Citation: Giannoylis v. Travelers Insurance, 2021 ONLAT 20-000280/AABS

Release date: 09/14/2021

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:

Zoes Giannoylis

Applicant

and

Travelers Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Joel E. Lewis, Paralegal

For the Respondent:

Sara Baum, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Zoes Giannoylis, was injured in an automobile accident on August 10, 2018 and sought, among other things, income replacement benefits (IRBs) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Travelers Insurance, the respondent.

2The respondent conceded that the applicant met the test for entitlement to IRBs from February 20, 2019 to January 11, 2021. The parties, however, disagreed on the quantum of IRBs payable during this period and the applicant also sought IRBs for the entire period of August 10, 2018 and ongoing. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on June 18, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to IRBs from August 10, 2018 to February 19, 2019 and, if so, in what amount?

(ii) What is the amount of weekly IRBs that the applicant is entitled to from February 20, 2019 to January 11, 2021?

(iii) Is the applicant entitled to IRBs from January 12, 2021 and ongoing and, if so, in what amount?

(iv) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(v) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant:

(i) Is not entitled to IRBs for the period of August 10, 2018 to February 19, 2019;

(ii) Has failed to provide sufficient particulars to allow me to calculate the amount of IRBs payable during the entitlement period of February 20, 2019 to January 11, 2021;

(iii) Is not entitled to IRBs from January 12, 2021 to date and ongoing; and

(iv) Is not entitled to an award under Regulation 664 and no interest is payable.

ANALYSIS

Income Replacement Benefits

August 10, 2018 to February 19, 2019

6Section 36 of the Schedule sets out the procedure for filing a claim for IRBs. Section 36(2) requires an insured person to submit a completed Disability Certificate (OCF-3) with their Application for Accident Benefits (OCF-1) to the insurer when applying for IRBs. It is only upon receipt of both the OCF-1 and a completed OCF-3 that an obligation of the insurer is trigger under s. 36(4) to, among other options, pay the IRB. Therefore, there is no obligation on the respondent to pay IRBs to the applicant until he submitted both an OCF-1 and a completed OCF-3.

7In this matter, the respondent submitted that the applicant filed his OCF-3 on December 12, 2018 and that it advised him on December 18, 2018 that he had not yet filed an OCF-1.² Although the applicant submitted that he provided an OCF-1 to the insurer on January 11, 2019 via his previous representative, there is no evidence before me that an OCF-1 was submitted on that date. However, there is evidence before me that the applicant faxed his OCF-1 to the respondent on February 20, 2019.³ Therefore, I find that the applicant’s application for IRBs did not comply with s. 36(2) of the Schedule until February 20, 2019 and, therefore, he is not entitled to payment of any IRBs prior to February 20, 2019.

February 20, 2019 to January 11, 2021

8It is undisputed that at the time of the accident, the applicant was working as self-employed construction worker/labourer for a construction business that was owned and operated by his father.

9The applicant’s position is that he is entitled to IRB payments of $361.59 per week based upon a November 7, 2019 Income Replacement Benefit Calculation Report by Jennifer Hyatt, accountant, and Michael Sigworth, accountant, of ADS Forensics Inc.⁴

10The respondent’s position is that while the applicant is entitled to IRBs for this period in dispute, he has not met his onus of establishing the quantum of IRBs to which he is entitled. The respondent submitted that the applicant has not provided sufficient income documentation despite multiple requests from the respondent and from its accountant, BDO.

11The applicant relied upon 17-004906 v. Coachman Insurance Company⁵ to support his position that the respondent had all financial documentation reasonably required to calculate his IRB quantum and that the further information sought by BDO was excessive.

12Section 4 of the Schedule sets out how to determine an insured person’s pre-accident gross employment income for the purpose of calculating IRBs. Section 4(3) applies to those who claim IRBs only on income from self-employment and provides that IRBs is calculated on income from the most recent completed taxation year. It provides the weekly income or loss from self-employment is 1/52 of the amount of the insured’s income or loss for the last completed taxation year.

13Section 7(2) sets out the methodology of calculating weekly base amount as 70% of the pre-accident gross weekly employment income and weekly self-employment income less the pre-accident weekly losses from self-employment.

14The weekly amount of IRBs payable is then calculated as, pursuant to s. 7(1), the lesser of the weekly base amount, as calculated under s. 7(2) minus and any “other income replacement benefit assistance,” or $400.00.

15I find that the applicant’s proposed IRB amount of $361.59 per week as set out in the November 7, 2019 Income Replacement Benefit Calculation Report by ADS Forensics Inc. was incorrectly calculated. The November 7, 2019 report calculated the amount based on the applicant’s income from the 52 weeks prior to the accident, and not on the applicant’s income from the 2017 taxation year.⁶ I find that this was an error as the 2017 taxation year was the most recent completed taxation year prior to the accident as required by s. 4(3). However, I still find that the applicant has proven on a balance of probabilities the amount of his weekly base income for the calculation of IRBs.

16I agree with the Tribunal’s findings in 17-004906 that the applicant is only required to prove his self-employment income in accordance with the Schedule. Similar to the facts in 17-004906, the applicant in this matter provided his income tax returns for the 2017 and 2018 taxation years and I find that his IRB weekly base income amount can be calculated based on these records. As a result, I find that the continuing requests from BDO for supporting documents regarding the applicant’s pre-accident income (other than income tax records), were excessive, as BDO’s focus should have been on the amount accepted by the Canada Revenue Agency (CRA).

17On the evidence, I find that the calculation of the applicant’s weekly base income under s. 7(2) of the Schedule is as follows:

$26,400.00 (2017 gross employment income)⁷

Multiply by 70% = $18,480.00

18This amount is then divided by 52, which results in $355.38 per week of base income. The analysis, however, does not end here. Section 7(3)(a) of the Schedule permits the respondent to deduct 70 percent of any gross employment income received by the insured person after the accident and during the period in which the insured person is eligible to receive IRBs.

19While the applicant submitted no income tax returns and/or notices of assessment for the 2019 and 2020 taxation years, the applicant’s bank statements revealed bank deposits totaling $105,581.00 in 2019 and $73,924.00 in 2020.⁸ These deposits are significant as they do not correspond to the weekly gross income of $20.00 for one hour worked per week at the applicant’s father’s business from August 18, 2018 to October 29, 2019 that was reported by the applicant in the November 7, 2019 Income Replacement Benefit Calculation Report by ADS Forensics Inc.⁹

20The bank deposits were addressed at the June 18, 2020 Case Conference. Adjudicator Driesel ordered the applicant to review the bank deposit discrepancies as identified by BDO and attempt to identify or clarify the issue with the respondent by October 19, 2020. The only response to the Tribunal’s October 19, 2020 Order was an email dated December 1, 2020 to respondent’s counsel from the applicant’s representative. In this email, the applicant’s representative stated:

(i) The post-accident bank deposits related to loans from the applicant’s father and that there was no documentation regarding these loans;

(ii) The applicant borrowed money “from the streets” and there was no documentation regarding this borrowing; and

(iii) The applicant had not provided him with his 2019 Income Tax Return and Notice of Assessment although the applicant advised that this return had been completed.¹⁰

21In terms of clarifying the 2019 and 2020 bank deposits as ordered by the Tribunal, I place no weight on the information contained in the applicant’s representative’s December 1, 2020 email that the deposits were “loans.” There is no evidence before me to support this information.

22As the respondent had requested additional information regarding the applicant’s post-accident income for 2019 and 2020 by way of an order by the Tribunal and the applicant failed to provide sufficient particulars regarding this information, I am unable to determine the amount of IRBs payable for February 20, 2019 onwards to January 11, 2021 given the deduction that the respondent is entitled to make as a result of the applicant’s post-accident income.

23In summary, while the respondent agreed that the applicant was entitled to IRBs between February 20, 2019 and January 11, 2021, the applicant has not met his burden of providing sufficient documentation or evidence that allows me to calculate the quantum of IRBs payable during the entitlement period.

January 12, 2021 and Ongoing

24To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training, or experience.¹¹

25On January 8, 2021, the respondent wrote to the applicant and advised that following six insurer’s examinations, it was of the opinion that the applicant was no longer entitled to IRBs and that his IRBs would be terminated effective January 11, 2021.¹²

26I find that the applicant has failed to prove on a balance of probabilities that he is entitled to IRBs for the period of January 12, 2021 to date and ongoing. The applicant filed no medical evidence for the hearing and made no submissions regarding his entitlement for this period. As a result, I find that the applicant is not entitled to IRBs from January 12, 2021 to date and ongoing.

Award

27Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

28As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

29As there are no benefits owing, no interest is payable.

CONCLUSION

30For the reasons outlined above, I find that:

(i) The applicant is not entitled to IRBs for the period of August 10, 2018 to February 19, 2019;

(ii) The applicant has failed to provide sufficient particulars to allow me to calculate the amount of IRBs payable during the entitlement period of February 20, 2019 to January 11, 2021;

(iii) The applicant is not entitled to IRBs from January 12, 2021 to date and ongoing;

(iv) The applicant is not entitled to an award under Regulation 664; and

(v) No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Hearing Brief of the Respondent, tab 2.
3. 3Hearing Brief of the Respondent, tab 3.
4. 4Applicant’s Responding Submissions, tab 1.
5. 52018 CanLII 81883 (ON LAT) (“17-004906”).
6. 6Supra note 4 at page 5.
7. 7Applicant’s Responding Submissions, tab 1.
8. 8Hearing Brief of the Respondent, tab 16.
9. 9Supra note 4, “Summary of Benefits,” page 1.
10. 10Hearing Brief of the Respondent, tab 17.
11. 11Schedule, s. 6(2)(b).
12. 12Hearing Brief of the Respondent, tab 18.