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Judicial review dismissed; post-accident business income is deductible from IRBs without requiring active engagement.
The applicants sought judicial review of a Director's Delegate decision finding that post-accident business income from a family pharmacy should be deducted from the applicant's income replacement benefits (IRBs) under s. 7(3)(b) of the Statutory Accidents Benefits Schedule (SABS).
The applicant argued that 'earned' income required active engagement in the business.
The Divisional Court upheld the Director's Delegate's decision as reasonable, agreeing that a contextual interpretation of the SABS focuses on the profit and loss of the business rather than requiring active participation by the self-employed person.
Post-accident business profits of a self-employed person are deductible from income replacement benefits regardless of active participation.
The insurer appealed an arbitrator's decision that a self-employed pharmacist's post-accident business income was not deductible from her income replacement benefits (IRBs).
The arbitrator had found that the insured was not 'actively engaged' in the business post-accident, relying on a definition of 'earned income' from the Income Tax Act.
On appeal, the Director's Delegate held that the arbitrator erred by applying an irrelevant definition from the Income Tax Act and by reading an 'active participation' requirement into the deduction provision.
The Delegate concluded that a self-employed person's post-accident income is the profit of the business, which is deductible from IRBs regardless of the insured's level of active participation.
The appeal was allowed in part, and the post-accident business income was ordered to be deducted from the IRBs.
