Devi v. Allstate Canada, 2022 CanLII 65662

Licence Appeal Tribunal

Citation: Devi v. Allstate Canada, 2022 ONLAT 20-011690/AABS- PI

Licence Appeal Tribunal File Number: 20-011690/AABS

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:

Raman Devi, Applicant

and

Allstate Canada, Respondent

PRELIMINARY ISSUE DECISION

Vice-Chair: Ian Maedel

Appearances:

For the Applicant: Ramy Akladios, Counsel

For the Respondent: Ian D. Kirby, Counsel

Heard: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on July 2, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted on April 6, 2021 and this matter was scheduled for written preliminary hearing.

3The substantive issues in dispute are income replacement benefits, an award, and interest.

4In a Motion Order dated June 16, 2022, three additional substantive issues in dispute were added including physical rehabilitation, the cost of a vocational assessment, and in-home therapy.

PRELIMINARY ISSUE

5The respondent raised the following preliminary issue:

i. Was the applicant employed for at least 26 weeks during the 52 weeks prior to the accident of July 2, 2019?

PARTIES’ POSITIONS

6The respondent submits the applicant does was not employed for at least 26 of 52 weeks prior to the accident, a prerequisite for entitlement to an income replacement benefit as per s. 5(1)1(ii) of the Schedule. During the applicable period (i.e., July 3, 2018 to July 1, 2019), she was employed for 180 days, or less than 26 weeks. Even with a liberal interpretation of the wording of the Schedule, the applicant has not met the mandatory 26 weeks to qualify for an income replacement benefit.

7The applicant submits she was employed for 26 weeks during the applicable period of July 3, 2018 to July 1, 2019. She was employed for 180 days, which is 25.71 weeks, or 26 work weeks. The applicant relies on the Tribunal Reconsideration Decision in T.S. v. Aviva General Insurance Canada¹ in which Executive Chair Lamoureux relied on a modern approach to statutory interpretation of the Schedule. When s. 5(1)1(ii)A is read in its context and within the consumer protection mandate of the Schedule, 25.71 weeks amounts to 26 weeks. In the alternative, the applicant submits that even if she was employed for only 25.71 weeks, this ought to be rounded up to 26 weeks to align with the consumer protection nature of the Schedule.

8In reply, the respondent submits there is no “rounding up” provision within the Schedule, as proposed by the applicant. Even on a liberal interpretation of s. 5(1)1(ii)A, the applicant has not worked 26 weeks in order to qualify for income replacement benefits.

ANALYSIS

9The eligibility criteria for an income replacement benefit is laid out in s. 5 of the Schedule. Section 5(1) states:

The 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 satisfies one or both of the following conditions:

1. The insured person,

i. was employed at the time of the accident and, as a result of an within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or

ii. was not employed at the time of the accident, but,

A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident.

10The applicant was unemployed and not collecting Employment Insurance on the date of the accident, July 2, 2019.

11Neither party disputes the period at issue is from July 3, 2018 to July 1, 2019. The applicant has the onus to establish she worked 26 of 52 weeks during this period, or 182 of 364 days.

12The respondent submits the applicant worked 180 days between July 3, 2018 to July 1, 2019. The applicant provided evidence that she worked for six employers during this period. The applicant admits she worked 180 days or 25.71 weeks during this period.

13While I do not disagree with the 3 factors of modern statutory interpretation as laid out by Executive Chair Lamoureux in T.S. v. Aviva, that decision was in relation to the applicability of the Minor Injury Guideline and a diagnosis of chronic pain. I find T.S. v. Aviva is of very limited assistance in interpreting s. 5 of the Schedule.

14In the instant matter, it is simply a case of straight addition. The applicant was employed 180 of 364 days, or 25.71 weeks. In order to reach the 26-week threshold, she would have had to be employed for 182 days.

15The wording of s. 5(1)1(ii)A is clear. By utilizing the wording “at least 26 weeks” the Legislature established the minimum threshold eligibility for income replacement benefits. Section 5(1)1(ii)A does not include permissive language, such as “approximately 26 weeks” or “may be employed for 26 weeks”. The minimum threshold of 26 weeks is clear and should be read in the ordinary and grammatical sense of the section and the Schedule.

16The Schedule shall be interpreted as consumer protection legislation, but I cannot impute statutory wording that does not exist. There is no provision of the Schedule that permits me to round up the weeks from 25.71 to 26 weeks. Similarly, I am not persuaded by the applicant’s argument that I should be considering work weeks. Unlike the application of s. 56 of the Schedule, there is no similar provision to s. 7 of the Licence Appeal Tribunal Act², to vary the 26-week threshold in s. 5(1)1(ii)A by considering individual contextual factors.

17Simply put, I am bound by the 26-week threshold outlined in s. 5(1)1(ii)A. The applicant was not employed for the minimum 26 weeks required to qualify for income replacement benefits. Thus, the applicant is ineligible from applying for income replacement benefits.

ORDER

18I find that:

i. The applicant was not employed 26 of 52 weeks as per the threshold in s. 5(1)1(ii)A of the Schedule. Thus, she is ineligible to receive an income replacement benefit.

Footnotes

1. 12018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
2. 2S.O. 1999, c. 12, Sched. G.