Neutral Citation: 1997 ONICDRG 49

OIC A95-000314

ONTARIO INSURANCE COMMISSION

BETWEEN:

REGINA SCHEKENE

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Regina Schekene, was injured in an automobile accident on January 10, 1995. She was not working at the time of the accident and received a Canada Pension Plan ("CPP") disability pension in the amount of $139.25 per week, in respect of an impairment that occurred before the accident. Mrs. Schekene continued to receive the pension after the accident. Following her automobile accident, Mrs. Schekene applied for and received weekly disability benefits under Part V of the Schedule¹ from Co-operators General Insurance Company ("Co-operators"). Co-operators paid Mrs. Schekene $45.75 per week, based on a rate of $185.00 per week less the CPP disability pension of $139.25 per week. Mrs. Schekene claimed that Co-operators was not entitled to deduct her CPP disability pension from the weekly benefits to which she was entitled under the Schedule. Co-operators disagreed. The parties were unable to resolve their dispute through mediation and Mrs. Schekene applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act").

The issue in this hearing is:

Is Mrs. Schekene's CPP disability pension deductible from her weekly disability benefits?

Mrs. Schekene also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Co-operators is not entitled to deduct Mrs. Schekene's CPP disability pension from the weekly benefits to which she is entitled under the Schedule.

2. Mrs. Schekene is entitled to her expenses incurred in respect of the arbitration hearing.

Hearing:

The hearing was held in Kitchener, Ontario, on April 29, 1996, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant: Regina Schekene

Mrs. Schekene's Representative: Mark S. Grossman, Barrister and Solicitor

Co-operators's Representative: Stephen M. Malach, Barrister and Solicitor

The proceedings were recorded by Ms. Gloria E. Kelly

Witnesses:

Mr. Terry de March

Exhibits:

Exhibits entered into evidence and other documents on the record are listed in an appendix to the decision.

Reasons for Decision:

Background Facts and Issue

Mrs. Schekene is 57 years old. She has not worked since May 1993.² She began receiving a "disability pension"³ under the Canada Pension Plan [Act]⁴ ("the Canada Pension Plan Act"), effective September 1, 1993.⁵ The medical report submitted by her family doctor, Dr. John Lu, to Health and Welfare Canada, Income Security Programs, in support of Mrs. Schekene's application for the disability pension, stated that she was suffering from chronic chest wall pain, no improvement was expected and that she was only capable of minimal activity.⁶ The medical reports submitted to Health and Welfare Canada, Income Security Programs, by another family doctor, Dr. R. N. Stemeroff, indicated that it was expected that she would not be able to return to gainful employment.⁷

On January 10, 1995, Mrs. Schekene was involved in an automobile accident. She sustained soft tissue injuries to her left leg, collarbone, neck and back and an exacerbation of her chest pain in the accident.⁸

Following her accident, Mrs. Schekene continued to receive her CPP disability pension, in respect of her problems before the accident. She applied for weekly disability benefits under Part V of the Schedule ("Other Disability Benefits" - Section 19) from January 17, 1995. Co-operators paid her weekly disability benefits in the amount of $45.75, based on a rate of $185.00 per week less the CPP disability pension of $139.25 per week,⁹ relying on section 75(4)1. of the Schedule. Section 75(4)1. provides as follows:

The insurer may deduct the following amounts from any weekly income replacement benefits payable to an insured person under Part II, any weekly education disability benefits payable to an insured person under section 15, any weekly caregiver benefits payable to an insured person under Part IV or any weekly disability benefits payable to an insured person under Part V:

1. Any temporary disability benefits being received by the insured person in respect of a period following the accident and in respect of an impairment that occurred before the accident. (Emphasis added)

Co-operators contends that the CPP disability pension or benefits which Mrs. Schekene has received following the accident are "temporary disability benefits" and therefore deductible from the weekly disability benefits to which she is entitled under Part V of the Schedule. Mrs. Schekene disagrees. She claims that she is entitled to weekly disability benefits, under Part V of the Schedule, in the amount of $185.00 per week.

Analysis

The issue to be determined, therefore, is whether CPP Disability Benefits are "temporary disability benefits."

In my opinion in order to determine whether CPP disability benefits are "temporary disability benefits," it is necessary first to consider the nature of these benefits and second to determine whether they are "temporary disability benefits," within the meaning of these words as used in sections 1 and 75(4)1. of the Schedule.

Nature of Canada Pension Disability Benefits

The Canada Pension Plan ("CPP") is a contributory, earnings-related social insurance program. It provides basic minimum level of benefits when a contributor to the Plan becomes disabled or retires; and on the contributor's death, the Plan provides survivor benefits.¹⁰ The Plan is funded by both employees and employers through a system of mandatory contributions based on the amount of wages and salaries paid by and to contributors.¹¹

According to section 44 of the Canada Pension Plan Act, "a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who has made contributions for not less than the minimum qualifying period."

The contributor must have made contributions to the Plan in either five of the last ten years preceding the start of disability, or in two of the last three years before the start of disability or two years if there are only two years in the contributory period. The contributory period commences January 1, 1966 or when the contributor reaches eighteen years of age, whichever is later, and ends with the month in which the person is determined to have become disabled.¹²Thus, the payment of a CPP "disability pension" is not contingent on the contributor being employed at the time the disability occurs. Entitlement to a disability pension would exist even though the contributor may have been unemployed for up to five years prior to becoming disabled as long as the person at some point contributed to the Plan for the requisite time period.

A contributor is considered to be disabled for the purposes of the Canada Pension Plan Act only if "...he is determined in prescribed manner to have a severe and prolonged mental or physical disability."¹³ (Emphasis added) The "severe" and "prolonged" criteria must be met simultaneously. The words "severe" and "prolonged" are defined as follows:

a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; ...¹⁴ (Emphasis added)

Mr. Terry de March, Director of Legislation Development, Policy and Legislation Division of the Income Security Programs, Human Resources Development Canada, testified that CPP disability benefits have been designed to be long-term benefits. This is evidenced by the test that an applicant must meet to qualify for these benefits - a severe and prolonged disability. He testified that "prolonged" has been interpreted from an "operational point of view" as of indefinite and significant duration - at least for twelve months. Mr. de March testified that the fact that CPP disability benefits are designed to be long-term benefits is also evidenced by the built-in waiting period before "the benefits kick in." Pursuant to section 69 of the Canada Pension Plan Act, where payment of a disability pension is approved, it is not payable immediately. The pension is payable for each month commencing with the fourth month following the month in which the applicant became disabled.

The operational interpretation of "prolonged" is consistent with the interpretation given to this word by the Canada Pension Plan Appeals Board. The decisions of the Appeals Board indicate that if at the time of the application for CPP disability pension, an applicant's disability is likely to last for a fixed or known or short duration or if there is prospect for recovery and the applicant is likely to be employed in the reasonably foreseeable future, the CPP disability pension will not be granted.¹⁵

The disability pension payable to a contributor is a flat rate benefit (an amount unrelated to the contributor's previous earnings paid) plus 75 per cent of the amount of the contributor's retirement pension which in turn is based on the contributor's previous earnings paid or pensionable earnings.¹⁶

A CPP disability pension is payable until the contributor ceases to be disabled, i.e., his or her disability is no longer considered to be "severe" and "prolonged"according to the Canada Pension Plan Act, or the contributor begins to receive a CPP retirement pension, or at the age of 65 or when he or she dies.¹⁷

A recipient is required to notify the CPP of any changes that may affect his or her eligibility for the CPP disability pension: i.e., if the recipient's medical condition improves, or if he or she returns to any work full-time, part-time, temporarily or on a seasonal basis, or if he or she decides to go to work for a trial period, or he or she successfully completes a school, college, university, upgrading or retraining program.¹⁸ Additionally, periodically, CPP reviews some of its clients' files to make sure that they are still eligible for disability benefits. Mr. de March testified that the clients whose files are reviewed are selected randomly from groups identified as "high risk” based on age and type of medical condition. Re-assessments may also be triggered from third party complaints, Revenue Canada or Unemployment Insurance.¹⁹

Are CPP disability benefits "temporary disability benefits"?

Co-operators contends that CPP disability benefits ought to be classified as "temporary disability benefits" for the purpose of section 75(4)1 of the Schedule. Co-operators acknowledges that an applicant can only qualify for the benefits if he or she has a severe and prolonged disability. However, Co-operators argues that "temporary" does not mean short-term or for a definite period of time. If something is long continued and of indefinite duration, it can still be temporary so long as it is not permanent. Co-operators relies on the decision of J. Holland J. of the Ontario High Court of Justice in Navin v. Gore Mutual Insurance Co. et al.²⁰ and the decision of Arbitrator Julaine Palmer in Sharma and Co-operators General Insurance Company²¹ in support of its argument.

Co-operators submits that a CPP disability pension is not permanent. Co-operators submits that a CPP disability pension is not like a workers' compensation pension which is payable for life and continues to be paid to a recipient even if he or she returns to work. Conditions are attached to a CPP disability pension, and the pension is always subject to review. If a recipient's medical condition improves, if the recipient returns to full-time or part-time work or a trial period of work, if a recipient attends school or university, takes a trade or technical training or is engaged in rehabilitation, the payment of the CPP disability pension may be terminated. Co-operators submits that since a CPP disability pension is not permanent, it is temporary.

I do not accept Co-operators submission that CPP disability benefits are "temporary disability benefits."

"Temporary disability benefits" are specifically defined in section 1 of the Schedule as follows:

"temporary disability benefits" means,

(a) benefits paid under Part II, III or IV of this Regulation,

(b) benefits paid under Part V of this Regulation, unless the benefits are paid more than 104 weeks after the onset of the disability,

(c ) benefits paid under section 32 of this Regulation,

(d) benefits paid under Part IV of Regulation 672 of the Revised Regulations of Ontario, 1990, unless the benefits have been paid for more than 156 weeks,

(e) benefits paid under Part II of Subsection 2 of Schedule C to the Insurance Act as it existed before June 22, 1990, unless the benefits have been paid for more than 104 weeks,

(f) benefits paid under section 37, subsection 43(9) or subsection 147(2) of the Workers' Compensation Act, or

(g) any other periodic temporary benefit paid under an income continuation plan or law, other than,

(I) unemployment insurance benefits,

(ii) benefits paid under Part V of this Regulation more than 104 weeks after the onset of the disability,

(iii) benefits paid under Part IV of Regulation 672 of the Revised Regulations of Ontario, 1990 for more than 156 weeks, or

(iv) benefits paid under Part II of subsection 2 of Schedule C to the Insurance Act as it existed before June 22, 1990 that have been paid for more than 104 weeks. (Emphasis added)

The definition of "temporary disability benefits" does not specifically mention CPP disability benefits. Therefore, I must determine whether they fall within subsection (g): "any other periodic temporary benefit paid under an income continuation plan or law...

The word "temporary is not defined in the Schedule. The word is defined in The Random House Dictionary of English Language as "lasting, existing, serving or effective for a time only; not permanent²² and in Black's Law Dictionary as "(t)hat which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration. Opposite of permanent.²³ The dictionary definitions, the court decision in Navin v. Gore Mutual Insurance Co. et al. (supra) and the arbitration decision in Sharma and Co-operators General Insurance Company (supra) indicate the possible range of meanings that the word "temporary is capable of having. However, in my view, the definition of "temporary disability benefits" in section 1 of the Schedule indicates that this word is used in a special sense in the context of the Schedule.

The definition of "temporary disability benefits" in section 1 of the Schedule specifically identifies or lists those periodic benefits that are to be considered to be "temporary disability benefits" for the purposes of the Schedule. In my view, the catch-all portion of the definition in subsection (g) ("any other periodic temporary benefit paid...") which completes the list must be construed as ejusdem generis²⁴ with the former. The list identifies as "temporary disability benefits," periodic benefits which are of fixed and limited duration only²⁵ and excludes periodic benefits of long and indefinite duration. CPP disability benefits, which I find are periodic benefits of long and indefinite duration, do not fit within the class of disability benefits which fall within the definition of "temporary disability benefits" in section 1 of the Schedule.

The definition of "temporary disability benefits" in section 1 of the Schedule, either expressly or by necessary implication, excludes certain classes or types of periodic benefits. It excludes permanent disability pensions, like the old workers' compensation pensions that were based upon the nature and degree of the injury suffered and were payable for life regardless of the actual effect of the injury upon the recipient's occupational situation. It also excludes disability benefits of long and indefinite duration. For example, it excludes the following:

• benefits paid under Part V of the Schedule more than 104 weeks after the onset of the disability;²⁶
• loss of earning capacity benefits paid under Part VI of the Schedule;
• benefits paid under Part IV (sections 12 and 13) of Regulation 672 for more than 156 weeks;²⁷
• benefits paid under Part II of Subsection 2 of Schedule C to the Act as it existed before June 22, 1990 that have been paid for more than 104 weeks;²⁸
• future loss of earnings benefits under section 43(1) of the Workers' Compensation Act, as amended.²⁹

As in the case of CPP disability benefits, the test for qualifying for some of the benefits on this list of excluded benefits is stricter or more onerous than the test for qualifying for shorter and fixed term benefits.³⁰

Many of the benefits that are excluded from the definition of "temporary disability benefits," like CPP disability benefits, are not "permanent" in the sense that receipt of these benefits is lifelong or unfettered and unconditional. They may cease if the recipient's medical condition improves and he or she is no longer disabled to the requisite degree to qualify for the disability benefits.³¹They are also reviewable at regular intervals.³² Further, like CPP disability benefits, the amount of the benefits is calculated, partially or wholly, on the basis of the recipient's past earnings.³³

Co-operators submits that in this case if the CPP disability benefits received by Mrs. Schekene following the automobile accident are not classified as "temporary disability benefits and therefore not deducted from the weekly benefits payable to her under Part V of the Schedule, she will have been compensated twice for the same loss. Co-operators submits that the weekly benefits that Mrs. Schekene received from Co-operators following the accident, under Part V of the Schedule, were paid to her because she allegedly lost the opportunity to seek employment, if she so chose and therefore suffered a potential loss of income. However, Mrs. Schekene was already being compensated for this loss by the CPP. She was receiving CPP disability benefits because prior to the accident she had sustained an impairment as a result of which she had lost the ability to return to any kind of employment and therefore suffered an income loss. Co-operators submits that it could not have been the intent of the drafters of the Schedule that an automobile insurer provide additional recovery for a loss which is already being covered from another source.

Co-operators submits that section 267(1) of the Act was enacted in 1993 to prevent double recovery by an insured person. It was the intention of the legislators that an insured person should not be able to make double recovery and that payments for loss of income, whatever their source, should be deducted from damages awarded to a person by reason of an automobile accident. Co-operators submits that similarly, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the OMPP Schedule") also prevents double recovery by an insured person. The OMPP Schedule provides a base level of benefits and whether an insured person is claiming weekly benefits under section 12 (Income Benefit) or section 13 (Benefit If No Income), there is to be deducted from the benefits otherwise payable "any payments for loss of income...received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan or ...received under any sick leave plan."

Co-operators submits that the issue of whether CPP disability benefits are to be deducted from benefits otherwise payable under sections 12 and 13 of the OMPP Schedule has been considered in a number of arbitration and court decisions. These decisions have determined that CPP disability benefits are deductible.³⁴ Co-operators notes in particular that in Morin and The Personal Insurance Company of Canada,³⁵ the Director of Arbitrations addressed the issue of the deductibility of CPP disability benefits received by an insured person from benefits otherwise payable under section 13 (Benefit If No Income). She found that CPP disability benefits whether they were paid as a result of a previously existing disability or injury, or as a result of the automobile accident, were deductible from section 13 benefits. In arriving at this conclusion, the Director of Arbitrations reasoned in part as follows:

The context is no-fault insurance. There are no "damages". The legislation provides for a deduction from a benefit otherwise payable. The benefits themselves may not be earning related. There is a benefit conferred on persons involved in automobile accidents from which any earnings related payment is to be deducted...One is drawn to the conclusion that automobile insurers were not meant to be general insurers for all persons who might find themselves involved in automobile accidents. Accordingly, certain payments are deductible. If these payments were to be only 'same accident' ones, the Legislature could have provided for this by a simple use of words as found in other sections of the Schedule.

...The automobile insurer, it seems to me, is not to provide additional recovery for a loss which is already being covered from another source.

Co-operators submits that the weekly benefit payable under Part V of the Schedule is similar to that which is payable under section 13 (Benefit If No Income) of the OMPP Schedule and the Director of Arbitrations' comments in Morin apply in the context of this Schedule (Bill 164) as well. Co-operators submits that although new wording is used in section 75(4)1. of the Schedule, there is simply no evidence that the drafters of the Schedule intended to allow double recovery by an insured person.

I disagree with Co-operators. The Director of Arbitrations' comments in Morin do not apply in the context of this Schedule (Bill 164). The drafters of this Schedule have expressly provided, in section 75(1), that the only "payments for loss of income" that are deductible are "same accident" ones. Therefore, contrary to Morin, even if CPP disability benefits were determined to be "payments for loss of income, they would be deductible only if they were received or available as a result of the same accident and not if they were received in respect of an impairment that occurred before the accident, unless they were "temporary disability benefits."

In this case, Co-operators wishes to deduct from the weekly disability benefits payable to Mrs. Schekene, the CPP disability benefits that she received after the accident in respect of an impairment that occurred before the accident. Accordingly, the issue is whether CPP disability benefits are "temporary disability benefits" and not whether they are "payments for loss of income." I do not find Co-operators' reference to section 267 of the Act, which deals with the issue of the deduction of payments for loss of income from damage awards in tort cases, and to court decisions interpreting and applying this provision, very helpful. Co-operators is also asking me to apply the reasoning from prior arbitration decisions in this case. However, these decisions are also not very helpful because they either deal with the issue of whether CPP disability benefits are "payments for loss of income" or assume that they are "payments for loss of income" in the context of sections 12 and 13 of the OMPP Schedule.

I am not sure that I accept Co-operators submission that the payment of CPP disability benefits and weekly disability benefits under Part V of the Schedule would result in double recovery by Mrs. Schekene or violate the policy against double recovery embodied in section 267 of the Act and the OMPP Schedule. Co-operators submission is based on the assumption that CPP disability benefits are "payments for loss of income" or indemnity for loss of income.³⁶ I note that in its recent decision in Cugliari v. White,³⁷ the Ontario Divisional Court concluded that the benefits which the plaintiff in that case received on account of a CPP disability pension, were made as a result of his disability and were not "payments...for loss of income..." within the meaning of these words as used in section 267 of the Act. Therefore, they were not deductible from the damages assessed in his favour. The Divisional Court reasoned that the event which triggered the plaintiff's entitlement to CPP disability payments was his disability. The disability suffered by the plaintiff constituted a loss for him, the loss being the fact that he had been rendered "incapable regularly of pursuing any substantially gainful occupation...". While such a loss could lead to a loss of income, it was not necessary that it do so in order for the contributor to be entitled to a CPP disability pension.³⁸

Even if CPP disability benefits were determined to be "payments for loss of income", it is clear from a review of the disability benefits expressly excluded from the definition of "temporary disability benefits" in section 1 and from a review of section 75(4)1 of the Schedule that this Schedule does not preclude an insured person from receiving disability benefits of long and indefinite duration in respect of an impairment that occurred before the accident and weekly no-fault or statutory accident benefits at the same time, notwithstanding that the former may be characterized as "payments for loss of income." For example, the definition of "temporary disability benefits" in section 1 of the Schedule expressly excludes from the definition benefits paid under Part II of subsection 2 of Schedule C to the Act as it existed before June 22, 1990 that have been paid for more than 104 weeks.³⁹ However, benefits under Part II of subsection 2 of Schedule C to the Act have been found to be "payments for loss of income" and therefore deductible under s. 13(3) of OMPP Schedule (Regulation 672).⁴⁰ Similarly, the definition of "temporary disability benefits" in section 1 of the Schedule excludes from the definition future loss of earnings benefits under section 43(1) of the Workers' Compensation Act.⁴¹ However, these benefits have been found to be "payments for loss of income" and therefore deductible from weekly income benefits under section 12(4)(b) of the OMPP Schedule.⁴²

Summary & Conclusion

CPP disability benefits, which I have determined are benefits of long and indefinite duration, fall within the class of disability benefits which are excluded from the definition of "temporary disability benefits in section 1 of the Schedule. Therefore, I conclude Co-operators is not entitled to deduct these benefits from any weekly disability benefits payable to Mrs. Schekene under Part V of the Schedule, pursuant to section 75(4)1 of the Schedule.

Expenses:

In view of my decision, I find that Mrs. Schekene is entitled to her expenses of the arbitration hearing in accordance with Ontario Regulation 664, R.R.O. 1990, as amended. If the parties are unable to agree on the expenses payable, they may apply to the Commission to have the expenses assessed.

Order:

1. Co-operators is not entitled to deduct Mrs. Schekene's CPP disability pension from the weekly benefits to which she is entitled under the Schedule. Accordingly, Co-operators shall pay to Mrs. Schekene outstanding amounts and interest on such amounts found to be owing.

2. Co-operators shall pay Mrs. Schekene her expenses incurred in respect of the arbitration hearing.

March 17, 1997

Shemin Manji Arbitrator

Date

APPENDIX A - THE RECORD

The following exhibits were entered into evidence at the hearing:

Exhibit 1 Personal Resume of Terry de March

Exhibit 2 Operational Policies of Human Resources Development Canada, Income Security Programs, re: interpretation of section 42(2) of the Canada Pension Plan Act, as amended.

Exhibit 3 Canada Pension File

Exhibit 4 Brochure by Human Resources Development Canada entitled "Disability Benefits - Canada Pension Plan” (December 1994)

Exhibit 5 Questionnaire for Disability Benefits, Canada Pension Plan Application for Disability Benefits, Canada Pension Plan

Exhibit 6 Brochure by Human Resources Development Canada, Income Security Programs entitled "General Information and Guide to help you complete your application for disability benefits Canada Pension Plan (June 1994)

Exhibit 7 Standard letter from Human Resources Development, Income Security Program Branch, dated October 19, 1995 Canada Pension Plan Disability Benefits, Fact sheet about Reassessing Eligibility (August 31, 1995) Standard letter from Human Resources Development, Income Security Programs, dated February 29, 1996 Disability Reassessment Questionnaire

Exhibit 8 Disability Assessment - Final Summary Report of Link with Work, dated September 18, 1995 Medical Assessment of Link with Work (undated) (date of assessment: August 10, 1995) Functional Abilities Evaluation of Link with Work dated September 19, 1995 Letter from Link with Work dated September 8, 1995

Exhibit 9 List of medications from Pollock & Williams Ltd. for the period January 3, 1994 to April 19, 1996

Exhibit 10 Driveway sealer

Other documents on the record were:

Report of Mediator dated May 26, 1995 Report of Mediator dated September 1, 1995 Application for Arbitration dated September 14, 1995 Response to an Application for Arbitration dated October 16, 1995 Pre-hearing letter dated January 9, 1995 dated September 8, 1995

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 781/94 and 463/96.
2. 2Exhibit 3 - Canada Pension File - Disability Summary Sheet
3. 3These are the words used in the Canada Pension Plan Act
4. 4R.S.C. 1985, Chap. C-8, as amended
5. 5Exhibit 3 - Canada Pension File - Letter from Human Resources Development Canada, Income Security Programs Branch dated March 5, 1996
6. 6Exhibit 3 - Canada Pension File - Health and Welfare Canada, Income Security Programs, Medical Report dated August 26, 1993
7. 7Exhibit 3 - Canada Pension File - Health and Welfare Canada, Income Security Programs, Medical Report dated September 28, 1993 and Report dated September 23, 1993
8. 8Exhibit 8 - Medical Assessment of Link with Work (undated) (date of assessment: August 10, 1995)
9. 9Reports of Mediator dated May 26, 1995 and September 1, 1995 and Pre-hearing letter dated January 9, 1996
10. 10Exhibit 4 - Brochure by Human Resources Development Canada entitled "Disability Benefits - Canada Pension Plan" (December 1994) and testimony of Mr. Terry de March
11. 11Sections 8 and 9 of the Canada Pension Plan Act
12. 12Section 44 of the Canada Pension Plan Act
13. 13Section 42(2) of the Canada Pension Plan Act
14. 14Section 42(2)(a)(i) and (ii) of the Canada Pension Act
15. 15John Bryson v. The Minister of Employment and Immigration (September 14, 1994), Maria Guzzo v. The Minister of Employment and Immigration (June 9, 1995), Mary Butt v. The Minister of Employment and Immigration (July 12, 1995)
16. 16Section 56 of the Canada Pension Plan Act
17. 17Section 70(1) of the Canada Pension Plan Act
18. 18Exhibit 7 - Canada Pension Plan Disability Benefits - Fact sheet about Reassessing Eligibility (August 31, 1995)
19. 19Testimony of Mr. de March and Exhibit 7 - Canada Pension Plan Disability Benefits Fact sheet about Reassessing Eligibility (August 31, 1995)
20. 20[1980] I.L.R. 553
21. 21(February 7, 1994), OIC A-003840
22. 222nd Edition, Unabridged, Random House - New York 1987
23. 23By Henry Campbell Black, (6th Edition), St. Paul, Minn. West Publishing Co. 1990
24. 24This is a rule of construction. The rule is that when particular words are followed by general words, the latter must be construed as ejusdem generis with the former, i.e., the general words must be restricted to the same class as the specific words - See Driedger on the Construction of Statutes (3rd Edition), Butterworths Canada Ltd., 1994
25. 25In respect of benefits paid under Part II, III or IV of the Schedule, an insurer has an obligation to deliver a written offer to an insured person with respect to weekly loss of earning capacity benefits if the insured continues to qualify for benefits under Part II, III or IV 104 weeks after onset of disability; Benefits paid under section 32 of the Schedule can only be paid for a period of 1 year; Benefits paid under section 37 of the Workers’ Compensation Act can only be paid for a period of 1 year (at which time, if the worker continues to be disabled he or she would qualify for future loss of earnings benefits); Benefits paid under subsection 43(9) or 147(2) of the Workers' Compensation Act are only payable while the worker is participating in a vocational rehabilitation program.
26. 26Section 1(g)(ii) of the Schedule
27. 27Section 1(g)(iii) of the Schedule. Regulation 672 is also referred to as the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994.
28. 28Section 1(g)(iv) of the Schedule
29. 29See Deforest and Royal Insurance Company of Canada (July 2, 1996), OIC A95-000415 (under appeal) wherein Arbitrator Eban Bayefsky held that benefits received by Mr. DeForest pursuant to section 43(1) of the Workers’ Compensation Act were not "temporary disability benefits" and therefore not deductible from any benefits otherwise receivable under the Schedule.
30. 30The test for qualifying for weekly benefits under section 12(5)(b) of the Schedule is similar to that for qualifying for a CPP disability pension: whether the injury continuously prevents the insured person from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.
31. 31See section 19(7)(b) of the Schedule (re: benefits for more than 104 weeks under Part V of the Schedule), sections 12(5)(b) and 13(8)(b) of the pre-January 1, 1994 Schedule (re: benefits for more than 156 weeks under Part V) and section 33(3) of the Schedule (re: loss of earning capacity benefits).
32. 32Benefits paid under Part V of the Schedule, Part IV of Regulation 672 and Part II of Subsection 2 of Schedule C to the Act as it existed before June 22, 1990 are not lifelong. The insurer has a right to have the insured person assessed from time to time to determine whether he or she continues to qualify for these benefits. Section 43(13) of the Workers’ Compensation Act provides for a mandatory review of future loss of earnings benefits in the 24 months after the date of initial determination and in the 60 months after the date of initial determination; and, section 33 of the Schedule provides for a mandatory review of the amount of loss of earning capacity benefits three years after loss of earning capacity benefits are first paid to a person and eight years after loss of earning capacity benefits are first paid to the person.
33. 33The amount of the weekly income benefit paid under section 12(5)(b) of the pre-January 1, 1994 Schedule (for more than 156 weeks) is based on 80 per cent of the insured person's gross weekly income from his employment or occupation proceeding the accident. The amount of the loss of earning capacity benefit under the Schedule for an insured person is 90 per cent of the person's pre-accident earning capacity (which is based on the person's net weekly income from employment preceding the accident - see section 28 of the Schedule) minus the person's residual earning capacity. The amount of the future loss of earnings benefits under the Workers' Compensation Act for an injured worker is 90 per cent of the difference between the worker's net average earnings before the injury and the net average earnings that the worker is likely to be able to earn after the injury in a suitable or available employment.
34. 34Caringi and The Wawanesa Insurance Company (February 18, 1993), OIC A-000860, Bruno and Liberty Mutual Insurance Company (May 6, 1993), OIC A-002249, Nand and State Farm Automobile Insurance Company (May 28, 1993), OIC A-001893, Jolin and Jevco Insurance Company (October 27, 1993), OIC A-002187 and Singh and Royal Insurance Company of Canada (October 30, 1995), OIC A-010957. Court decision: Cugliari v. White et al. (1994), 1994 CanLII 7343 (ON CTGD), 21 O.R. (3d) 225 (Ontario Court of Justice, General Division, Caswell J.)
35. 35(February 26, 1993), OIC P-000468
36. 36As noted by the trial judge in Cugliari v. White et al., 21 O.R. (3d) 225 (Ontario Court, General Division) (overturned on appeal by the Divisional Court), section 267 of the Act was passed as a result of recommendations made in the Report of Inquiry into Motor Vehicle Accident Compensation in Ontario (1988) ("Osbourne Report") to put an end to the practice of double recovery as embodied in the collateral source rule. The existing law was that collateral benefits should not be deducted from an award of damages for loss of employment income or income capacity in personal injury cases. However, the Osbourne Report differentiated between indemnity and non-indemnity payments. Payments that represent loss of income were considered to be indemnity payments and thus deductible. Non-indemnity payments, i.e., those payments of a previously determined amount triggered by a certain event, whether or not there had been a monetary loss, and gifts, were not deductible. Section 267 was enacted in accordance with these recommendations.
37. 37(October 4, 1996) O.J. No. 3516
38. 38The Divisional Court noted, inter alia, that there was no provision in the Canada Pension Plan Act whereunder the amount to which a contributor is entitled to be paid under CPP can be reduced or eliminated by reason of other payments of whatever kind and from whatever source having been made or to be made to the contributor by reason of the disability or otherwise.
39. 39Section 1(g)(iv) of the Schedule
40. 40Nand and State Farm Mutual Automobile Insurance Company (May 28, 1993), OIC A-001893 and Jolin and Jevco Insurance Company Supplementary Decision (March 31, 1994), OIC A-002187 and Correction
41. 41See Deforest and Royal Insurance Company of Canada (July 2, 1996), OIC A95-000415 (under appeal)
42. 42Mouawed and Alpina Insurance Company Limited (June 30, 1994), OIC A-003226