Category: Income Replacement Benefits

Switzer v. Waterloo Insurance (19-011403)

The claimant disputed his entitlement to attendant care benefits, housekeeping expenses, and two chair lifts. He also disputed the weekly quantum of IRBs he was entitled to receive. The claimant also sought a special award. The insurer argued that the accident was not the cause of the claimant’s impairments, and that they all pre-existed the accident from six earlier motor vehicle accidents. The insurer also argued that the claimant made material misrepresentations in relation to his claim for housekeeping expenses. Adjudicator Lake found that the accident was a necessary cause that exacerbated the claimant’s pre-existing psychological and cognitive conditions, but did not cause the claimant any new physical impairments or exacerbate his previous physical conditions. Adjudicator Lake declined to award ACBs because the claimant failed to prove that any expenses were incurred. The claimant failed to call his alleged service provider to give evidence and could not prove that the service provider was a professional acting in the course of his employment or self-employment. Adjudicator Lake also wrote that she would have declined to award ACBs due to the claimant’s failure to prove the service actually provided to him. There were no time dockets, daily logs, job diaries, or any information about the dates and times services were performed. Regarding HK expenses, Adjudicator Lake held that the claimant failed to prove that he suffered a substantial inability to complete his home maintenance and housekeeping tasks as a result of the accident. Regarding IRBs, Adjudicator Lake held that the claimant was entitled to $711.15 per week in IRBs during 2018 and $1,000 per week from January 2019 onwards. The claimant was self-employed as a lawyer at the time of the accident, and was a partner at a law firm prior to that. The last full fiscal year worked by the claimant at the law firm was 2016. The claimant did not complete a fiscal year at either his own law firm or as a partner at a law firm in 2017. Adjudicator Lake rejected the insurer’s position that consideration of self-employment income was restricted to a business being operated at the time of the accident. The claimant continued to practice law after the accident, so the insurer was entitled to deduct post-accident earnings in accordance with the SABS. No evidence was provided of the claimant’s income from 2019 onwards. Adjudicator Lake declined to grant a special award, as the only benefit found payable was IRBs, and the interpretation of the SABS that led to the dispute was not excessive, imprudent, or stubborn. Finally, Adjudicator Lake rejected the insurer’s position that the claimant made material misrepresentations in relation to the claim for HK expenses. She agreed that the housekeeper’s testimony called into question evidence given by the claimant regarding creation of invoices, the discrepancy was not a “material fact” with respect to the application for HK expenses; the discrepancy related to the author of the invoices rather than the content.

N.F. v. Aviva Insurance Company (18-007077)

The insurer sought reconsideration of the Tribunal’s award of IRBs of $400.00 per week from March 2 to December 18, 2018. The insurer argued that the Tribunal erred by awarding IRBs during the period November 1 to December 18, 2018 when the claimant returned to work on a modified basis. Adjudicator Mazerolle agreed with the insurer and held that the Tribunal erred in awarding IRBs during the seven week period as the Tribunal ought to have required the claimant to prove that he continued to meet the substantial inability test during that period rather than looking to the insurer to disprove the claimant’s entitlement. Adjudicator Mazerolle rejected the insurer’s arguments relating to use of the claimant’s updated Notices of Assessment to calculate IRBs, holding that the claimant was permitted to refile his income tax, and the CRA accepted the refiling.

Williams v. Aviva General Insurance Company (19-007941)

The claimant applied to the LAT disputing entitlement to IRBs. The insurer denied entitlement in June 2017. The LAT application was made in July 2019. Adjudicator Lake accepted that the LAT dispute was commenced outside the limitation period by a few weeks, and thus barred by the limitation period. She also held that she did not have jurisdiction to extend the limitation period under the LAT Act.

M.N. v. Aviva General Insurance (19-001788)

The insurer raised a preliminary issue in respect to whether the claimant was involved in two accidents. Adjudicator McGee found that the claimant was involved in both an April 8, 2016 accident and an October 4, 2016 accident. The facts of this case are unusual. At the time of both accidents, the claimant was incarcerated at a provincial correctional system. On April 8, 2016, correctional authorities transferred the claimant, handcuffed and shackled, in a prisoner transfer van from the Ottawa-Carleton Detention Centre to the Central North Correctional Centre, an approximate 8 hour drive. On April 8, 2016, the claimant sat unrestrained with three folded blankets to use as cushioning. On October 4, 2016, the claimant was transferred from Toronto East Detention Centre to downtown Toronto for a court appearance. He was handcuffed and unrestrained by a seatbelt. The claimant claims that both of these transfers triggered back pain and exacerbated his pre-existing back pain. The claimant argued that the incident in question was the claimant being forced to ride in an awkward position. This was due to a combination of factors, including the hard material of seating, the absence of a safety restraint, and the inability of the claimant to reposition or stabilize himself. The respondent argued that these occurrences were not an accident, and that the claimant merely used the seats of the vehicles as they were intended to be used. Adjudicator McGee found in favour of the claimant, noting that the term “incident” in the SABS should be given a fair, largely and liberal interpretation that best ensures the attainment of its consumer protection objection. Adjudicator McGee dismissed the insurer’s argument that the claimant was using the seats in its ordinary use, noting that this was not ordinary as the claimant was shackled, could not move freely, and was unable to request stops or breaks.

Singh v. Aviva Insurance Company (20-001519)

The claimant was involved in a accident on October 21, 2017, and was paid an IRB for one year. The insurer terminated the claimant’s IRB on the basis that they did not suffer a substantial inability to perform the tasks of their pre-accident employment. The claimant filed a LAT Application disputing IRBs up to the end of the 104-week period. The claimant was not employed at the time of the accident, but had worked for at least 26 of the previous 52 weeks as a security guard. One month prior to the accident, he resigned from his position as a security guard. Two days prior to the accident, he incorporated a technology and consulting business, which was a sedentary working position. The claimant argued that that he was also training for a physical evaluation to become a police officer at this time, which he was unable to complete due to his injuries, including an exacerbation of a pre-accident right knee injury. The insurer noted that, while the claimant could use his income from his security job position pre-accident, that he had resigned from this position more than a month prior to the accident and that he was working a sedentary position, which is what the pre-104 test should be based on. The insurer further noted that the claimant got a position with Amazon immediately following the period in dispute. Adjudicator Boyce ruled in the insurer’s favour, noting that a review of the records of the family physician showed no right knee complaints. Furthermore, while the claimant did submit several expert reports which diagnosed him with chronic pain, the reports did not state that he could not work, sit or stand for long periods of time, and many of these reports were authored outside of the IRB period in dispute.

B.L.J. v. The Co-Operators Insurance Company (18-012005)

The insurer requested reconsideration of the Tribunal’s decision awarding post-104 IRBs entitlement and interest. The insurer submitted that the Tribunal erred when it relied on the trial decision in Burtch v. Aviva that post-accident employment that is substantially different in nature, status, and renumeration may not be considered an appropriate alternative. The insurer noted that the decision had been overturned at the Ontario Court of Appeal and the Tribunal could not rely on it. The insurer also submitted it was an error to find the nature of the claimant’s employment at a residence for assisted living to be substantially different in nature, status, and renumeration such that it does not qualify as a reasonable alternative form of employment, and that the Tribunal erred in not considering that unpaid hours the claimant spent at the residence as work and to conclude that the claimant was incapable of working full-time. Adjudicator Victor noted the in the Burtch decision, the Court of Appeal disagreed with the application of the test based on the particular facts of that case, not the test itself. Adjudicator Victor further noted in the original decision, the Tribunal found the claimant’s current part-time job was not an appropriate alternative to her pre-accident employment at a fast-paced restaurant for a number of reasons including part-time hours, the nature of the work that was sedentary and light duties, along with her very accommodating employer. The claimant was found not to be especially successful at her part-time job and under different management, she would have been let go. Adjudicator Victor found contrary to the Burtch v. Aviva decision that the claimant did not have suitable alternative employment available and retraining would be substantial.

P.M. v. Aviva Insurance Canada (18-009518)

The insurer submitted a request for reconsideration arising out of a decision which found that the claimant was entitled to payment of IRBs during a period of section 33 suspension, arguing she had not provided a reasonable explanation for her non-compliance (namely that she believed the insurer could access the information). The insurer argued that it was not possible for the claimant’s explanation to be “reasonable” because it was only offered at the hearing for the first time and there was not objective evidence to corroborate it. Adjudicator Makhamra dismissed the insurer’s request for reconsideration, noting that the insurer provided no authority to support its position that the timing of the claimant’s explanation was too late to find it reasonable or that the Tribunal erred in finding the claimant’s examination to be reasonable.

Degroot v. Security National Insurance Company (20-005980)

The self-employed claimant disputed his entitlement to IRBs. The insurer agreed that the claimant was entitled to IRBs, but argued that the claimant had not provided sufficient evidence to calculate the weekly quantum. Adjudicator Watt held that the claimant had provided sufficient documentation to the insurer, having provided all of the documentation that the CRA required for tax returns, and noted that the insurer had not made any section 33 requests for further documentation. Because the insurer did not have a IRB calculation before the Tribunal, Adjudicator Watt relied on the claimant’s accountant in awarding IRBs plus interest. Adjudicator Watt dismissed the claim for a special award, stating that the insurer’s belief that it required additional records was due to reliance upon its accountant expert.

M.F. v. Belair Insurance Company (18-003847)

The claimant submitted a request for reconsideration arising out of a decision which found that he was not entitled to medical benefits and post-104 week IRBs because the claimant’s psychological impairments were not a result of the accident. The claimant’s reconsideration request was made on the basis that there was fresh evidence (a new IE report from the insurer) that was not before the Tribunal when rendering its decision. The IE report found that the claimant’s psychological impairments flowed from his accident-related chronic pain. Adjudicator Grieves accepted that the new report was not available at the hearing, could not have been obtain previously by the claimant given that the Tribunal’s decision was rendered three months prior to the claimant receiving the report, and that the evidence would likely have affected the result at the hearing. As such, she granted the request for reconsideration in part, finding that the claimant was entitled to post-104 week IRBs and some of the disputed medical benefits.

Smith v. Intact Insurance Company (19-014019)

The insurer brought a preliminary issue motion for an order staying the claimant’s IRB claim, as she had failed to file a mandatory form prior to applying to the Tribunal – the OCF-3. Vice Chair Flude found that the claimant had not filed her OCF-3 prior to commencing a proceeding before the Tribunal, and as such, she could not apply to the Tribunal for the relief sought until she satisfied the requirements of the SABS and had received a denial from the insurer. In doing so, he noted that the right to appeal to the Tribunal requires there to be a dispute over entitlement to benefits, and there can be no dispute over entitlement where there is no application for the benefit.