Citation: N.Z. vs. Economical Insurance, 2020 ONLAT 18-009611/AABS
Released: August 14, 2020
Tribunal File Number: 18-009611/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:
N.Z.
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Craig Mazerolle
APPEARANCES:
For the Applicant: Ludmilla Jarda, Counsel
For the Respondent: Marc Smith, Counsel
Held by In-Person Hearing: October 28 and 29, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident on October 23, 2017. At the time of the accident, he was providing supervisory services to his father’s automobile shop.
2Due to his inability to continue with this work, the applicant applied for an income replacement benefit under the Statutory Accident Benefits Schedule (the “Schedule”).1 When the respondent declined to pay him this weekly benefit, the applicant applied to the Tribunal.
3In addition to an income replacement benefit (in the amount of $280.95 per week), the applicant is requesting an award and interest.
4I find the applicant is entitled to an income replacement benefit in the amount of $280.95 per week. This benefit is payable from October 30, 2017 to December 31, 2017 (with interest). He is barred from receiving this benefit from January 1, 2018 onwards until he has satisfied the s. 33(1) requests detailed below.
5The applicant is not entitled to an award.
INCOME REPLACEMENT BENEFIT
6Section 5(1) of the Schedule states that insured persons are entitled to an income replacement benefit if they sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks” of their pre-accident employment.
7Of importance to this present dispute is s. 4(3), which provides guidance for how to calculate a self-employed person’s pre-accident income:
A self-employed person’s weekly income or loss from self-employment at the time of the accident is the amount that would be 1/52 of the amount of the person’s income or loss from the business for the last completed taxation year as determined in accordance with Part I of the Income Tax Act (Canada).
8In the present matter, there is no dispute over whether the applicant meets the “substantial inability” standard. Rather, there is a disagreement over the weekly amount that the applicant is entitled