Licence Appeal Tribunal
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
[A.H.]
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
PANEL: Kate Grieves, Adjudicator
APPEARANCES:
For the Applicant: Stephen Birman, Counsel
For the Respondent: Angela Comella, Counsel
HEARD: In writing on June 26, 2019
OVERVIEW
1The applicant sustained catastrophic injuries in a car accident on January 2, 2017, which also claimed the lives of his wife and young son. Ten days prior to the accident, the applicant entered into a contract of employment. He was scheduled to start his new job two weeks after the accident. A dispute arose regarding whether the applicant was “employed at the time of the accident” and therefore entitled to income replacement benefits under the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”). The applicant commenced an application with the Licence Appeal Tribunal (“Tribunal”) to resolve the dispute.
ISSUE
2The issue to be determined by the Tribunal:
i. Is the applicant entitled to receive a weekly income replacement benefit of $185.00 per week from January 2, 2019 to date and ongoing?
RESULT
3The applicant is not entitled to a weekly income replacement benefit of $185.00 per week from January 2, 2019 to date and ongoing.
ANALYSIS
4In the year prior to the accident, the applicant was a stay-at-home parent and was taking online classes. Ten days prior to the accident, on December 23, 2016, the applicant was hired as a database administrator/analyst [.] He was scheduled to begin working on January 16, 2017.1 He was then catastrophically impaired.
5The sole issue at this point is whether, as a matter of law, the applicant is entitled to claim an income replacement benefit under the Schedule after 104 weeks.
6Pursuant to s. 5(1) of the Schedule, an insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment [emphasis added].
7In accordance with s. 7(2)(ii) of the Schedule, after 104 weeks of disability, the applicant is entitled to claim an income replacement benefit at the minimum amount of $185.
8The applicant submits that he was employed on the date of the accident and is therefore eligible for income replacement benefits under s. 5(1). The respondent takes the position that the applicant’s job offer was an offer of future employment opportunity, and that he did not meet the initial eligibility requirements of s. 5(1).
9The term “employed” is not defined in the current version of the Schedule. An earlier version of the Schedule defined the term as including a person “engaged in employment” “for salary, wages, other remuneration or profit”.2
10I find that the applicant was not employed under the Schedule. He had not commenced working. He had not received any wages or remuneration from [his employer]. He was not providing labour in exchange for compensation at the time of the accident. This is consistent with a line of recent cases, such as Mroue and Zurich, in which the arbitrator found that “the term ‘employed’ entails a commitment to the workforce in exchange for which one’s services are compensated by money or some like advantage”.3 In this same vein, in Jarvis and Jevco the arbitrator noted that the term “employed” was not defined in the statute but that “in common parlance these terms imply a connection to the workforce and connote the concept of an exchange of goods and/or services for value”.4
11The applicant submits that the phrase “employed at the time of the accident” includes individuals who are under a contract of employment even if they are not “actively at work”. To this end, he relies on two cases in support of his position, Sansone v State Farm5 and Lamb v State Farm.6 In Lamb the Court held that “employed at the date of the accident” included persons who had an enforceable contract of employment, and did not require a person to be engaged in actual labour at the time of the accident. I don’t find these cases particularly helpful given that they are almost 40 years old and the legislation has changed significantly (as discussed below). They do not appear to have been referenced in any Ontario accident benefits cases that deal with the more recent versions of the Schedule.
12The modern principle of statutory interpretation has been described by the Supreme Court as follows:
The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament.
Other principles of interpretation…only receive application where there is ambiguity as to the meaning of a provision…What, then in law is an ambiguity? To answer, an ambiguity must be “real”…The words of the provision must be “reasonably capable of more than one meaning. Principles of statutory interpretation require that there is ambiguity in the statute before reading in may be used.
13To interpret the statute as suggested by the