Co-Operators General Insurance Company v. Branden (2022 ONSC 2473)

The insurer appealed the LAT’s decision which found that it was not permitted to deduct an LTD litigation settlement from the claimant’s ongoing IRBs. The Divisional Court rejected the appeal. The Court noted that the Tribunal made a finding of fact that the LTD settlement did not provide appropriate details to allow the insurer to deduct it from IRBs, because the settlement was not confined to payment for the LTD claim alone; it also included claims for punitive damages, costs, and interest. The release did not specify how much of the settlement was attributed to each head of damages in the LTD litigation. The Court rejected the analogy between IRB deductions and section 267.8 of the Insurance Act, which provided a separate basis for deduction of collateral benefits in the tort context.

Foster v. Aviva General Insurance Company (19-014657)

The claimant sought reconsideration of the Tribunal’s decision that the CERB / CRB was deductible from IRBs. The insurer agreed with the claimant that the Tribunal’s decision was an error. Vice Chair Boyce granted the reconsideration and held that CERB / CRB was not deductible from IRBs because it was not “gross employment income” or “other remuneration from employment”, and was not analogous to “salary, wages and other remuneration from employment”.

Parker v. Aviva Gen. Ins. Co (19-010703)

The claim arose out of a dispute as to the appropriate quantum for IRBs. Prior to the accident, the claimant held both a full-time and a part-time employment position. She submitted two OCF-2s. The parties disagreed as to the appropriate calculation for the part-time income. The insurer calculated IRBs using the claimant’s income for the four weeks prior to the accident. The claimant argued that this was inappropriate and that she should be able to designate whichever period (4 weeks or 52 weeks) for the part-time employment that resulted in the higher overall IRB, even if alternative period was used for the full-time employment. Vice-Chair Boyce disagreed with the claimant, noting that there is no mechanism that allows a person to mix-and-match the time period designations. The SABS requires that remuneration be lumped together, regardless of whether it stems from a single employer. Therefore, on a plain reading of the IRB definitions section, all of the claimant’s income should be combined, and then the claimant had the opportunity to select the calculation (4 weeks or 52 weeks) that is most beneficial to her circumstances. A mix-and-match approach would have the effect of creating an arbitrary distinction between individuals who make the same income but have numerous employers. The claimant’s second argument was that the deduction of CPP benefits constituted a repayment under section 52 of the SABS and the insurer failed to provide the proper notice required. Vice-Chair Boyce again disagreed with the claimant’s interpretation, noting that the insurer’s notice was clear that it was only deducting CPP on a go-forward basis. There was no request for repayment of past IRBs, so no notice was required under section 52.

Dooley v. Aviva General Insurance (20-006951)

The insurer filed a Notice of Motion seeking a ruling that the claimant was precluded from proceeding with his application with respect to IRBs from the date of the loss to 104 weeks post-accident because the claimant failed to submit a Disability Certificate (OCF-3) supporting entitlement. Adjudicator Mazerolle agreed with the insurer and concluded that the claimant was unable to proceed with the application for an IRB for the time period in dispute. Adjudicator Mazerolle stated that the language of section 36(2) and (3) is clear: an insured person must submit a completed OCF-3 before they can request a specified benefit. While the claimant contended that his OCF-18s should have been a clear indication of his intent to claim an IRB, the obligation to adjust a claim for a specified benefit did not start until there is was completed OCF-3. Finally, Adjudicator Mazerolle found that section 129 of the Insurance Act (relief from forfeiture) was not available as a remedial provision as it did not apply to accident benefits disputes before the Tribunal.

Ababio v. TD Insurance Meloche Monnex (20-001415)

The insurer denied IRBs effective March 12, 2019, but paid the claimant in error. The insurer requested repayment from the claimant under section 52 of the SABS. The claimant did not repay the requested amount, stating he was unable to work since the subject accident, and only began to work again in January 2020. The claimant filed a LAT Application claiming ongoing IRBs and various medical benefits; the insurer claimed repayment. Vice Chair Farlam ruled in the insurer’s favour, noting that a review of the claimant’s employment documents and union file showed that he was paid for 219 hours of work during the time he was receiving an IRB from the insurer. Furthermore, his treatment records indicated that he complained of a sore back “after work” during this time period, and that the EI file noted that the claimant left his job post-accident due to a “stoppage of work/end of contract” and not due to the accident. Vice Chair Farlam ruled that the requests for repayment under section 52 were complaint, even though the amounts requested were adjusted by the insurer as more evidence became available. She awarded the insurer $1,619.99 in overpaid IRBs plus interest. The remainder of the claimant’s application was dismissed.

Kfouri v. TD General Insurance Company (19-006916)

The claim arose out of a dispute for the appropriate quantum for IRBs. The claimant argued that she was employed, rather than self-employed, at the time of the accident and that her IRB payments should be calculated based on employment income. The insurer argued that according to the claimant’s tax returns she was actually self-employed and that IRBs should be determined accordingly. Adjudicator Norris agreed with the insurer, citing that IRB payments are to be based on the claimant’s income as reported to the CRA, pursuant to section 4(5) of the SABS. The claimant’s reported earnings were consistent with that of a self-employed individual and thus IRBs must be calculated using the self-employment formula. Adjudicator Norris also determined that the claimant was not entitled to an award for the delayed payment because she had provided inaccurate account of her employment status, and it was therefore reasonable for the insurer to seek additional information.

Giannoylis v. Travelers Insurance (20-000280)

The parties agreed that the claimant met the test for IRB entitlement, but disagreed on the quantum of IRBs payable. The claimant worked as a self-employed labourer for a construction business that was owned and operated by his father. Adjudicator Lake found that the claimant’s weekly base income under the SABS was $355.58. However, the analysis did not end there. The claimant did not produce any post-accident income tax returns and/or notices of assessment, but his bank statements revealed deposits totaling $105,581 in 2019 and $73,924 in 2020. The claimant did not provide additional information regarding the post-accident deposits as required by an Order by the Tribunal, other than to state that the deposits were “loans”. Given the deduction that the insurer is entitled to make as a result of an claimant’s post-accident income, Adjudicator Lake was unable to determine the amount of IRBs payable for the period of entitlement, so the claim was dismissed.

Giannoylis v. Travelers Insurance (20-000280)

The parties agreed that the claimant met the test for IRB entitlement, but disagreed on the quantum of IRBs payable. The claimant worked as a self-employed labourer for a construction business that was owned and operated by his father. Adjudicator Lake found that the claimant’s weekly base income under the SABS was $355.58. However, the analysis did not end there. The claimant did not produce any post-accident income tax returns and/or notices of assessment, but his bank statements revealed deposits totaling $105,581 in 2019 and $73,924 in 2020. The claimant did not provide additional information regarding the post-accident deposits as required by an Order by the Tribunal, other than to state that the deposits were “loans”. Given the deduction that the insurer is entitled to make as a result of an claimant’s post-accident income, Adjudicator Lake was unable to determine the amount of IRBs payable for the period of entitlement, so the claim was dismissed.

Parameswaralingam v. Echelon General Insurance Company (19-005907)

The claimant applied to the LAT disputing entitlement to IRBs and a special award. The insurer argued that the claimant was barred from claiming accident benefits based on section 61. The claimant conceded that he was working at the time of the accident, but argued that he was not entitled to benefits from WSIB and argued that the insurer had not properly investigated the issue prior to the LAT hearing. Adjudicator Lake agreed with the claimant that the WSIB issues was not properly before her, as the section 61 defence had not been raised in any earlier Case Conference. Regarding entitlement to IRBs, Adjudicator Lake found that the OCF3 was only properly submitted in April 2019. An earlier version had been faxed to an incorrect fax number rather than the number given in accordance with section 64(21). The insurer’s denial in April 2019 was not clear as it said that the claimant both qualified and did not qualify for IRBs. Only in February 2020 did the insurer provide a proper section 36 notice. Adjudicator Lake ordered the insurer to pay IRBs for the period April 2019 to February 2020. However, the claimant failed to provide sufficient information for the Tribunal to calculate the IRBs (no income tax returns for the 52 weeks prior to the accident or post-accident were provided), so no amounts were payable. The claim for a special award was also dismissed.

A.H. v. Aviva Insurance Canada (19-004639)

The claimant applied to the LAT seeking entitlement to IRBs and medical benefits. Vice-Chair McGee found that the claimant failed to meet the substantive test for IRBs. The claimant submitted that under s. 36 of the SABS the insurer was required to pay IRBs for a five-month period because the insurer failed to request insurer examinations within 10 days of receipt of the claimant’s OCF-3. Vice-Chair McGee found that the insurer was not required to pay IRBs during this period because the insurer requested an Election of Benefits (OCF-10) within 10 days of receipt of the OCF-3, and the claimant failed to submit a completed OCF-10. Vice-Chair McGee held that the s. 35 requirement to elect a benefit is mandatory and unambiguous. Failure to complete this step renders an application for a specified benefit incomplete. The claimant’s OCF-2 did not eliminate the ambiguity in the OCF-3, which supported IRBs and NEBs, and did not stand in the place of an OCF-10 election. The applicant’s failure to elect a specified benefit meant that the insurer’s obligations under s. 36 were never triggered. The application was dismissed.