K.A. v. Unica Insurance, 2020 CanLII 12707

Citation: K.A. vs. Unica Insurance, 2020 ONLAT 18-011192/AABS

Tribunal File No.: 18-011192/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c.I.8, in relation to statutory accident benefits.

Between:

[K.A.] Applicant

and

Unica Insurance Respondent

DECISION

(Preliminary Issue Raised by The Respondent)

PANEL: Nidhi Punyarthi, Adjudicator

APPEARANCES: For the Applicant: Zeitoon Vaezzadeh, Counsel For the Respondent: Amanda Lennox, Counsel

HEARD: In Writing on: December 17, 2019

OVERVIEW

1On September 26, 2016, the applicant, [K.A.], was involved in a motor vehicle accident. He claimed certain benefits from the respondent, Unica Insurance ("Unica") under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 ("Schedule"). When Unica denied [K.A.'s] claim for benefits, [K.A.] applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") for dispute resolution.

2This matter was ordered to proceed to a preliminary issue hearing in writing.¹ The parties agreed that I can review the evidence and submissions provided and render a decision on the preliminary issue.²

PRELIMINARY ISSUE

3The preliminary issue to be decided is whether the applicant, [K.A.], is ineligible to claim income replacement benefits because he does not meet the criteria of s. 5(1) of the Schedule?

RESULT

4I find that [K.A.] is not eligible to claim income replacement benefits under the Schedule because he does not meet the criteria for entitlement as set out in s. 5(1) of the Schedule.

ANALYSIS

5The eligibility criteria for income replacement benefits include, but are not limited to, the following:

a. The insured person was employed at the time of the accident;³

b. If the insured person was not employed at the time of the accident, the insured person was receiving employment insurance (EI) at the time of the accident;⁴

c. If the insured person was neither employed nor receiving EI at the time of the accident, the insured person was employed for at least 26 weeks during the 52 weeks preceding the accident.⁵

6Section 5(1) of the Schedule is worded such that insurers are only required to pay an income replacement benefit to an insured person who satisfies the required conditions.

7The documentary evidence before me establishes, on a balance of probabilities, that [K.A.] did not meet any of the three criteria paraphrased above. For instance:

a. The Employer's Confirmation Form (OCF-2) filed following [K.A.'s] application stated that [K.A.] had been absent from work since February 11, 2016, and that his last day of work was February 10, 2016.⁶

b. Copies of [K.A.'s] pay stubs from his employer indicate that he was last paid for the period from January 30 to February 13, 2016.⁷

c. Five separate Records of Employment (ROEs) from the employment insurance file all indicate that [K.A.'s] last day of work was February 10, 2016.⁸

d. The employer terminated [K.A.'s] employment by a letter dated November 30, 2016.⁹ This appears to have been a decision made after [K.A.] did not present himself for work after February 10, 2016. There is no evidence to contradict that [K.A.] did not show up for work after February 10, 2016, and that his last pay stub for wages was for the period ending February 13, 2016.

e. The last payment that [K.A.] received for employment insurance benefits, according to employment insurance payment summaries in evidence, was on June 12, 2016.¹⁰

8These records confirm that [K.A.] was neither employed nor receiving employment insurance benefits at the time of the accident on September 26, 2016. They also confirm that [K.A.'s] last day of work was on February 10, 2016 - approximately 32 weeks before the accident. This means that he only worked 20 weeks, as opposed to the minimum requirement of 26 weeks, in the 52 weeks before the accident.

9Counsel for [K.A.] submitted that the term "employed" in the Schedule should be interpreted in a liberal manner. Nonetheless, the exercise on this preliminary issue hearing is primarily one of fact-finding. Even if I were to accept liberal interpretations of the term "employed" as proposed by counsel for [K.A.], the evidence before me does not support any of these proposed interpretations.

10It is difficult to dispute the information contained in the records provided by his employer and the Government of Canada. These records indicate that [K.A.] does not meet the eligibility criteria for an income replacement benefit, as:

a. He was not employed at the time of the accident;

b. He did not receive employment insurance benefits at the time of the accident; and

c. He was not working a minimum of 26 weeks in the 52 weeks before the accident.

11I was also asked by Unica to make an adverse finding as to [K.A.'s] credibility. It is premature for me to make such a finding at this stage. While the instances of inconsistent reporting in the evidence¹¹ cause me concern, I am mindful that [K.A.] has a language barrier and requires interpretation in Arabic. It is appropriate, in my view, to defer the question of credibility to the adjudicator hearing the substantive issues.¹²

CONCLUSION

12The respondent's motion is granted. The applicant is ineligible to claim the income replacement benefit.

13The parties are to comply with the Rules¹³ for the upcoming case conference on March 10, 2020, at 11:00 a.m.

Footnotes

1. 1Order of Adjudicator Aggrey Msosa dated March 14, 2019.
2. 2Order of Adjudicator Nidhi Punyarthi dated December 12, 2019.
3. 3S.5(1)1.(i).
4. 4S.5(1)1.(ii)A.
5. 5S.5(1)1.(ii)A.
6. 6Tab 5, Respondent's Submissions.
7. 7Tab 6, Respondent's Submissions.
8. 8Tab 3, pp.64-69, Applicant's Submissions.
9. 9Tab 4, Applicant's Submissions.
10. 10Tab 7, Respondent's Submissions.
11. 11The Statement of Fact dated October 19, 2016 (Tab 2, Respondent's Submissions) and the OCF-1 dated October 24, 2016 (Tab 3, Respondent's Submissions) both indicate that [K.A.] was employed at the time of the accident. See also Paragraph 15 of the Respondent's Submissions.
12. 12I am also mindful that the decision in 18-002368/AABS followed an in-person hearing as opposed to an in-writing hearing like this one.
13. 13Common Rules of Practice and Procedure – Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission, Effective October 2, 2017.