An Ontario tribunal has ordered a claimant to repay $17,144 in income replacement benefits after ruling that months of undisclosed work amounted to wilful misrepresentation.
The respondent was injured in an automobile accident on July 28, 2021, and began receiving an income replacement benefit (IRB) from TD General Insurance Company under Ontario's Statutory Accident Benefits Schedule. TD became aware on April 28, 2024 that the respondent had returned to work on multiple occasions and applied to the Licence Appeal Tribunal for a repayment of $17,144, covering IRBs paid between May 30, 2022 and May 5, 2023.
In a sworn affidavit dated May 8, 2025, the respondent confirmed he had worked across five separate periods between May 30, 2022 and May 5, 2023, totalling 311 days of employment while continuing to collect the benefit. He did not tell TD about the work or the income he earned during any of those periods.
Vice-Chair Julian DiBattista applied a definition of wilful misrepresentation drawn from an earlier tribunal decision, describing it as an assertion, through words or conduct, that does not align with the facts, and noting that silence or a failure to report can qualify. The burden of proving misrepresentation rested with TD.
The respondent argued he did not know he had a duty to report his post-accident employment, and that as a self-represented person at the time, he should have been guided by the insurer. He also pointed to statements he made during section 44 examinations about short-term attempts to return to work. DiBattista rejected both arguments. TD, he found, had already given that guidance in a benefit denial letter dated May 8, 2023, which asked the respondent to disclose any post-accident employment income. Telling a section 44 assessor, he added, is not the same as notifying the insurer.
DiBattista found that the respondent's continued silence, even after TD asked directly, combined with the length and repetition of the undisclosed work, amounted to "a pattern of silence" that constituted wilful misrepresentation. That finding meant the usual 12-month limit on an insurer's notice of repayment under section 52(3) of the Schedule did not apply, since wilful misrepresentation or fraud removes that restriction. TD's repayment notice, sent August 14, 2024, was therefore valid.
The decision also addressed a procedural dispute. TD objected to a sur-reply the respondent filed on November 3, 2025, arguing it had the right to the final word as the party bearing the onus of proof. DiBattista allowed the sur-reply after finding TD's own reply had introduced a new argument, though the additional submissions did not change the outcome.
The tribunal ordered the respondent to repay the full $17,144 IRB amount plus interest under section 52(5) of the Schedule. The decision was released August 6, 2026.
