Licence Appeal Tribunal File Number: 23-011190/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:
Definity Insurance Company
Applicant
and
Samer Hassoun
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Pina Carusone, Counsel
For the Respondent: No submissions filed
HEARD: By way of written submissions
OVERVIEW
1Samer Hassoun, the respondent in this matter, was involved in an automobile accident on March 11, 2020, and sought an income replacement benefit (“IRB”) from the applicant, Definity Insurance Company (“Definity”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2In his Election of Benefits Form (“OCF-10”), dated May 1, 2020, the respondent elected to receive IRBs. He submitted an Employer’s Confirmation Form (“OCF-2”), dated April 17, 2020, confirming that he worked at a business called “Mr. Phone” at the time of the accident, and that he last worked on March 11, 2020. Definity provided an Explanation of Benefits letter, dated May 1, 2020, confirming that the respondent’s IRB claim was accepted and that his weekly benefit would be $800.00.
3IRB payments were stopped on September 23, 2021 due to non attendance for an examination under oath.
4It was subsequently determined that Mr. Phone, which completed the OCF-2, was a sole proprietorship registered to the respondent’s wife. Definity then discovered that the respondent had been working as real estate agent while collecting IRBs.
5By way of an Explanation of Benefits, dated September 23, 2021, the respondent was advised that repayment was being claimed in accordance with s. 52 of the Schedule. A demand letter, dated September 23, 2021, was sent to the respondent providing the calculation of the overpayment in the amount of $50,571.43. To date, Definity has not received any repayment from the respondent. Definity filed an application with the Tribunal seeking repayment of the IRB, giving rise to this written hearing.
6Mr. Hassoun did not make written submissions in this hearing despite receiving a notice of written hearing on April 25, 2024.
ISSUES
7The issues in dispute are:
i. Is the applicant entitled to a repayment of $50,571.43 for its payment of income replacement benefits from March 11, 2023 to September 14, 2023?
ii. Is the applicant entitled to costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?
iii. Is the applicant entitled to interest on any over-payment of benefits?
RESULT
8Definity is entitled to repayment of the IRBs in the amount of $30,800.00.
9Interest will apply on this repayment, as per s. 52(2) of the Schedule, from October 8, 2021.
10Definity’s request for costs is dismissed.
ANALYSIS
11Section 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. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount, unless it was originally paid as a result of wilful misrepresentation or fraud.
12Definity has the burden of proving that the IRB was paid as a result of an error, wilful misrepresentation, or fraud, on a balance of probabilities.
13The applicant submits that the respondent engaged in wilful misrepresentation when providing information to the insurer.
14Section 52(3) of the Schedule states that the insurer may claim a repayment of benefits paid more than a year prior to the demand letter if the benefits were originally paid due to wilful misrepresentation or fraud. As benefits were first paid on May 1, 2020, and the repayment demand letter was dated September 23, 2021, a finding of willful misrepresentation or fraud is required for a repayment of benefits paid prior to September 23, 2020.
15The 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 Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation.
Mr. Hassoun did not misrepresent his employment status in his initial claim for benefits
16I find that the Mr. Hassoun did not make a willful misrepresentation on his OCF-2 concerning his employment status.
17Definity submits that Mr. Hassoun indicated on his OCF-1 that he was employed and working for Mr. Phone at the time of the accident. An OCF-2 was submitted by the operations manager of Mr. Phone confirming this.
18Definity conducted a Business Names Report through Ontario’s Ministry of Government Services on May 21, 2021. This report indicated that the business name “Mr. Phone” was registered to Eva Hassoun, operating as a sole proprietor. Definity further submits that Ms. Hassoun is the respondent’s wife.
19Definity submits that Mr. Hassoun was not at arms length from Mr. Phone and should be considered self-employed. Definity further submits that his description of his relationship with Mr. Phone as employee/employer on the OCF-2 form represents a wilful misrepresentation that meets the requirements of s. 52 to justify repayment.
20Definity cites 18-000729 v. Northbridge Personal Insurance Corporation, 2020 CanLII 14425 (ON LAT) (“Northbridge”) as case law supporting this position. In Northbridge, the Tribunal found that the applicant had willfully misrepresented his employment status and required him to repay the IRB received.
21However, I find this present case is distinguishable from Northbridge. In Northbridge, the applicant claimed he was employed for Automobile Accident Benefits and self-employed for the purposes of Workplace Safety and Insurance Benefits. At paragraph 47, the Tribunal found that the applicant admitted he was employed, because it was too hard to prove income for accident benefits otherwise.
22In this instance, there is no evidence before me that Mr. Hassoun has made any other declaration or statement where he considered himself self-employed. Definity is assuming that, since his wife is the registered sole proprietor of Mr. Phone, Mr. Hassoun cannot be an employee. Definity has not provided any evidentiary backing for this assumption, nor have they provided any binding authorities to give legal weight to that position.
23For the reasons above, I cannot find, on the balance of probabilities, that Mr. Hassoun misrepresented himself in the OCF-2.
Mr. Hassoun returned to work without notifying Definity
24I find that Mr. Hassoun committed wilful misrepresentation by returning to work without notifying Definity.
25Definity submits that Mr. Hassoun engaged in willful misrepresentation of his work status, as he returned to work while continuing to collect IRBs. I accept this position.
26Definity submits a social media report conducted by Northwood and Associates Global Investigation Services, dated June 3, 2021. This report details Mr. Hassoun’s social media activity, where he is representing himself as a real estate agent working for Century 21 Request Realty Inc. The earliest social media post is a Facebook post dated December 31, 2020 made by “Sam Hass”.
27A subsequent surveillance report by Northwood and Associates, dated June 21, 2021, has been submitted as evidence. In this report, Mr. Hassoun was seen attending at the Century 21 Request Realty Inc. office.
28I am satisfied, on the balance of probabilities, that Mr. Hassoun and Sam Hass are the same person as the surveillance report has traced Mr. Hassoun from the address provided on the OCF-1, OCF-2 and OCF-10 forms to the Century 21 Request Realty Inc offices. In addition, the surveillance report notes that Samer Hassoun is registered with the Real Estate Council of Ontario linked to Century 21 Request Realty Inc.
29The applicant cites Unifund Assurance Co. v M.D.C., 2020 CanLII 94799 (ON LAT) (“Unifund”) to support their position. In Unifund, the Tribunal found the insured had committed willful misrepresentation by returning to work without notifying the insurer.
30I agree with the findings in Unifund. I find that returning to work without notifying the insurer constitutes an assertion that is not in accordance with the facts. I find this meets the standard for willful misrepresentation under s. 52.
31Therefore, I find that Mr. Hassoun has willfully misrepresented his post-accident employment status while receiving an IRB. This finding engages s. 52 of the Schedule.
32As the earliest evidence of Mr. Hassoun working is a social media posted dated December 31, 2020, the repayment will start on this date. The repayment will, therefore, be in the amount of $800.00 per week from December 31, 2020 to September 23, 2021, the date the benefit was stopped. This period contains 266 days or 38 weeks.
33I therefore find that Definity is entitled to a repayment in the amount of 38 weeks of IRBs at a rate of $800.00 per week. The total amount to repay is $30,400.00.
Interest
34Definity seeks interest on the repayment. Sections 52(5) and (6) of the Schedule provide guidance on when an insurer may recover interest when seeking repayment. The insurer 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.
35Accordingly, as I find that Definity is entitled to a repayment of an IRB, it follows that interest is payable on the overdue amount under s. 52(5). Since the notice was provided September 23, 2021, interest will be calculated from October 8, 2021.
Costs
36Rule 19.1 of the Rules states: “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.”
37In submissions, the applicant requested costs in the amount of $1,000.00.
38The applicant submits that Mr. Hassoun has not participated in the proceeding. Despite his obligations set out in the Rules, he did not file a Case Conference Summary despite being required to, nor did he produce documents as ordered by the Tribunal in disregard of the Case Conference Report and Order.
39Rule 19.5 lists the factors to consider when adjudicating a request for costs.
40I note that, according to the Case Conference Report and Order, Mr. Hassoun did attend the case conference on April 4, 2024.
41The level of conduct required to order costs is a high threshold. While the respondent did not participate actively in this matter, he did attend the case conference.
42The Tribunal was able to conduct a fair hearing in his absence, and the only party to suffer prejudice for his non-attendance was Mr. Hassoun.
43Therefore, considering Rule 19.5, I decline to award costs, as I find Mr. Hassoun’s conduct has not met the criteria set out in Rule 19.1.
ORDER
44For the reasons above, I order:
i. The applicant is entitled to repayment of the IRBs in the amount of $30,800.00;
ii. The applicant is entitled to interest, as per s. 52(2) of the Schedule, from October 8, 2021; and
iii. The applicant is not entitled to costs.
Released: July 22, 2025
__________________________
Julian DiBattista
Vice-Chair