T. M. v. Aviva General Insurance
Released Date: 06/19/2020
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:
T. M.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Adrian Nicolini, Counsel
For the Respondent: Michael Silver, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, T.M., was involved in an automobile accident on December 3, 2017, (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). T.M. was denied certain benefits by the respondent, Aviva, and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2T.M. is seeking payment for income replacement benefits (“IRBs”), while Aviva claims that T.M. was paid IRBs in error. As a result, Aviva is claiming a repayment of the IRBs.
3In order to determined if T.M. is entitled to IRBs, then I will need to consider whether she suffers from a substantial inability to complete the essential tasks of her employment.
4If I find that T.M. was not employed, then it will not be necessary to determine if she suffered a substantial inability as a result of the accident. Further, if I find that T.M. is not employed, then I must consider whether Aviva is entitled to a repayment of the IRBs.
ISSUES
5The issues I have been asked to decide are as follows:
a. Is T.M. entitled to income replacement benefits in the amount of $400.00 per week from October 16, 2018, to date and ongoing?
b. Is T.M. entitled to interest on any overdue payment of benefits?
c. Is Aviva entitled to re-payment of the income replacement benefits in the amount of $17,563.50 from T.M.?
FINDING
6Based on a review of the evidence, I find the following:
a. T.M. is not entitled to IRBs in the amount of $393.30 per week from October 16, 2018 plus applicable interest.
b. Aviva is not entitled to a re-payment of benefits.
LAW
7Pursuant 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.
8In accordance with s. 7(2)(1)(i) of the Schedule, the weekly amount of IRBs to which an insured is entitled is 70 per cent of the amount of the gross weekly employment income.
ANALYSIS
Was T.M. employed at the time of the accident?
9T.M. submits that she was employed on the date of the accident and is therefore eligible for income replacement benefits under s. 5(1). Aviva takes the position that T.M. was not employed and that she did not meet the initial eligibility requirements of s. 5(1). I find that the Schedule uses the term “employed” in two senses. One is in the sense of being in an employment relationship. I find T.M. was in an employment relationship. The second adds a need to be remunerated as remuneration is the basis for calculating entitlement. T.M. fails on this part of the definition.
10For the purpose of determining entitlement to IRBs, I find that T.M. was not employed under the Schedule. T.M. had been working full-time since 1988 as an assistant bankruptcy data analyst with the federal government. At the time of the accident, T.M. was on unpaid leave as a result of a fall that happened in March 2017, approximately nine months before the accident.
11T.M. relies on the decision of Joyce v. Co-operators General Insurance Co.,1 in which the Director’s Delegate held that “individuals may retain their status as employees during periods when they are neither performing work nor earning income due to such reasons as illness or an unpaid leave of absence.”
12Although I am not bound by FSCO decisions or those of my fellow Tribunal members, I do find the FSCO case law to be helpful in assisting with the understanding of what it means to be “employed.”
13An earlier version of the Schedule defined “employed” as including a person “engaged in employment” for “salary, wages, other remuneration or profit.” 2 Aviva submits that I should consider this definition of “employed” in the Statutory Accident Benefits - Accidents after December 31, 1993 and before November 1, 1996 Schedule.
14The current, applicable Schedule is silent on what constitutes a person being employed, thereby leaving the meaning open to interpretation. I find this broad wording should be interpreted in favour of the insured as intended by the consumer protection legislation mandate of the Schedule.
15Despite this finding, there is the second part of being “employed” that must also be considered. I find that a part of being employed, pursuant to the requirements under s. 7, is receiving weekly employment income. This is where T.M.’s claim falls short.
16Section 5 must be considered in connection with s. 7 in order to properly determine the sense in which the Schedule uses the word “employed”. T.M. submits and the evidence shows that she was on unpaid leave approximately from the time of the slip and fall in March 2017 and has not returned to work. There is no evidence that T.M. received weekly employment income, therefore, she cannot meet the second part of the requirement to be employed.
17Aviva submits that T.M. fails to meet the three-part criteria under s. 5 of the Schedule. The first, that the insured person be employed at the time of the accident, the second, be employed at least 26 of the 52 weeks prior to the accident, and the third, be receiving benefits under the Employment Insurance Act at the time of the accident.
18Two aspects of Aviva’s argument fail. First, the referenced 1993 Schedule predates the date of the accident in this proceeding, therefore that version of the Schedule does not apply. Secondly, the current version of the Schedule does not require that an insured is working for at least 26 weeks during the 52 weeks before the accident. The requirement is that the insured is employed. It is the third aspect that T.M. is not receiving employment income why she cannot be considered to be ‘employed’.
19T.M. was not receiving employment income or any benefits under the Employment Insurance Act at the time of the accident. T.M. at the time of this proceeding has remained on unpaid leave. There is no evidence of T.M. receiving employment income.
20Based on the aforementioned reasons, and considering Joyce, I find the decision would lead to an absurd result for T.M. That being, T.M. is “employed”, but is entitled to $0 under the IRB.
21For the above reasons, I find that T.M. is not “employed” pursuant to s. 5 of the Schedule. Therefore, I do not need to determine if T.M. suffers a substantial inability to complete the essential tasks of her pre-accident employment.
Is Aviva entitled to a repayment of the IRBs?
22For the reasons that follow, I find that Aviva is not entitled to a repayment of IRBs.
23Aviva’s position is that the time period being considered to calculate IRB repayment is from December 31, 2017 to October 21, 2018, or 42 weeks. T.M. received $17, 563.50 for this period.
24There is no evidence before me that T.M. received employment income during the period of December 31, 2017 to October 21, 2018. Therefore, in accordance with s. 7, 70 per cent of $0.00 gross weekly employment income is zero. There is no employment income with which to calculate entitlement to IRBs. T.M. was paid IRBs in error. Despite this, I must still determine whether Aviva provided proper notice of repayment pursuant to s. 52 of the Schedule.
25Section 52 of the Schedule deals with repayments to insurers. An insurer that provides proper notice may then obtain repayment in the manner described in the notice. I find on the evidence that Aviva did not provide T.M. with proper notice of its request for repayment of IRBs.
26T.M. relies on the limitation period under s. 52(3). Section 52(3) states that if the notice required under s. 52(2) is not given within 12 months after the payment of the amount to be repaid, the insured person who was to receive the notice is no longer liable to repay the amount. The exception to this provision is if the amount was paid to the person as a result of wilful misrepresentation or fraud. There is no evidence of wilful misrepresentation or fraud. Therefore, I must look at Aviva’s service of the notice of repayment.
27T.M. submits that the first IRB payment was issued on February 5, 2018 and the request for repayment was sent on February 1, 2019. This is within the 12-month limitation period. However, T.M. further submits that the notice was delivered to her counsel via e-mail delivery on February 1, 2019. T.M. submits that, pursuant to s. 64(2)(e) of the Schedule, she did not consent to receive notice by electronic means and, thus, that this notice was invalid.
28Aviva does not dispute that the notice was served by electronic means. Nor does it put forth an argument to refute that consent was not provided by T.M. There is no evidence before me that any other copy of the notice was sent by any other means pursuant to s. 64. In addition, Aviva did not put forth any argument that any previous correspondence was sent by e-mail, without complaint, to suggest that T.M. acquiesced this mode of delivery of documents. Therefore, pursuant to s. 64(2)(e), Aviva has failed to provide proper notice of repayment. Consequently, T.M. is not required to repay the IRBs she has received.
CONCLUSION
29For the reasons above, I find that T.M. is not employed pursuant to s. 5 of the Schedule. As such, T.M. is not entitled to IRBs and no interest is payable.
30Aviva failed to provide proper notice of repayment pursuant to s. 64(2)(e) of the Schedule. As a result, Aviva is not entitled to a repayment of IRBs.
31T.M.’s application is dismissed.
Released: June 19, 2020
Derek Grant
Adjudicator
Footnotes
- [1997] OICD No. 132
- Statutory Accident Benefits Schedule – Accidents after December 31, 1993 and before November 1996, O. Reg. 776/93, s. 5.