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.
