Citation: Coban v. Allstate Insurance, 2023 ONLAT 21-012430/AABS

Licence Appeal Tribunal File Number: 21-012430/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:

Josef Coban

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

VICE-CHAIR:

Sandeep Johal

APPEARANCES:

For the Applicant:

J Coban, Applicant’s son

Joseph Obagi, Counsel

For the Respondent:

Jennifer Griffiths, Counsel

Court Reporter:

Nikita Ivachtchenko

HEARD: by Videoconference:

January 31, 2023

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on October 6, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule (Schedule) Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant was catastrophically injured because of the accident and is paralyzed from the waist down, rendering him a paraplegic. Prior to the accident the applicant was participating in a Work Transition Program (WTP) through the Workplace Safety Insurance Board (WSIB).

3The applicant was employed as a painter when he suffered an injury on the worksite to his right shoulder that prevented him from returning to work in the same capacity. The applicant was then enrolled into the WTP where he was to complete a 2-year study for Architectural Technology.

4The WTP paid the applicant $651.61 per week which was dependent upon the applicant meeting conditions that would change from time to time based on the criteria as set out by the WSIB and managed by a Return-to-Work (RTW) Specialist at the WSIB.

5At the completion of the 2-year program for Architectural Technology, around June of 2018, the applicant and the RTW collaboratively agreed to extend and change the WTP with new terms. The letter dated June 28, 2018 states:

a. Complete a 3^rd year at Algonquin College for the 3^rd year of the Architectural Technology program.

b. Attend a work placement with Cole + Associates (COLE) as a Project Administrator for 37.5 hours per week from July 3, 2018 to August 31, 2018. COLE would not be responsible for paying the applicant as he would still be paid through the WTP.

6The work placement with COLE required a job search and an agreement with COLE as to ensuring that the applicant would be utilizing the skills he was training for, which was clearly expressed in the job duties that the employer provided.

7The letter to the sponsor at COLE stating that as long as the applicant is applying his architectural technician training and related skills, that COLE has discretion over the specific duties carried out. The letter further states that the RTW, the applicant, and the sponsor would meet monthly to monitor and support the placement and ensure that the placement is progressing as expected. During this tenure the applicant would receive $651.61 per week.

8At the end of the summer when the placement agreement was terminating, the RTW, the applicant, and COLE collaboratively agreed to continue the work placement to a reduced capacity of 8 hours per week, while the applicant continued his studies, up to December 21, 2018. The applicant continued to receive $651.86 per week.

9On October 6, 2018 the MVA occurred and the applicant was no longer able to participate in the WTP. The RTW discontinued the WTP in a letter dated October 19, 2018, and that the weekly benefit would stop as of November 5, 2018. At that point the applicant would cease receiving benefits under S43(3) of the Workplace Safety Insurance Act (WSIA). The applicant would then start receiving benefits under S43(2) of the WSIA in the amount of $257.27

Applicant is Entitled to Income Replacement Benefits

10The issue in dispute: Is the applicant entitled to Income Replacement Benefits (IRB). Specifically, was the applicant employed at the time of the motor vehicle accident (MVA).

11I find that the applicant was employed at the time of the accident and is entitled to IRB as per s. 4(5) of the Schedule for the following reasons.

Analysis

12The Schedule does not provide a definition for the word “employed”.

13Section 4(1) of the Schedule provides a definition of “gross employment income” as follows:

a. salary, wages and other remuneration from employment, including fees and other remuneration for holding office, and any benefits received under the Employment Insurance Act (Canada)…

14The applicant submits that the Tribunal reject a strict and narrow interpretation of the term “employed” and submits that the term be given a broad interpretation consistent with the consumer protection nature of the Schedule.

15The insurer submits that the applicant did not meet the burden of proof that he was employed at the time of the accident. The insurer further submits that although the applicant was participating in a part-time work placement with COLE at the time of the accident he was not “employed” due to the fact that his placement was part of a vocational rehabilitation program arranged through WSIB and he was in receipt of disability benefits rather than “employment income” during the relevant pre-accident interval.

THE WORK-PLACEMENT CREATEs AN EMPLOYER/EMPLOYEE RELATIONSHIP

16The three stakeholders prior to the MVA are the applicant, COLE and the Return to Work (RTW) placement manager from WSIB. The applicant and the RTW collaboratively decided to have the applicant apply for a work-placement. After a job search, COLE agreed to sponsor the applicant in the work-placement program. Does this relationship create an employer/employee relationship between COLE and the applicant?

17The applicant submits that in a decision from Divisional Court in Kawa Arab v. Unica Insurance, 2022 ONSC 5761 at para 22 and 29 concluded that to be employed under the SABS for the purposes of determining IRB entitlement requires that an insured be (a) in an employment relationship, and (b) entitled to receive remuneration therefrom.

18The applicant further submits from T. M. v Aviva General Insurance, 2020 CanLII 45485 (ON LAT) at para. 9 and 14

a. that the schedule uses the term “employed” in two senses. One is in the sense of being in an employment relationship. The second adds a need to be remunerated as remuneration is the basis for calculating entitlement; and

b. The 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.

19The respondent submits that the applicant’s benefit from WSIB was paid pursuant to s. 43(3) of the Workplace Safety Insurance Act (WSIA) and was not contingent in any way upon the number of hours worked for COLE during a particular interval. Further, payments received were contingent on his co-operation with all aspect of a labour market re-entry assessment or plan, and not upon the performance of any particular number of hours or duties for the applicant.

20The respondent then submits that WSIB, not COLE had final say over what duties the applicant was to be performing as part of his work placement. The respondent states that it is the WSIB that demands that the applicant is to apply his architectural technician training and related skills to the job he is placed at. That is, WSIB, not the employer, is in control of the applicant’s duties. I find that this statement is not accurate. That is, the employer is in control of the applicant’s duties. It is the responsibility of the RTW and the applicant to search for a job that contains the duties that the WSIB requires the applicant to be performing.

21The applicant replied that the payments received by the applicant under s. 43(3) of the WSIA were always in the discretion of the WSIB under the Act and those preconditions to entitlement changed over time. In July of 2018 those preconditions included employment at COLE. This became part of the WTP program and a requirement to ongoing entitlement to the applicant’s weekly payment of $651.61.

22I am persuaded that the applicant had an employee/employer relationship with COLE. While the WSIB had the pre-condition that the applicant was required to work where he could apply his architectural technician training and related skills, the employer defined the role and job duties. The purpose of the job search was to find an employer that could provide the position that suited the applicant’s training.

23Furthermore, the applicant was required to:

a. Work for 37.5 hours per week during the initial part of the job placement, and then 8 hours per week when he returned to his 3^rd year of studies.

b. Perform the duties of the role of Project Administrator as stated in the Memo from the RTW as to the job description provided by COLE.

c. Report to his supervisor at COLE who worked with the RTW on a regular basis to ensure that the applicant was performing the duties of his placement.

24As a result of the above, I find that the applicant was employed at the time of the accident, and that the responsibilities he was required to perform created an employee/employer relationship.

CONCLUSION

25I am persuaded that the applicant has satisfied the onus of proving that he was employed at the time of the accident.

26I am persuaded that the applicant entered into an employer/employee relationship in that he was required to perform the duties of the job that he was hired to do. The stipulation by the WSIB that the job utilize the skills he is in training for with regards to his education is only reasonable and doesn’t preclude the employer from managing the applicant like any other employee.

27The applicant received remuneration from WSIB and I am persuaded that this remuneration was for employment. The Schedule provides the interpreter with the ability to be just and reasonable, and it is reasonable to connect the remuneration from WSIB directly to the employment with COLE.

28I find that the applicant is entitled to Income Replacement Benefits (IRB) as per the Schedule.