Category: Income Replacement Benefits

Yatar v. TD Insurance Meloche Monnex (2024 SCC 8)

The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. One of the main issues was whether the claimant was entitled to pursue judicial review of the Tribunal’s decision, in addition to the statutory right of appeal. The Tribunal’s decision was upheld by the lower appellate courts, and the lower courts held that judicial review was limited to exceptional circumstances. The Supreme Court allowed the appeal, holding that the claimant was entitled to pursue both the statutory right of appeal and judicial review. The Court also sent the matter back to the Tribunal for review of the denial of IRBs, as the Tribunal did not consider the effect of the reinstatement of IRBs on the subsequent denial.

Soldatovas v. Wawanesa Mutual Insurance Company (2023 ONSC 3440)

The claimant appealed the Tribunal’s denial of IRBs and a special award, arguing that the decision lacked procedural fairness, reasonableness, and did not consider key evidence. The Court dismissed the appeal, holding that the Tribunal provided the claimant with an opportunity to present his case, and holding that the Tribunal was not required to cite every document submitted by the claimant in its reasons.

Amadiegwu v. Aviva General Insurance Company (2023 ONSC 1256)

The claimant appealed the Tribunal’s decision dismissing her claim for IRBs. The Court dismissed the appeal holding that there was no extricable question of law. The Court also rejected the arguments that the Tribunal process lacked procedural fairness or that the Tribunal did not apply the correct test for causation.

Sookbir v. Wawanesa Insurance (20-008613)

The insurer and the claimant disputed at a preliminary issue hearing whether the claimant’s IRB claim ought to be barred for a failure to submit a completed OCF-3 to the insurer. The claimant submitted an OCF-3 form which indicated that she was not working in the 26 weeks before the accident and that she did not suffer a substantial inability to complete her pre-accident work duties. Adjudicator Kepman acknowledged that the claimant’s OCF-3 was confusing and contradictory. However, she found that the insurer had had a duty to seek clarification regarding the inconsistencies in the claimant’s OCF-3 but had failed to do so. Adjudicator Kepman held that the claimant’s OCF-3 was complete and that the claimant could proceed with her claim for IRBs before the LAT.

Kokulanthan v. TD General Insurance Company (20-011886)

The insurer raised a preliminary issue, arguing that the claimant’s entitlement to medical benefits and IRBs was barred for non-attendance at s. 44 examinations. Adjudicator Tavlin Kaur found that the insurer’s notices of examination in relation to IRBs did not comply with the SABS as they did not refer at all to the claimant’s medical conditions or the SABS provisions on which the insurer relied. The claimant was permitted to continue to a hearing for her IRB claim. Adjudicator Kaur found that the insurer’s notice with respect to medical benefits was satisfactory as it referenced the MIG, medical and rehabilitation benefits, and the claimant’s medical condition. The claimant’s claims relating to medical and rehabilitation benefits were barred from proceeding to a hearing. Adjudicator Kaur declined to exercise her discretion to allow the claimant to continue with these issues as she had not provided reasons for her non-attendance at the insurer examinations, nor had she made any written submissions at the preliminary issue hearing.

Waterloo Insurance v. Switzer (2023 ONSC 604)

The insurer appealed the Tribunal’s decision regarding the calculation of a self-employed person’s IRB where the person was self-employed for less than one year. The Tribunal allowed the claimant to use income earned from his previous employer, despite not being employed at the time of the accident and not being employed in the six months prior to the accident. The Court overturned the Tribunal’s decision, holding that the claimant was not permitted to use income earned through employment in calculating IRBs because he did not qualify for IRBs as an employed person. As a self-employed person at the time of the accident, the calculation of IRBs was limited to the calculation based on the last completed taxation year, as required by section 4(3). Due to the lack of evidence regarding the property calculation, the Court ordered a new hearing before the Tribunal, applying the proper section of the SABS.

Balasubramaniam v. Aviva General Insurance Company (21-001010/AABS)

The LAT found that the claimant was not entitled to a repayment of IRBs due to non-compliance with s. 33 of the Schedule. The claim was initially heard before Arbitrator Kowalski at the Financial Services Commission of Ontario where it was ordered that the insurer pay a weekly IRB. After the arbitration, the insurer was advised that the claimant had been earning income which could reduce the quantum of the IRB to nil. Adjudicator Grant agreed that the insurer could not rely on s. 287 of the Insurance Act to suspend or modify the Order for IRB payments but found that the insurer could suspend IRBs due to the claimant’s non-compliance with s. 33.

Schuknecht v. Economical Insurance Company (19-013098)

The insurer’s request for reconsideration was granted. The issue at the hearing was the correct calculation of the quantum of IRBs. The hearing adjudicator had found the claimant was entitled to IRBs in the amount of $172.00 per week after the claimant reached age 65. The insurer argued that the LAT made errors with respect to entitlement of IRBs and in awarding a post-65 IRB. In the Reconsideration Decision, Vice-Chair Maedel agreed that current entitlement to IRBs was not in dispute and only the quantum of IRBs was at issue. Therefore, reference to ‘entitlement’ or ‘up to age 65’ was removed from the original decision. In addition, Vice-Chair Maedel agreed with the insurer that the LAT violated rules of natural justice or procedural fairness when ordering entitlement to IRBs after age 65 because the claimant was 57 years of age at the time the decision was made. Vice-Chair Maedel found that imposing an IRB 8 years into the future was to speculate about the claimant’s condition, entitlement, and the status of the applicable law in the future. Vice-Chair Maedel stated that while the claimant’s entitlement to IRBs was ‘ongoing’, the term “ongoing” does not equate to “forever”. That being said, Vice-Chair Maedel noted the claimant was protected by terms of s. 281(2) of the Insurance Act, which states that following a Tribunal Decision, the insurer may reduce benefits only if the applicant agrees, the insurer is authorized to do so as a result of successful appeal of the Tribunal Decision, or the insurer is authorized to do so by the Tribunal.

Lacroix v. Intact Insurance Company (20-12380/AABS)

The claimant applied to the LAT seeking entitlement to IRBs. The insurer denied IRBs, noting that prior to the accident the claimant was working on a part-time basis and that she had managed to secure a position as a waitress after the accident. The claimant attempted to establish that her medical records showed that she sustained WAD II, tennis elbow, and disc bulges as a result of the accident, which prevented her from working. Adjudicator Kepman accepted these reports but found that they did not draw a meaningful nexus between the claimant’s injuries and the accident. Adjudicator Kepman found the insurer’s position to be more credible and determined that the claimant was not entitled to payment of IRBs.

Jeffery v. Travelers Insurance Company of Canada (20-013979/AABS)

The claimant was denied IRBs and medical benefits and sought entitlements to the benefits along with a Special Award from the Tribunal. The Tribunal held that the claimant was not entitled to IRBs or medical benefits for physiotherapy treatment. The adjudicator held that since no benefits were owed to the claimant, a s. 10 award was not applicable. The adjudicator found that the insurer did not comply with s. 36(4), which required that the insurer shall pay the benefit or give notice with medical reasons and any other reasons why it will not pay the benefit within 10 days of receiving an application and completed disability certificate. The insurer did provide notice to the claimant but did not provide medical reasons for refusing the application and relied on the fact that the claimant returned to work within 7 days of the accident. In addition, the insurer’s notice was not considered proper as it did not include the right to appeal the decision. Eventually, the insurer provided the proper notice with the appropriate medical reasons. The statutory entitlement for breaching s. 36(4) was determined to be for the period where the claimant was not given the proper notice. However, since the claimant was working during the period of statutory entitlement, the claimant’s actual entitlement was nil.