Citation: TD General Insurance Company v. Fapohunda, 2026 ONLAT 25-000085/AABS

Licence Appeal Tribunal File Number: 25-000085/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:

TD General Insurance Company

Applicant

and

Adeola Fapohunda

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Nageuna Alingary, Counsel

For the Respondent:

Chris Ruggieri, Paralegal

HEARD: In Writing

OVERVIEW

1Adeola Fapohunda, the respondent, was involved in an automobile accident on April 21, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant, TD General Insurance Company (“TD”) paid the respondent an income replacement benefit (“IRB”).

ISSUES

3The issue in dispute is:

i. Is the applicant entitled to a repayment of $3,542.86 relating to its payment of an IRB for the period of April 28, 2023 to June 28, 2023?

RESULT

4I find that the applicant is not entitled to repayment of the IRB. This application is dismissed.

PROCEDURAL ISSUES

Interest will not be added as an issue in dispute.

5The applicant has requested in submissions that the Tribunal consider interest on the overdue payment as an issue in dispute of interest. The applicant submits that this was omitted in error in the case conference report and order dated April 16, 2025 (“CCRO”). The applicant further submits that interest on overdue amounts was included in the original application.

6As I have found below that the applicant is not entitled to repayment, the question of interest is moot. Consequently, no reason to add it as an issue in dispute.

ANALYSIS

The applicant is not entitled to repayment of IRBs

7I find that TD has not proven entitlement to a repayment of IRBs.

8Section 52 of the Schedule governs 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 within 12 months after the payment of the amount that is to be repaid unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

9TD has the burden of proving that it is entitled to a repayment on a balance of probabilities.

10TD submits that they are entitled to repayment because of a wilful misrepresentation on the part of the respondent. TD’s position is based on a note in the respondent’s Employment Insurance (“EI”) file dated December 13, 2023. This note states that the respondent has been self-employed as an Uber driver.

11TD further submits that the respondent had a duty to notify TD regarding her activities as an Uber driver as these activities represent a material condition for underwriting risk on the contract of automobile insurance. TD considers this a material misrepresentation that should disentitle the respondent to income replacement benefits, and result in a repayment under s. 52.

12The respondent submits that she acted in good faith at all material times. The respondent confirms in submissions that she has sporadically driven for Uber. However, her submissions do not detail the vehicle she used while driving for Uber.

13There are no submissions or evidence that would suggest the respondent continued her self-employment while receiving income replacement benefits.

14The referenced EI note documents that the respondent was working less than 15 hours a week driving for Uber. This work was quantified as under $1000.00 annually. It is further noted that the respondent has not engaged in driving for Uber since the start of her EI claim. The start date of the EI claim was not provided. This note is the only piece of evidence which TD has adduced to support their assertion that the respondent was driving for Uber.

15TD’s position is that the respondent was using the insured vehicle for commercial purposes in contravention of the insurance contract. I was not pointed to any evidence that the insured vehicle was being used for commercial purposes. Submissions are not evidence. I therefore find that TD has not met their burden to prove the respondent was using her vehicle for commercial purposes.

16While the applicant may have driven for Uber prior to the accident, it has not been proven that she used the insured vehicle in contravention of the insurance contract or made a material misrepresentation.

17Therefore, on the balance of probabilities, I find that the TD has not proven that the respondent wilfully misrepresented material facts which would warrant repayment of the income replacement benefit.

ORDER

18For the reasons above, I find that the applicant is not entitled to repayment of the income replacement benefit.

19This application is dismissed.