Ontario's Licence Appeal Tribunal has rejected TD General Insurance's bid to claw back income replacement benefits over alleged Uber-related misrepresentation.
In a decision released May 28, 2026, Vice-Chair Julian DiBattista dismissed TD General Insurance Company's application seeking repayment of $3,542.86 in income replacement benefits paid to Adeola Fapohunda, who was injured in an automobile accident on April 21, 2023. The matter is reported as TD General Insurance Company v. Fapohunda, 2026 CanLII 51013 (ON LAT).
TD had paid the IRB for the period of April 28, 2023 to June 28, 2023, then later moved to recover the funds. The insurer's position relied on a single piece of evidence: a note in the claimant's Employment Insurance file dated December 13, 2023, indicating she had been self-employed as an Uber driver.
TD argued the respondent had a duty to notify the insurer regarding her Uber activities, framing them as a material condition for underwriting risk on the contract of automobile insurance. The insurer characterized the omission as a wilful misrepresentation that should disentitle her to income replacement benefits and trigger repayment under section 52 of the Statutory Accident Benefits Schedule.
The Tribunal was not persuaded.
Section 52 makes a person liable to repay benefits paid as a result of an error, wilful misrepresentation, or fraud. The burden of proof rests with the insurer on a balance of probabilities. DiBattista found TD did not clear that bar.
The EI note showed the respondent was working less than 15 hours a week driving for Uber, with the work quantified as under $1,000.00 annually. The note also indicated she had not engaged in driving for Uber since the start of her EI claim, though the start date was not provided. That note was the only piece of evidence TD adduced.
The respondent submitted she acted in good faith at all material times and confirmed she had sporadically driven for Uber. Her submissions did not detail the vehicle she used while driving for Uber. There were no submissions or evidence suggesting she continued her self-employment while receiving income replacement benefits.
A central problem for TD: the insurer argued the respondent had used the insured vehicle for commercial purposes in contravention of the insurance contract, but pointed to nothing showing that was actually the case.
"Submissions are not evidence," DiBattista wrote, finding TD had not met its burden to prove the respondent was using her vehicle for commercial purposes.
While the respondent may have driven for Uber prior to the accident, the Vice-Chair concluded, it had not been proven that she used the insured vehicle in contravention of the insurance contract or made a material misrepresentation. On a balance of probabilities, TD had not proven wilful misrepresentation warranting repayment of the IRB.
The application was dismissed. Because the repayment claim failed, the question of whether interest on overdue amounts should be added as an issue in dispute - which TD said had been omitted in error from the April 16, 2025 case conference report and order - became moot.
The decision turned on what TD did not put before the Tribunal. There was no evidence connecting the respondent's Uber activity to the insured vehicle, and no evidence she continued that activity while receiving IRBs. On those gaps, the section 52 application failed.
