RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
24-000713/AABS
Case Name:
Definity Insurance Company v. Nayef Abdul Hussein
Written Submissions by:
For the Applicant:
Jeremy Hanigan, Counsel
For the Respondent:
Nayef Abdul Hussein, Respondent
OVERVIEW
1On December 30, 2025, the applicant insurer requested reconsideration of the Tribunal’s decision released December 9, 2025 (“decision”).
2Stemming from an accident on March 8, 2019 and a request for benefits made by the respondent insured person, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a written hearing. In the decision, the Tribunal dismissed the applicant’s claim for repayment of the income replacement benefit (“IRB”). While the Tribunal found the respondent had misrepresented his 2018 income, it was not satisfied that this misrepresentation was “wilful”. The Tribunal summarized this aspect of the decision at paragraphs 49 – 51 of the decision (emphasis added):
I find useful the discussion of “wilful” in Economical Mutual Insurance Company v. E.M., 2018 CanLII 13147 (ON LAT) (“E.M.”). In E.M., the Tribunal referred to Black’s Law Dictionary for the proposition that a voluntary act becomes wilful in law only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong. In E.M., the Tribunal stated that the term wilful is stronger than voluntary or intentional and is subjective.
I am persuaded to follow the definition the Tribunal adopted in E.M. Given that the Schedule is intended to be consumer-protection legislation, and that the finding of a wilful misrepresentation has serious consequences for the insured person, it is important to give meaning to “wilful”.
On a totality of the evidence, I find that the applicant has not provided evidence to establish that the respondent fabricated his 2018 income on his return with a conscious wrong or evil purpose to falsely qualify for IRB, or with inexcusable carelessness whether he falsely qualified for IRB or not.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant relies on Rule 18.2(b) to support its request. It is asking the Tribunal to find it is entitled to a repayment of the IRB, plus interest.
5The respondent opposes the request for reconsideration.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence.
8Section 52(1) of the Schedule grants insurers the ability to request repayments of benefits “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”. Section 52(3) then states that, “unless [the amount] was originally paid to the person as a result of wilful misrepresentation or fraud”, a repayment request must be made within 12 months of the payment.
9According to paragraph 16 of the decision, the timing of the applicant’s repayment request meant a finding of “wilful misrepresentation” was key:
The applicant focused its arguments for repayment solely on “wilful misrepresentation”, and did not allege “error” due to the expiry of the 12-month limitation period. The applicant submits that it paid the applicant IRB for the time period of October 6, 2020 to August 15, 2022 and that it provided the respondent with notice of the amount required to be repaid on August 17, 2023.
10To challenge the Tribunal’s finding that the respondent was not “wilful” in his established misrepresentation, the applicant argues that the Tribunal incorrectly required it “to prove motive”. Citing the Court of Appeal for Ontario’s rulings in Gregory v. Jolley, 2001 CanLII 4324 (ON CA) (“Gregory”) and Pinder Estate v. Farmers Mutual Insurance Company, 2020 ONCA 413 (“Pinder Estate”), the applicant claims there is no need for intention to prove that a misrepresentation was “wilful”. Rather, there can be “fraud based on recklessness.” Due to its alleged “failure to give adequate consideration to the contention that the Respondent had been reckless with the truth in regards to the income figures”, the applicant claims the Tribunal erred in its assessment of the case.
11Further, the applicant suggests that—if this correct approach had been used—there is clear evidence that the respondent was reckless with his income calculations. Specifically, the applicant highlights a response from the respondent’s Examination Under Oath (“EUO”) where he admits to “Ball parking” the amount his business brought in. According to the applicant, “the Respondent knew the statement that he earned $48,600 was false, he made that statement recklessly without caring whether it was true or not.”
12I do not find the applicant has made out any grounds for reconsideration. Rather, the applicant is engaging in the kind of “line-by-line treasure hunt for error” that the Supreme Court of Canada cautioned against in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (at paragraph 102, citations removed):
To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”.
13In the present request, the applicant takes issue with the following comment made by the Tribunal at paragraph 43 of the decision (emphasis added): “I do not find that these facts prove, on a balance of probabilities, that the respondent fabricated his 2018 income tax return to qualify for IRB.” According to the applicant, this comment shows the Tribunal incorrectly required it to “prove motive”.
14I do not agree. Rather, as the following paragraphs establish, the Tribunal engaged in a comprehensive and holistic analysis of the respondent’s misrepresentation—an analytical framework that went beyond a determination of whether the misrepresentation had the purpose of qualifying for the IRB or not (at paragraphs 44 – 47):
First, the applicant provides an explanation in his Transcript testimony for why he had losses in 2017 compared to income in 2018. He testified that prior to selling Simply Tires, etc., it was not making much money because he was not a licensed mechanic so he could not provide customers a full range of auto services without hiring another person. Second, in his submissions he indicates that he had to raise funds in 2018 because he split from his wife in April, and he needed somewhere to live permanently. Though there is no other evidence before me to corroborate these points, there is also no reason not to believe the respondent because the explanations are consistent with the rest of his testimony that day about his business losses and breakdown of the marriage.
Second, I do not find wording in the accident benefit package dated March 11, 2019 that substantiates the applicant’s contention that it alerted the respondent to his requirement to provide documented income to apply for IRB. The only possible language is a general statement that “basic accident benefits”, of which IRB is one, “are subject to eligibility and qualification”. There is no discussion of the type of documentation required to apply for IRB.
Third, because of the amount of income the respondent declared in 2018 relative to his expenses, he incurred a tax liability of $8,627.90, understood to be due immediately. I struggle to understand why he would do so in order to collect IRB 17 months in the future. I note that he continued to work for Mayday Towing in 2019 and did not start to receive IRB until October 6, 2020, when he provided a disability certificate (OCF-3).
The respondent stated in his submissions that he applied for IRB on his lawyer’s advice and that advice was received after April 2019, i.e., he denied any connection between applying for IRB and his 2018 income tax return.
15This discussion is then followed by the paragraphs quoted above at the start of this decision. Briefly, the Tribunal concludes that (at paragraph 51): “the applicant has not provided evidence to establish that the respondent fabricated his 2018 income on his return with a conscious wrong or evil purpose to falsely qualify for IRB, or with inexcusable carelessness whether he falsely qualified for IRB or not.”
16A party requesting reconsideration based on Rule 18.2(b) must do more than zero in on an awkward word or phrase. Instead, they must engage with the larger analytical framework of the decision to show how or why the Tribunal erred. In this matter, I am satisfied that the applicant has unduly focused on the phrasing in paragraph 43, and, as such, has asked for a “line-by-line treasure hunt for error” that does not account for the broader analysis performed by the Tribunal.
17In a similar vein, the applicant alleges that the Tribunal’s references to “inexcuseable carelessness” is not the test set out by the Court of Appeal in Gregory and Pinder Estate. Though the Tribunal may not have used the exact wording from these earlier decisions, I am satisfied that the substance of its analysis focused on the correct legal considerations, e.g., the circumstances at play; what the respondent likely knew in these circumstances, etc.
18Finally, though the applicant may disagree with the Tribunal’s assessment of the respondent’s behaviour and answers at the EUO (claiming that this evidence establishes recklessness), this complaint appears to be a dispute with the Tribunal’s weighing of the evidence. Adjudicators are tasked with considering and weighing the evidence. Unless a requesting party can show that some aspect of their analysis is legally impermissible or factually incorrect, these evidentiary assessments will not be disrupted on reconsideration.
19Taken together, I find the applicant has not established an error that meets the standard of Rule 18.2(b).
CONCLUSION & ORDER
20The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Released: March 12, 2026