.

The WSIB then moved to dismiss the employee’s counterclaim in which he alleged that the WSIB and the WSIAT mistakenly, negligently, or unfairly dealt with the medical evidence that was the basis for the WSIB’s claim for repayment.  The court dismissed that counterclaim because the proper way to raise those issues was by an application for judicial review of the ARO’s and the WSIAT’s decision, not by a claim in the courts.

Workplace Safety and Insurance Board v. Daykin, 2012 ONSC 7020 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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