Category: Income Replacement Benefits

Nash v. Aviva General Insurance Company (2022 ONSC 6723)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The claimant argued that the Tribunal incorrectly applied the SABS, misinterpreted the IRB sections, misapprehended the evidence, and breached natural justice. The Court dismissed the appeal, holding that there were no errors of law committed by the Tribunal. The Tribunal’s decision to deny IRBs flowed from the findings of fact made by the adjudicator. The findings of fact were permissible in light of the evidence before the Tribunal, and the Court would not reweigh the evidence. The application of the SABS and the IRB test to the findings of fact was an issue of mixed fact and law, which was not appealable. The claimant failed to raise any issues of law upon which a reversible error had been made.

Mariyadas v. Wawanesa Mutual Insurance Company (19-011670)

The claimant applied to the LAT for entitlement to IRBs of $400 per week ongoing from the date of loss, a treatment plan for physical therapy, and a special award. The insurer agreed that the claimant met the medical test for IRBs, but disagreed on the quantum. The claimant nevertheless requested that the LAT order the insurer to pay IRBs on an ongoing basis. Adjudicator Johal held that she did not have jurisdiction to order the insurer to pay IRBs on an ongoing basis, as there was no dispute between the claimant and the insurer. She declined to follow FSCO cases which had made such orders. In terms of the IRB quantum, Adjudicator Johal accepted the insurer’s calculations. The claimant was self-employed as a 50 percent owner of a cleaning company with her husband. The claimant and insurer disagreed on how to treat post-accident subcontractor expenses. The claimant’s accountants attributed the full amount of subcontract expenses to the claimant. The insurer’s accountants attributed only 50 percent of the expenses. Adjudicator Johal rejected the claimant’s accountant’s report, as it relied on outdated FSCO cases and did not follow the recent decision in Surani v. Perth. Adjudicator Johal held that the post-accident expenses had to be apportioned in accordance with the claimant’s ownership of the company. The disputed treatment plan was awarded as physiotherapy provided ongoing pain relief. A special award was not granted. Adjudicator Johal held that it was reasonable for the insurer to request ongoing business records in accordance with its obligation to continuously adjust the claim.

Majerczyk v. Economical Mutual Insurance Company (20-004327)

The claimant applied to the LAT seeking CAT determination under criteria 7 and 8 and entitlement to post-104 IRBs, ACBs, and various medical benefits. Vice-Chair Johal found that the claimant was not catastrophically impaired and was not entitled to ACBs, assistive devices, the in-dispute psychology treatment, or occupational therapy treatment. The claimant was entitled to IRBs, medical marijuana, lidocaine injections, physiotherapy, and a psychology assessment. With regards to CAT determination, Adjudicator Johal stated that while it was clear the claimant suffered impairments as a result of the accident and had limitations and restrictions to her daily life, simply showing that she was restricted and limited is not sufficient to meet the CAT test under the SABS.

Arab v. Unica Insurance (2022 ONSC 5761)

The claimant appealed the Tribunal’s decision that he was not employed at the time of the accident, and was therefore not entitled to IRBs. The claimant had only worked 20 weeks in the past 52 weeks, and was absent from at the time of the accident, but was not formally terminated until after the accident. The claimant argued that he should be considered employed because his termination post-dated the loss. The Court dismissed the appeal and agree with the Tribunal that the claimant was not employed at the time of the accident. The Court held that the term “employed”, while not defined in the SABS, must be read as connected to income-earning and receiving wages in exchange for services being rendered. The claimant’s position regarding the term “employed” would not accord with the purposes of the SABS, which is to link the payment of IRBs to a person’s position as an earner of wages, salary, or other remuneration.

C.P. v. Certas Home and Auto Insurance Company (2022 ONSC 5978)

The claimant appealed the Tribunal’s decision dismissing his claim for further IRBs, arguing that the Tribunal erred in allowing IE reports to be admitted without the Expert’s Duty form being completed, in applying the IRB test, and by failing to provide procedural fairness or natural justice. The Court dismissed the appeal. The Court held that the Tribunal had the discretion under the Rules to admit the IE reports without the expert’s form, and that the claimant had ample notice of the insurer’s reliance upon the IE reports. The Court also wrote that the Tribunal’s treatment of the IRB claim was entirely fair and supported by the SABS and the evidence before the adjudicator. Finally, the Tribunal found no denial of procedural fairness or natural justice. The claim was processed and managed within the parameters of the LAT Rules, and the claimant was made well aware of the insurer’s position and evidence it was relying upon.

HIbbert v. Aviva General Insurance (20-009328)

The claimant applied to the LAT seeking further entitlement to IRBs and a determination of the appropriate quantum of IRBs. The accident occurred in 2017. The claimant’s 2017 OCF-2 and other information submitted to the insurer characterized him as being employed before the accident. However, the claimant’s tax returns for 2016 and 2017, which were filed in 2021, showed him to be self-employed in 2016 and not working in 2017. Credibility was a key issue noted by the LAT. Adjudicators Grant and Lobu found that the information provided by the claimant about his income and business arrangements was so inconsistent, unverified, and incomplete that the insurer could not be reasonably expected to rely upon such information. The claimant failed to satisfy his duty under s. 33(1)1 of the SABS to provide information reasonably required to assist the insurer in determining entitlement to IRBs. Adjudicators Grant and Lobu found that as there was no reasonable evidentiary basis upon which to assess the quantum of IRBs, the LAT could not find that there was an overdue payment. The application was dismissed.

Aviva General Insurance Company v. Manalastas (20-010171) & Manalastas v. Aviva General Insurance Company (20-007000)

The claimant sought entitlement to a number of OCF-18s, as well as a special award and interest. The insurer sought repayment of IRBs for the period of July 21, 2018 to December 2, 2018 in the amount of $6,865.97, and from December 2, 2018 to March 10, 2019 in the amount of $5,600.00. At the time of the accident, the claimant was working full-time at Pool People Limited, and also working part time at Longo’s. The claimant initially missed two months of work following the accident prior to returning full-time at Pool People, and returned to employment at Longo’s on July 30, 2018 on modified duties, and eventually returned full time on August 3, 2019. The claimant did not inform the insurer of the return to work. The claimant was paid $400 weekly in IRBs starting May 9, 2018 based on the OCF-10. Once the insurer discovered that the claimant had been working while receiving IRBs, the claimant was served with a notice of repayment pursuant to s.52 of the SABS for the period of July 21, 2018 to December 2, 2018 in the amount of $6,865.97. The insurer did not receive a response to this repayment request. The insurer also submitted that it was entitled to repayment of $5,600.00 for the period of December 2, 2018 to March 10, 2019. The insurer stated that the claimant had provided pay stubs at the Case Conference for the second disputed period, which showed an income of $8,689.55 in income from Pool People Limited. The insurer submitted that the repayment request should not be barred, as the pay stubs were only disclosed to them on February 17, 2021. In terms of the first disputed period, July 21, 2018 to December 2, 2018, the claimant stated that they could not afford to pay the lump sum back all at once, and had agreed to repay $200 monthly to the insurer. Adjudicator Kepman found that the insurer’s notice of repayment was compliant with s. 52 of the SABS, and had met the three part repayment test from case law. The claimant was ordered to repay $6,865.87, plus interest. In relation to the claimant’s request for an ongoing repayment schedule of $200 monthly, Adjudicator Kepman found no authority to order same. The claimant was therefore ordered to repay the full amount and interest, minus any amounts already repaid. In terms of the second disputed period, December 2, 2018 to March 10, 2019, Adjudicator Kepman noted that, while the claimant did not deny that they were working full-time during this period and receiving an IRB, no request for repayment under s. 52 had been provided. The insurer stated that it had only become aware of the issue at the Case Conference, when the pay stubs were disclosed, and had raised the issue at both the Case Conference and the Application to the LAT for repayment. Adjudicator Kepman noted that despite the insurer noting the issue and filing an Application, at no point was a proper repayment request pursuant to s. 52 provided to the claimant after either the Case Conference, or the filing of the LAT Application. As such, the request for repayment for the second period of dispute was dismissed.

Eid v. Allstate Insurance Company of Canada (20-001143)

The self-employed claimant applied to the LAT seeking entitlement to IRBs for various periods since the 2017 accident and a determination of the appropriate quantum of IRBs. The issues in dispute included the following: What is the proper period to calculate the claimant’s IRBs in these circumstances? Does the calculation provided for in s. 4(3) of the SABS infringe the Ontario Human Rights Code? If the calculation of the IRB in these circumstances infringes the Code, is it appropriate to craft an individual remedy which does not infringe the Code? The self-employed claimant argued that her pre-accident fiscal year income was negatively affected by her pregnancy and maternity leave. The claimant submitted that the LAT should interpret s. 4(3) to permit calculation of her IRB on the basis of the last 52 weeks rather than the last fiscal year. Adjudicator Kaur found that s. 4(3) of the SABS infringes the Code on the ground of sex/pregnancy, but the Code does not authorize her to craft the remedy sought by the claimant. Adjudicator Kaur found that s. 4(3) applied as the claimant was self-employed at the time of the accident, and the quantum must be calculated based on the last completed taxation year before the accident, and that the claimant could not rely upon the 52 weeks prior to the accident.

Aviva Insurance Company of Canada v. Spence (2022 ONSC 4988)

The insurer appealed the Tribunal’s decision that EI sickness benefits are not deductible from IRBs as “gross employment income”. The Court reversed the Tribunal’s decision, holding that there was no ambiguity in the SABS, and that EI sickness benefits were deductible as “gross employment income”. The Court wrote that the Tribunal erred in not treating EI benefits similarly under the four sections it appears. The four sections operate together to treat EI benefits as income, regardless of whether they were being received before the accident, and treats all EI benefits similarly, regardless of the reason for which the benefits are being paid. There was no conflict in between the way EI benefits are deducted as gross employment income from IRBs and the way in which they are excluded from the definition of temporary disability benefits. The framing of the provisions ensured that EI benefits are treated consistently.

Lynch v. Intact Insurance Company (20-014497)

The claimant applied to the LAT seeking CAT determination under Criteria 8 and entitlement to post-104 IRBs . Vice-Chair Shapiro applied the “but for” test to the issue of causation. Vice-Chair Shapiro found that the claimant’s current stand-up comedy activities were a “hobby” and not a career that disqualified the claimant from post-104 IRBs. The “hobby” netted the claimant part-time income that was “not nearly commensurate with his pre-accident position.” The claimant was entitled to post-104 IRBs less post-accident income and any applicable deductions, including deductions for CPP disability benefits. The CAT analysis focused on whether the claimant had a Class 4 impairment in ADLs. Vice-Chair Shapiro considered the claimant’s very mild functional limitations on most days as well as his limitations in acute periods and found that overall the clamant had an ADL rating lower than a Class 4. The claimant was found not to be CAT as he did not suffer a Class 4 impairment in 2 of the 4 domains.