TD Home and Auto Insurance Company v. Berhe, 2026 CanLII 8155

TD Home and Auto Insurance Company v. Berhe

Citation: TD Home and Auto Insurance Company v. Berhe, 2026 ONLAT 24-008232/AABS

Licence Appeal Tribunal File Number: 24-008232/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 Home and Auto Insurance Company

Applicant

and

Bereket Berhe

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Kristine Kim, Counsel

For the Respondent: Bereket Berhe, Self-represented

HEARD: By way of written submissions

OVERVIEW

1Bereket Berhe, the respondent, was involved in an automobile accident on January 31, 2022, and received benefits from the applicant, TD Home and Auto Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant claims repayment of income replacement benefits ("IRBs") paid to the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant filed its submissions on June 18, 2025. The respondent did not file any submissions with the Tribunal.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a repayment of $2,810.65 relating to its payment of IRBs for the period of February 8, 2022 to July 1, 2022?

ii. Is the applicant entitled to interest on any overpayment of benefits?

iii. Is the applicant entitled to costs against the respondent in the amount of $500.00?

4While the issue of costs was not raised at the Case Conference, the applicant has raised it as an issue in dispute in this hearing. I have agreed to allow this issue to proceed pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, which states that, "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."

RESULT

5I find that the applicant is not entitled to a repayment of $2,810.65 relating to its payment of IRBs for the period of February 8, 2022 to July 1, 2022.

6I find that the applicant is not entitled to interest or costs.

PROCEDURAL ISSUES

7I find that the respondent did not file any submissions despite having notice of the written hearing that was sent by email on November 5, 2024. I will therefore proceed with the hearing pursuant to s. 7(2) of the Statutory Powers Procedure Act.

ANALYSIS

Entitlement to repayment of IRBs

8The applicant is seeking repayment of IRBs totaling $2,810.65, paid between February 8, 2022 and July 1, 2022.

9Under s. 52(1) of the Schedule, a person is liable to repay to the insurer any benefit that is paid to the person in error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation. Sections 52(2) and (3) require an insurer to give the insured 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 insured person as a result of wilful misrepresentation or fraud.

10The applicant has the burden of proving on a balance of probabilities that the IRB was paid as a result of an error, wilful misrepresentation or fraud.

11The 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 failure to report" can constitute wilful misrepresentation.

12Following the accident, the respondent submitted an Employer's Confirmation Form ("OCF-2") dated February 21, 2022, indicating his job title as "Building Maintenance Tech". Under Part 7 (Employer Information), the respondent listed his own name as the company name and listed the company address as "1624 Bloor Street West". He reported his self-employment gross income as $54,190.00.

13Following receipt of the respondent's Disability Certificate, prepared by Dr. Silvia Vicente, chiropractor, dated May 11, 2022, which supported his entitlement to an IRB, the applicant retained the services of Price Waterhouse Coopers ("PWC") to determine the quantum of the respondent's IRBs. The report dated April 8, 2022, calculated the respondent's IRB as $124.52 per week. The report relied upon the 2021 Notice of Assessment which indicates total income of $25,254.00. It notes that the applicant did not provide a complete copy of his 2021 T1 General Income Tax Return, including the related Statement of Business Activities.

14Based on the PWC report, the applicant paid the respondent an IRB in the amount of $124.52 per week from February 8, 2022 to July 8, 2022. IRBs were subsequently stopped on July 28, 2022, based on a s. 44 Psychology Report prepared by Dr. Amena Syed and a s. 44 Physiatry Report, prepared by Dr. Jennifer Gordon, both dated July 25, 2022. A s. 44 Functional Capacity Evaluation report was also prepared by Sheri Corriero, physiotherapist, dated July 25, 2022, which found the respondent was "vague regarding his job duties in terms of activities performed from day to day and tools required for each type of job".

15By letter dated February 8, 2024, the applicant wrote to Aykler Management. I note the letter is not addressed to the respondent, but he is copied on the letter. The letter states that it is "currently reviewing your file to determine your ongoing disability and entitlement for Accident Benefits and we require the following information to support your claim." Pursuant to s. 33 of the Schedule, it requested a copy of the employee file; extended Healthcare Benefits Booklet and payment summaries, if applicable; and short-term and long-term disability file, if applicable.

16By letter dated February 9, 2024, Aykler Management wrote to the applicant confirming that the respondent is not and never was employed by its firm. It confirmed that Aykler Real Estate (Aykler Management) is the Property Manager for the building at 1624 Bloor Street West, Toronto. It further notes that the respondent is the registered tenant of unit #107 at 1624 Bloor Street West.

17By letter dated March 12, 2024, the applicant wrote to the respondent advising of its conversation with Les Aykler of Aykler Management where he confirmed that the respondent is not an employee and has never been an employee of his firm. The letter advises the respondent that as a result of wilful misrepresentation an overpayment of IRBs has occurred and pursuant to s. 52 of the Schedule, he is liable to repay the applicant the IRBs paid to him in the amount of $2,810.65, with interest.

18The applicant submits that the respondent misrepresented his work status and income by submitting incomplete and misrepresentative documentation. It further claims that the respondent was vague and not forthcoming in providing information related to his pre-accident self-employment and income, including his 2021 T1 General Income Tax Returns, Statement of Business Activities and/or Employment file.

19I find that the respondent did not make a wilful misrepresentation to the applicant.

20I find that the applicant has not pointed the Tribunal to any evidence which supports that the respondent indicated that he worked for Akyler Management. I find that the respondent submitted in his OCF-2 that he is self-employed and gave his home address as his company address. While Aykler Management is the Property Manager of the building where the respondent resides, there is no evidence before me that the respondent claimed to work for Aykler Management. I find that the applicant has not provided any evidence as to the particulars provided by the respondent as to who he worked for or the companies he provided services to.

21I further find that the 2021 Notice of Assessment provided to PWC by the respondent confirms that his total income is $25,254.00 and his net income is $24,912.00. This is the documentation relied upon by PWC to calculate the respondent's IRB. There is no evidence before me to support that the respondent misrepresented this income in filing his tax returns. While the report of PWC notes that it does not have a copy of the respondent's 2021 T1 General Income Tax Return, including the related Statement of Business Activities, I find that no s. 33 request was subsequently made for this documentation. The applicant accepted the report of PWC and paid the respondent IRBs based on this report as set out in its letter the respondent dated April 13, 2022.

22I further find that the letter dated February 8, 2024, requesting s. 33 documentation and information is addressed to Aykler Management. The applicant has not provided the Tribunal with any evidence that s.33 requests or further information was requested from the respondent to support his entitlement to an IRB. While the respondent was copied on the letter it is not addressed to him. While I accept that the PWC report states that the applicant did not provide his 2021 T1 General Income Tax Return, the applicant has not provided any evidence that a s. 33 request for this documentation was provided to the respondent subsequent to the report of PWC or at all.

23While I acknowledge that the respondent has not provided submissions in respect to this matter, the onus to prove that a wilful misrepresentation was made is on the applicant. I find that the applicant has not met this onus.

24For the reasons outlined above, I do not find that the respondent committed a wilful misrepresentation and therefore I do not find that the applicant is entitled to a repayment of IRBs.

Interest

25Section 52(5) and (6) of the Schedule provide guidance on when an insurer may recover interest on repayment. As I have found that no repayment is owed to the applicant, no interest is payable.

Costs

26Rule 19.1 of the Rules provides for the Tribunal to order costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 lists the factors to consider when adjudicating a request for costs.

27The applicant requests costs in the amount of $500.00.

28The applicant submits that the respondent's continued silence and failure to respond to the applicant's requests for information and repayment have resulted in unnecessary delay and expenditure of the Tribunal's adjudicative resources by requiring the within application to be filed.

29As I have found that the applicant has not submitted any evidence to support its argument that the respondent failed to respond to the applicant's requests for information, I do not find that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith.

30For the reasons outlined above, I decline to award costs and find that the respondent's conduct does not meet the criteria set out in Rule 19.1.

ORDER

31For the reasons outlined above, I find:

i. The applicant is not entitled to a repayment of $2,810.65 relating to its payment of IRBs for the period of February 8, 2022 to July 1, 2022;

ii. The applicant is not entitled to interest or costs; and

iii. The application is dismissed.