Licence Appeal Tribunal
21-000224/AABS – R
RECONSIDERATION DECISION
Before: Christopher Evans
Licence Appeal Tribunal File Number: 21-000224/AABS
Case Name: Hamad Nouracham v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Samia Alam, Counsel Jade Borne, Paralegal
For the Respondent: Leanne Zabudsky, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision in which I found that she was not entitled to an income replacement benefit (“IRB”).
2The applicant seeks reconsideration based on Rule 18.2(b) of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission. She requests that my decision be varied to provide that she is entitled to an IRB.
RESULT
3The request for reconsideration is dismissed.
ANALYSIS
4At issue is whether the applicant is entitled to an IRB under s. 5(1)(1)(i) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), which requires that she have been employed at the time of the accident.
5I made the following findings:
a. The applicant worked on an “on call” basis at a pasta factory. A company would call her when work was available;
b. The applicant’s last day worked was six weeks and one day before the accident;
c. The applicant worked nine of the 17 preceding weeks;
d. When the applicant was offered work, it was for a period of one or several days at most; and
e. The accident did not occur during one of those periods.
6I applied the test set out in Kawa Arab v Unica Insurance, 2022 ONSC 5761 (Div Ct) (“Arab”). The Court held that the existence of an ongoing employment relationship is insufficient to establish that a person is employed within the meaning of s. 5(1)(1)(i), and that there must be an exchange of wages, salary, or other remuneration for services over a defined period: para 29. As the accident did not occur during a period in which the applicant was receiving remuneration for services, I concluded that she did not meet this test.
7The applicant argued that Arab was distinguishable on three grounds:
a. In Arab the applicant was voluntarily absent from work, but in this case the applicant was willing to do work when it was available;
b. In Arab the applicant’s employer issued five Records of Employment and sent the applicant a termination letter, but in this case the employer did neither; and
c. In Arab the applicant did not return to work, but in this case the applicant returned to work in October 2018.
8I held that these alleged distinctions do not change the fact that for a person to be entitled to an IRB under s. 5(1)(1)(i), the accident must occur during a period when the person is receiving remuneration in exchange for services.
9Rule 18.2(b) provides that a request for reconsideration will be granted if the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The applicant does not argue that I made an error of fact. She submits that I made the following errors of law:
a. I failed to distinguish Arab;
b. I misinterpreted s. 5(1)(1)(i) by finding that an ongoing employment relationship only exists when there is an exchange of remuneration for services, and by failing to read s. 5(1)(1)(i) together with s. 5(1)(1)(ii)(A);
c. I misapplied the Arab test by finding that the on-call work arrangement did not constitute employment; and
d. I did not find that she was entitled to an IRB under s. 5(1)(1)(ii)(A) even though she was employed for 26 of the 52 weeks preceding the accident.
10The respondent submits that Arab is not distinguishable and that I applied the test correctly.
Failure to Distinguish Arab
11I did not err in applying the Arab test. This test is not contingent on the facts that the applicant argues are distinguishable. The alleged distinctions are distinctions without a difference.
Misinterpretation of s. 5(1)(1)(i)
12I did not err in finding that the on-call work arrangement was not employment within the meaning of s. 5(1)(1)(i). Being on call did not involve performing any services or receiving any remuneration. Under this arrangement, the applicant would be offered work for one or a few days at a time. The applicant was employed only during those periods.
13I did not find that an ongoing employment relationship only exists when there is an exchange of remuneration for services. I accept that the on-call work arrangement was an ongoing employment relationship, but Arab established that such a relationship does not constitute employment within the meaning of s. 5(1)(1)(i).
14I disagree that this interpretation of s. 5(1)(1)(i) is inconsistent with s. 5(1)(1)(ii)(A), which provides that a person who was not employed at the time of the accident is entitled to an IRB if they were employed for at least 26 of the 52 weeks before the accident or were receiving employment income benefits at the time of the accident. The applicant argues that because s. 5(1)(1)(ii)(A) does not require that a person be earning remuneration at the time of the accident, it is not required by s. 5(