Category: Income Replacement Benefits

Zabarain v. Coseco Insurance Company (2026 ONSC 3712)

Post author By tgp-admin
Post date June 30, 2026
No Comments on Zabarain v. Coseco Insurance Company (2026 ONSC 3712)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs, that he was required to repay an overpayment of IRBs, and that the insurer did not wrongfully pay a hospital account. The Tribunal found that the claimant had returned to work as a lawyer and did not meet the post-104 week IRB test, and that his receipt of IRBs after his return to work resulted in an overpayment of IRBs. The Tribunal also found that the insurer properly paid for a large hospital account that was invoiced to the claimant due to being a non-resident. The Court dismissed the appeal. The Court concluded that the insurer properly paid for the hospital account when it received the hospital invoice and that an OCF18 was not required. Furthermore, nothing in the SABS prohibited an insurer from paying for an incurred expense that was related to the accident. The Court accepted that the Tribunal mis-stated the law on wilful misrepresentation, but that the error did not affect the outcome because the claimant had withheld employment information that resulted that was detrimental to the IRB claim.

Coban v. Allstate Insurance Company (2026 ONSC 1925)

Post author By tgp-admin
Post date March 31, 2026
No Comments on Coban v. Allstate Insurance Company (2026 ONSC 1925)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs because he was receiving WSIB at the time of the accident rather than income from an employer. The Court allowed the appeal, holding that the claimant was an employed person at the time of the accident, even though he was not receiving income directly from his employer. The claimant was participating in a retraining program through his employer and WSIB, and intended to return to work, had the car accident not occurred. The Court reasoned that the Tribunal’s interpretation of the term “employed” was too narrow and defeated the consumer protection nature of the SABS.

Rochon v Intact Insurance Company (24-009951)

Post author By tgp-admin
Post date March 25, 2026
No Comments on Rochon v Intact Insurance Company (24-009951)

The claimant was involved in an automobile accident in September 2020. She applied to the LAT seeking entitlement to post-104 IRBs. At the time of the accident, the claimant had been employed as a janitor/custodian for 7 years. Prior to that, she worked as a kitchen helper in a restaurant for 14 years. She had an incomplete high school education. The claimant argued that her accident-related right ankle injury, which required surgery, left her permanently unable to perform or retrain for any employment for which she was reasonably suited. The insurer agreed that the claimant had a complete inability to perform her pre-accident employment but submitted that there were reasonable alternative employment positions which she could do with training. Adjudicator Malach held that what constitutes reasonably suitable employment was “employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity. The work should also be comparable in terms of status and wages.” Adjudicator Malach found that the claimant was not physically capable of performing the positions proposed by the respondent, and, based on the claimant’s age and aptitude scores, it was not reasonable for her to pursue a GED. In addition, Adjudicator Malach concluded that the claimant “would require substantial retraining to perform any computer skills which is contrary to the principles set out in Burch.” The claimant was determined to be entitled to post-104 IRBs.

Mensah v Co-operators General Insurance Company (24-014094)

Post author By tgp-admin
Post date March 5, 2026
No Comments on Mensah v Co-operators General Insurance Company (24-014094)

The claimant was involved in an automobile accident in February 2022. She applied to the LAT seeking CAT determination under Criterion 8 and entitlement to IRBs, ACBs, and numerous medical benefits. The claimant brought a motion to exclude the surveillance evidence because the respondent did not comply with the case conference order to disclose the investigator’s handwritten notes, the surveillance agreement between the respondent and the investigation company, all communications between the investigator and the respondent, invoices, and unredacted adjuster log notes that relate to surveillance. The LAT found that the surveillance evidence was admissible because of the probative nature of the evidence. The LAT found that the claimant was not CAT and not entitled to the majority of the issues in dispute.

Hou v Aviva General Insurance Company (25-000946)

Post author By tgp-admin
Post date January 8, 2026
No Comments on Hou v Aviva General Insurance Company (25-000946)

The claimant was involved in an automobile accident in August 2023. He applied to the LAT to dispute IRB quantum and entitlement to medical benefits and a special award. The LAT found that the IRB quantum calculated by the insurer was correct as it was based on the self-employed claimant’s income in the last fiscal year. The LAT found that IRBs were not payable for the period prior to submission of an OCF-3, and also not payable for the period in which the claimant failed to comply with s. 33 requests for documents that were reasonably required to assess entitlement to IRBs. S. 33 suspensions of benefits were not upheld for periods related to requests that were not considered reasonable. The claimant was found to be entitled to part of the balance of an OCF-18 that was partially approved up to the MIG limits, but the LAT found that the amount proposed for a re-assessment was not reasonable and necessary. The LAT found that the claimant was entitled to a special award as the insurer unreasonably delayed approval and payment of IRBs

Traders General Insurance Company v. Rumball (2025 ONSC 656)

Post author By tgp-admin
Post date September 23, 2025
No Comments on Traders General Insurance Company v. Rumball (2025 ONSC 656)

The claimant appealed the Divisional Court’s decision that upheld the denial of post-104 IRBs. She argued that the Court and Tribunal failed to apply the proper test. In particular, the claimant argued that the Court failed to consider whether suitable employment existed in a real-world setting, and in putting the onus on her to prove her inability to work. The Court dismissed the appeal, holding that the post-104 IRB test required an evidence-based, contextual analysis. Factors such as competitive, real-world setting, status, and remuneration of alternative employment were relevant, but were not stand-alone requirements. The Court also held that the onus was on the insured to prove her entitlement to post-104 week IRBs.

Gutierrez v. Security National Insurance Company (2025 ONSC 5174)

Post author By tgp-admin
Post date September 17, 2025
No Comments on Gutierrez v. Security National Insurance Company (2025 ONSC 5174)

The claimant sought judicial review of the LAT’s decision that he was not entitled to IRBs, and the LAT’s refusal to add the claim for pain and suffering. The Divisional Court dismissed the judicial review, holding that the Tribunal considered the evidence before it when adjudicating the IRB claim, and that the Tribunal reasonably declined to add a claim for pain and suffering.

Park v. GEICO Insurance Company (2025 ONSC 4282)

Post author By tgp-admin
Post date July 23, 2025
No Comments on Park v. GEICO Insurance Company (2025 ONSC 4282)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The Court dismissed the appeal, holding that the claimant received a fair hearing, and that the alleged uneasonableness in factual and evidentiary findings was not proven. The record showed no unreasonableness in the Tribunal’s findings or inferences drawn from the findings.

Derenzis v. Gore Mutual Insurance Co. (2025 ONSC 2732)

Post author By tgp-admin
Post date June 5, 2025
No Comments on Derenzis v. Gore Mutual Insurance Co. (2025 ONSC 2732)

The claimant appealed the Tribunal’s decision that she was not entitled to IRBs due to IE non-attendance. The Court dismissed the appeal, concluding that the Tribunal did not make an error. The Court found that the IE notices were adequate, and that the Tribunal was entitled to consider the cumulative effect of the prior IE notices in determining compliance. The Court also rejected the arguments made by the claimant regarding the Tribunal lacking impartiality.

Gordan v Certas Direct (22-011660)

Post author By tgp-admin
Post date May 8, 2025
No Comments on Gordan v Certas Direct (22-011660)

The claimant was involved in an automobile accident in October 2020. She applied to the LAT seeking CAT determination under Criterion 8 and entitlement to IRBs. The LAT denied the claimant’s request to rely on a late-filed supplementary hearing brief as the prejudice to the respondent outweighed the probative value of the documents. The LAT found that the claimant was CAT under Criterion 8 due to marked impairments in three spheres of function, including Adaptation. Despite the CAT determination, the LAT found that the claimant was not entitled to post-104 IRBs. The LAT confirmed that applicants bear the burden of proving they meet the test and criteria for benefits, and the claimant failed to demonstrate entitlement to post-104 IRBs, in part due to her failure to tender expert opinion evidence addressing post-104 IRBs. In contrast, the insurer tendered expert opinion evidence on post-104 IRBs, which the LAT relied on for its decision.

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