D.K. v. Aviva Insurance Company
Released Date: 05/08/2020
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:
D.K.
Applicant
and
Aviva Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Sandeep Johal
APPEARANCES:
For the Applicant:
Self-Represented
For the Respondent:
Kimberley J. Tye
Heard:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on November 9, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for an income replacement benefit (“IRB”). The parties agree that the applicant is unable to work and is entitled to an IRB, however where the parties disagree is the quantum the applicant is entitled to. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.
3The applicant is a paralegal by profession and is self-represented for the purposes of this hearing.
4The applicant did not provide any written submissions for this hearing other than an email to the Tribunal with the accountant’s report she is relying on in support of her IRB quantum claim.
5The Tribunal attempted to contact the applicant on two separate occasions, once on October 21, 2019 and then again on February 18, 2020 to inquire about whether written submissions were filed. No response was received. The respondent was also contacted and counsel for Aviva advised that they did not receive any submissions from the applicant either.
6Despite not having received any submissions, I have reviewed the entire record of evidentiary materials received from the applicant and my decision is based on a review of all the evidence.
ISSUES TO BE DECIDED
7The following are the issues to be decided:
i. What is the amount of weekly income replacement benefits that the applicant entitled to receive from November 17, 2016 and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8Based on the totality of the evidence before me, I find that the applicant is entitled to an IRB as follows:
a. $289.58 per week from November 9, 2016 to December 31, 2016.2
b. $0.00 per week from January 1, 2017 to December 31, 2017.
c. $131.72 per week from January 1, 2018 to August 30, 2018.
d. $39.08 per week from August 31, 2018 to November 6, 2018.
e. $185.00 per week November 7, 2018 to March 18, 2019 and onwards in accordance with the Schedule.
9The applicant is entitled to interest on any overdue payment of benefits in accordance with the Schedule.
ANALYSIS
Has the applicant proved on a balance of probabilities that she is entitled to the quantum of IRBs claimed?
10It is my finding that the applicant has not proven on a balance of probabilities that she is entitled to an IRB in the amounts being claimed from the accounting report she has submitted as evidence.
11The respondent relies upon the Tribunal case of 17-004906 v Coachman Insurance Company 3 in support of its position that s. 4(3) of the Schedule is the section that applies for self-employed individuals in order to calculate a self-employed persons weekly income or loss.
12Section 4(3) of the Schedule states that a self-employed person’s weekly income at the time of the accident is the amount that would be 1/52 of the amount of the person’s income for the last completed taxation year. Section 4(4) provides the calculation for post-accident self-employment losses.
13The applicant’s accounting report is from RSM Canada Consulting LP. (“RSM”) dated June 27, 2019. In Schedule 2 of that report at page 7, the applicant claims the following weekly IRBs:
$638.91 per week from November 17, 2016 to December 31, 2016
$603.19 per week from January 1, 2017 to December 31, 2017
$611.00 per week from January 1, 2018 to August 31, 2018; and
$557.23 per week from September 1, 2018 to June 30, 2019.
14The respondent submits the RSM report from the applicant is not accurate as the applicant’s weekly income from self-employment was based on 52 weeks before the accident, rather than the last completed taxation year and contrary to s. 4(3) of the Schedule.
15The respondent submits the following is the timeline with respect to the documentation received in support of the quantum.
a. On February 1, 2017, the respondent sent correspondence to the applicant requesting various income documents.
b. On February 9, 2017, the respondent sent further correspondence to the applicant, requesting various income documents pursuant to section 33 of the Schedule.
c. On June 14, 2018, the Respondent sent further correspondence to the applicant, again requesting income documentation.
d. An accounting report from Williams & Partners was received by the respondent dated July 17, 2018.
e. An explanation of benefits was sent to the applicant on July 17, 2018 enclosing the accounting report and indicating that payment is being issued in the amount of $1,904.54.
f. The applicant received an accounting report from RSM dated July 18, 2018.
g. On January 11, 2019, the respondent sent correspondence to the applicant, indicating that it would reinstate her benefits, however, quantum needed to be clarified prior to issuing any payment.
h. A subsequent accounting report from Williams & Partners was received by the respondent dated March 18, 2019.
i. An explanation of benefits was sent to the applicant, dated March 20, 2019, indicating that based on the accounting report of Williams & Partners, an income replacement benefit was to be paid for amounts owing up to March 18, 2019 in the amount of $8,422.13.
j. An explanation of benefits was sent to the applicant, dated July 11, 2019, indicating that based on the accounting report of Williams & Partners, income replacement benefits from March 19 to July 16, 2019 would be paid, and further payments would be paid at a rate of $370.00 on a bi-weekly basis, so long as the applicant is entitled to receive the benefit.
k. A further accounting report from Williams & Partners was received by the respondent dated July 16, 2019.
l. An explanation of benefits was sent to the applicant on July 16, 2019 enclosing the updated accounting report, indicating that income replacement benefits would be paid from July 17, 2019 and ongoing in the amount of $370.00 on a bi-weekly basis.
m. The applicant provided the respondent with further income information on August 16, 2019.
n. An updated accounting report from Williams & Partners was received by the respondent dated August 22, 2019.
o. An email was sent to the applicant with this report on August 23, 2019.
16The respondent further submits the applicant’s IRB report was prepared prior to the amended T2 Corporation Income Tax Return being received from the Canada Revenue Agency (CRA).
17The Williams & Partners report dated July 16, 2019 identifies the differences between the two reports.
a. Williams & Partners calculates the applicant’s income in accordance with s. 4(3) of the Schedule and it appears the RSM report is using a previous version of the Schedule to estimate the applicant’s pre-accident income by using self-employment income over the last 52 weeks rather than the last completed taxation year.
b. RSM is also basing its calculations on the applicant’s representations of her earnings which appear to be inconsistent with the representations the applicant made to Williams & Partners. Furthermore, Williams & Partners has relied on documentary evidence to support its estimates with bank statements and trust and general bank accounts for the business whereas RSM does not refer to any documentary evidence in its reports.
18The respondent submits and relies upon the report from Williams & Partners dated August 22, 2019 in support of its position that the correct amount of IRBs for the applicant should be as follows in accordance with the calculation from s.7(2)(2) of the Schedule:
a. $289.58 per week from November 9, 2016 to December 31, 2016.4
b. $0.00 per week from January 1, 2017 to December 31, 2017.
c. $131.72 per week from January 1, 2018 to August 30, 2018.
d. $39.08 per week from August 31, 2018 to November 6, 2018.
e. $185.00 per week November 7, 2018 to March 18, 2019 (post 104-week period).
19With the onus being on the applicant, I have not been persuaded on a balance of probabilities that the report from RSM should carry more weight than the report the respondent relies upon from Williams & Partners.
20Despite the lack of submissions from the applicant, I place more weight on the report from Williams & Partners as it relies upon the T2 Corporation Income Tax Return for the applicant’s business for the last completed taxation year in accordance with s. 4(3) of the Schedule. Also because the financial amounts being relied upon are based on documentation in support of the weekly income from self-employment and calculated in accordance with s. 7(2)(2) of the Schedule.
ORDER
21As a result of the above and on a balance or probabilities, I find that the applicant is entitled to an IRB as follows:
a. $289.58 per week from November 17, 2016 to December 31, 2016.5
b. $0.00 per week from January 1, 2017 to December 31, 2017.
c. $131.72 per week from January 1, 2018 to August 30, 2018.
d. $39.08 per week from August 31, 2018 to November 6, 2018.
e. $185.00 per week November 7, 2018 to March 18, 2019 and onwards in accordance with the Schedule; and
22Interest on any overdue payment of benefits in accordance with the Schedule.
Released: May 8, 2020
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- S. 6(2)(a) of the Schedule, the respondent is not required to pay an IRB for the first week of the disability.
- 2018 CanLII 81883 (ON LAT)
- S. 6(2)(a) of the Schedule, the respondent is not required to pay an IRB for the first week of the disability.
- S. 6(2)(a) of the Schedule, the respondent is not required to pay an IRB for the first week of the disability.